1887

n South African Law Journal - The feasibility of the co-existence of concrete negligence and legal causation

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Abstract

A 'concrete' or 'relative' concept of negligence has been said to render legal causation superfluous. However, while a survey of South African literature and case law reveals some support for concrete negligence, it simultaneously shows vigorous support for legal causation as an independent requirement for liability in delict. This contribution argues in favour of the adoption of a consistently concrete approach to negligence. It is more sensible in application than its alternative, the abstract approach to negligence. It is furthermore the only approach that gives effect to the notion that a wrongdoer's liability must in principle not exceed the ambit of his fault. Negligence must be concretely established in respect of every harmful result of the wrongdoer's act. Foreseeability and preventability of harm in general are not sufficient. Nor is it sufficient to establish negligence only in respect of the first harmful result of a wrongful act and to deal with more remote harmful results only under the banner of legal causation. Concrete negligence is compatible with the essence of legal causation as applied by the courts. However, it is submitted that foreseeability is best employed as a criterion of negligence only. Other policy considerations should be employed to establish legal causation.

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/content/ju_salj/124/3/EJC53766
2007-01-01
2016-12-02
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