Liability for omissions

(a) The priest, the Levite and the Good Samaritan

The same is true if we look at the issue of liability for omissions. The Roman lawyers, as will be remembered, did not put occidere or corrumpere per commissionem and per omissionem on a par: there are no abstract statements, nor is there any case law to the effect that Aquilian liability could ensue from "mere" omissions.

way, because in general all damage caused unjustifiably [injurial is actionable, whether caused intentionally fdolus] or by negligence [culpal". Perhmm v. Zoutendyk, in its time, was on the one hand hailed as "a classic example of the method of Roman-Dutch law" (T.W. Price, "Aquilian Liability for Negligent Statements", (1950) 67 SAL] 414), but on the other hand denounced as "the leading heresy in the law of delict" (R.G. McKerron, (1973) 90 SAL] 1; McKerron's view, in turn, has been referred to as "one of the most stupid statements that has yet appeared in South African legal literature": J.C. van der Walt, 1979 TSAR 151). Perhnati v. Zoutendyk concerned liability for negligent statements, and so did Herschel v. Mntpe 1954 (3) SA 464 (A), a decision that adopted a much more conservative line (though how conservative exactly, it is difficult, if not impossible, to state because of the diversity of views expressed by the five judges concerned—"(q]uot judices, tot sententiae" commented G.A. Mulligan. (1954) 71 SAL] 321; "only one Judge... correctly enunciates the proper rules ot law...

~™ For instance, as far as negligent misrepresentation inducing a contract is concerned. Traditionally, the courts have denied delictual liability in these cases (cf. Hainman v. Moolman 1968 (4) SA'340 (A) at 348A-349H; under the influence of English law); but see now Bsso Petroleum Co. Ltd. v. Mardon [1976] 1 QB 801 (CA) (for English law), Kern Trust (Edms.) Bpk. v. Hurler 1981 (3) SA 607 (C); Hutchison, (1981) 98 SAL] 486 sqq. and Boberg, Delict, pp.. 62 sq. (for South African law).

"⁷⁹ The courts often refer to the "duty of care" concept as the appropriate dogmatic tool (cf. e.g. Shell & BP South African Petroleum Refineries (Ply.) Ltd. v. Osborne Panama SA 1980 (3) SA 653 (Di at 659A-660A; Franschhoekse Wynkelder (Ko-operatief) Bpk. v. South African Railways & Harbours 1981 (3) SA 36 (C) at 40A-41F), legal writers tend to find the key to the problem in the requirement of wrongfulness (cf. e.g. Pauw, (1975) 8 Dejttre 31; Hutchison, (1978) 95 SAL] 519; Van der Walt. Delict, n. 24). On the nature of wrongfulness and on its relationship to the duty-of-care concept, cf. Boberg, Delict, pp. 30 sqq.; for a comparative analysis of "duty of care in negligence", see Lawson, (1947—48) 22 Tulane LR 111 sqq.

^Jl" Cf also Coetzee J. in Suid-Afrikaanse Bantoctrust v. Ross enjacobsz 1977 (3) SA 184 (T) at 187.

^a Cf. supra, p. 980. note 185.

^K Supra, p. 1029.

risk of being destroyed or damaged, he had to take appropriate steps to contain and avert the danger; but a duty to act (to help or to rescue) in general did not exist.

"drew sustenance from the... philosophy of individualism, which was content to condone the indifference of the Priest and the Levite and to dismiss the solicitude of the Samaritan as an aspiration merely of private morality".²"⁵

In continental Europe this very restrictive attitude commended itself, of course, to the pandectists; they focused their attention on D. 7, 1, 13, 2²⁸⁶ and argued that liability for omissions was, in principle, excluded.²⁸⁷ Again, therefore, they attempted to turn back the wheel of history, for the natural lawyers had, for all practical purposes, abandoned the distinction between commission and omission and had subjected delictual liability for both forms of human behaviour to the same requirements. Thus, Grotius refers to "culpani omnem, sive in faciendo, sive in non faciendo" and proceeds to state that, according to the law of nature, an obligation arises "ex tali culpa".²⁸⁸ In the same vein (and like a legal textbook) the ABGB declares that damage can arise from an unlawful act or omission; provided only the wrongdoer has been at fault, the injured party may claim damages.²⁸⁹ Some of the later writers of the usus modernus, too, as we have seen,²⁹⁰ had adopted

Ct. Van den Heever. Aquilian Damages, pp. 37 sqq.

"^M4 Cf., in general, Schulz. Principles, pp. 140 sqq.

~^Ì÷ Fleming, Tons. p. 134; cf. also the discussion by Kemp, op.

^Ml* Cf. supra, p." 1029, note 204.

²²⁰ Representative: Windscheid/Kipp, § 455, 2.

Supra, p. 1032.

§§ 12Ó4,1295 ABGB.

²"" Supra, p. 1030.

this view: culpa was the decisive criterion; the kind of conduct displayed was irrelevant.

(b) Modern approach

Unlike in the case of pure economic loss, the pandectist reaction was fairly short-lived and thus even the BGB no longer discriminates between liability for commission and for omission. This does, of course, not entail the imposition of random duties to help the needy, to rescue the imperilled or to warn the incautious. Not every moral duty has a legal counterpart, and thus it is still true to say that a legal duty not to cause harm is much more readily accepted than a legal duty to prevent it.²⁴¹ But whether or not such a duty exists is determined in a flexible manner and not according to blunt and categorical distinctions.

But when is an omission wrongful?²⁹⁷ Are certain standardized

^2|" Boberg. Delict, p. 211; cf. also Kemp. (19851 18 CILSA 163 sqq. (who adopts a very restrictive attitude and argues against a delictual duty to rescue"); Smith, op. cit.. note 8. PP; 29 sqq.

~ " Cf. already supra, p. 999. note 8 and Boberg. Delict, pp. 30 sqq.

Culpa, according to the writers of the usus modernus and the natural lawyers. The modern distinction between unlawfulness and fault appears to go back tojhering (op. cit.. note 243. pp. 4 sqq.").

* For all details, see Boberg. Delict, pp. 210 sqq.

²⁵ Minister van Polish v. Ewe is 1975 (31 SA 590 (Al; but cf. also the earlier cases. ReJ'al v. African Superstate (Pty.) Ltd. 1963 (11 SA 102 (Al at 109E. 117B-C. and 121D-F and Peri-Urban Areas Health Board v. Munarin 1965 (31 SA 367 (Al at 373E.

Halliwell v. Johannesburg Municipal Council 1912 AD 659; Cape Town Municipality v. Paine, 1923 AD 207 at 217; reaffirmed in (and perhaps best illustrated by) a whole string of "municipality cases" (a local authority is not liable ior damage arising as a result of its omission to repair a road within its jurisdiction, unless, by previously building the road, it had introduced a new source of danger which would not otherwise have existed; for details and references, see Boberg, Delict, pp.

For a comparative analysis, cf. Limpens/Kruithof/Meinertzhagen-Limpens, op. cit., note 6, nn. 76 sqq.; Lawson/Markesinis, pp. 71 sqq. As far as English law is concerned, sec Fleming, Toils, pp. 133 sqq. More specifically on liability in negligence for an omission by medical practitioners, see Giesen. op, cit., note 40, pp. 144 sqq., 157 sqq. criteria available with reference to which the crucial policy decision may be made?²⁴⁸ Or may one (must one) refer to specific stereotyped categories of liability in order to determine where to draw the line between the conflicting ideals of laissez-faire and social responsibility? South African courts have invoked the legal convictions of the community as the ultimate criterion,^2yy but apart from indicating that the community's mere moral indignation is irrelevant, this statement does not take us any further. All decisions on the matter of wrongfulness should, after all, reflect the prevailing ideas of what is fair and reasonable under the circumstances. According to Boberg, the previously established categories of liability should be regarded as "crystallised applications of the objective reasonableness criterion".^{[5418] [5419] [5420]} They thus provide, at least in certain areas, some kind of guideline for the proper exercise of the judicial discretion.

(c) " Verkehrsskhenmgspflichten "

German courts, in turn, have over the past six decades developed a comprehensive network of duty situations which are based neither on statute, nor on contract, nor on prior conduct. Of cardinal importance in this context is the concept of " Verkehrssicherungspflichten":*'^[5421] anybody who either establishes, or is in charge of, a source of potential danger for the rights or interests (as enumerated in § 823 I BGB) of other people is obliged to take appropriate precautions to prevent the risk from materializing.^[5422] If he negligently fails to do so, he is liable in delict. Thus, for instance, the owner of a shop has to ensure that no vegetable leaves are lying on the floor,^[5423] municipalities in charge of public roads must ensure safe traffic and are thus obliged, inter alia,^[5424] to carry out the necessary repair works, to remove ice and snow from busy crossings, to examine (and, if necessary, chop down) potentially dangerous trees, or to place and maintain the appropriate signposts and robots, the organizers of a big soccer match or of a rock concert have to ensure the safety not only of the players and spectators but also of the property of those living in the immediate vicinity of the match or concert venue,³⁰⁵ and an innkeeper has to see to it that billiard players do not injure other guests.³⁰⁶ Under cover of the term "Verkehrs- sicherungspjlichten" a vast province of case law has established itself within the German law of delict, defined and contained not by legal rules but by the dictates of social policy as perceived by the judiciary; and as in South Africa, the notion of wrongfulness has thus become a "cloak of respectability"³⁰⁷ for the process of judicial law-making.

6.