Further Reflections on Wrongfulness in the Law of Delict
Authors Anton Fagan
Affiliations: W P Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 18 – 54
This article revisits the author’s article ‘Rethinking wrongfulness in the law of delict’, which was published in this journal in 2005. The author argues that the analysis in the original articles was misleading in two respects. On the one hand, it under-played the extent to which the determination of whether negligent harm-causing conduct was wrongful is regulated by law. On the other hand, it over-emphasised the degree to which that determination depends on the reasonableness of imposing liability. This article aims to correct these flaws. The article discusses the many legal rules which have to be applied in order to determine whether negligent harm-causing conduct was wrongful, before going on to discuss the deeper-lying considerations by which the wrongfulness of negligent harm-causing conduct is to be determined whenever it cannot be determined by application of the law alone, but must be determined also by the exercise of judicial discretion.