oa De Rebus - Negligence and the quasi-arbitrator : the law relating to attributable negligence extended
To summarise the Arenson case for a South African audience, it seems to me that there are two distinct stages:- (1)The case has reinforced Sutcliffe v Thackrah and has dispelled any doubt that may have been left by that case as to the liability (contractual at least) of any person who, when acting in an expert capacity, does so negligently. To this extent, it is neutral as far as South African law is concerned. (2) Insofar as the court went beyond what was necessary to the judgment (particularly Lords Kilbrandon and Fraser), what they have said must be obiter but would open up a dangerous and unexplored world if it were ever to be accepted as law either in England or South Africa. Fortunately, dicta in such cases as Matthews f) Young and Penrice f) Dickinson12 would, if followed keep the liability of any person acting in a judicial capacity within the bounds of Lord Salmon's approach; these dicta would, I believe, not easily be overruled. Thus, even if the English law stretches into some of the wilder reaches of judicial imagining consequent on the Arenson case, I doubt that our courts would follow. In the end, it appears to me that the rule of public policy that pressure should not be brought to bear on any person acting in true judicial or quasi-judicial capacity would be bound to override that of responsibility as enunciated by Lord Simon.
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