Foreseeability: wrongfulness and negligence of omissions in delict – the debate goes on MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA)
Potgieter, J. M.
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The case under discussion involved delictual liability for an omission. The appellant sued the respondent for damages, alleging that the respondent’s negligent omissions had caused or allowed a fire to spread to a plantation, of which the appellant was the beneficial owner. Relief was refused in the High Court and the appeal to the Supreme Court of Appeal was unsuccessful, Leach JA finding that negligence was not proved by the appellant. The most important aspect of Leach JA’s decision was his pronouncement that it is potentially confusing to take foreseeability into account as a factor determining both wrongfulness and negligence. Such confusion could lead to the conflation of these two delictual elements, resulting in wrongfulness losing its important attribute as a measure of control over liability. Accordingly, foreseeability of harm should not be considered in establishing wrongfulness; its role should be confined to the rubrics of negligence and causation. This aspect of the judgment can be supported because it accords with the ex post facto evaluation of wrongfulness, which excludes the utilisation of the ex ante reasonable foreseeability of harm. Be that as it may, until the Constitutional Court confirms Leach JA’s approach to foreseeability and wrongfulness, the question remains as to whether our law will not be impoverished by restricting foreseeability to negligence and legal causation, whilst, in doing so, also disregarding the numerous authoritative judgements acknowledging the role of foreseeability with regard to wrongfulness. Notwithstanding Leach JA’s rejection of the legal duty approach to the wrongfulness of an omission, this approach, which has become engrained in our law of delict, remains very important in establishing wrongfulness in the present field. As a matter of fact, Leach JA himself relied on previous decisions that applied the legal duty approach and also acknowledged the legal duty of a landowner to control or extinguish a fire on its land. However, the judge’s apparent use of negligence in limiting the absoluteness of the legal duty, may cause confusion between wrongfulness and negligence. Leach JA clearly favours the new test for wrongfulness (the reasonableness of holding the defendant liable) in the present context, despite criticism of this test and the fact that it is merely a recent formulation of one variation of the test for wrongfulness. However, there is no indication that the judge specifically applied the new test in establishing the wrongfulness of the respondent’s conduct. Therefore, if the judge endeavoured to set aside the traditional legal duty approach to establish the wrongfulness of an omission, his attempt was unsuccessful. Leach JA’s averment that the importance of the distinction between wrongfulness and fault is criticised by certain academics does not hold water. Finally, it should be borne in mind that foreseeability plays a different role with regard to negligence, on the one hand, and causation, on the other. Whereas, with reference to negligence, harm of a general kind should be foreseeable, foreseeability of the actual harm that has ensued is relevant as regards legal causation.