Negligence is a term of art, but has different meanings in different jurisdictions. In ‘Tort’, damage is an essential ingredient but that element is not necessary in master servant relationship. In criminal law, there are channels of offences based on negligence in which loss or injury is immaterial; it is enough if the act is likely to cause injury or endanger life. Operating a patient without consent is an example of negligence even without actual damage. Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’.
Introduction In an action to recover damages for a breach of contract, there has to be a sufficient connection between the breach and the loss where it must be caused from the breach of contract. ‘Remoteness’ refers to the test of causation that is used to determine the loss caused by a breach of contract. It limits the ability of the plaintiff to recover damages to not too remote losses . Generally, damages would not be considered as remote if the loss suffered was, arising naturally and reasonably foreseeable, and in an unusual loss technically unforeseeable but due to the defendant’s knowledge, was foreseeable. Hadley v Baxendale established the test for remoteness in essence, a test for foreseeability.
The principle of negligence is to determine a guilty party when someone acts in a careless manner and causes injury to another person. Negligence names the careless person legally liable. In order to win, the plaintiff must prove four different elements. The first element that must be proven is Duty of Care. The defendant must have owed the plaintiff legal duty of care.
In reality the tort of passing off seems to be chartering a course where the three elements that make up the classic trinity i.e. goodwill, misrepresentation and damage or the likelihood of same *have been stretched in their application by the courts. It is no longer merely concerned with the Claimant and the misrepresentation of source but is now occupied with the consumer and product misrepresentation even in terms of ‘the quality of the plaintiff’s goods, as to the (non-existing) connection between the defendant and the plaintiff’s goods or business…’ *In its classic form or application all three elements need to be present to give the tort its character of passing off. As such there has to be the referencing of the claimant’s goodwill in the defendant’s trade whereby consumers are misinformed leading to the likelihood of damage or damage. But a consideration of case law reveals a trend which shows the tort has been of a varied nature with the courts extending its reach beyond the classic trinity.
Ltd. According to the test of directness, a person is liable for all the direct consequences of this wrongful act, whether he could have foreseen them or not; because consequences which directly follow a wrongful act are not too remote. The only question which has to be seen in such a case is whether the defendant’s act is wrongful or not, i.e., could he foresee some damage? If the answer to this question is in the affirmative, i.e., if he could foresee any damage to the plaintiff, then he is liable not merely for those consequences which he could have foreseen but for all the direct consequences of his wrongful act. The first authority for the view advocating the directness test is the case of Smith v. London & South Western Railway Company, the railway company was negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry weather.
Under the tort liability law, also known as "the law of negligence", a person is considered liable for committing a tort, if they have failed to satisfy the standard of care - a standard determined by the behavior of a reasonably prudent individual. The tortfeasor's actions are measured against the actions of a reasonably prudent person, and they are found to be below-standard, the individual is guilty of negligence. The tort liability law applies mainly to unintentional torts. In the case of intentional torts and strict liability torts, the defendant is found guilty regardless of negligence. If a wrongful act is done deliberately, the possibility of negligence is ruled out automatically.
The duty of care imposed by law is measured by the degree of carefulness that a reasonable person would exercise in a given situation. Duty to act is a person is under a duty to everyone at all times to exercise reasonable care for the safety and protection of the people and their property. However, in certain special cases, no one is required to aid another in risk. Factual cause is when the defendant’s actions are factual causes of the harm when the harm would not have occurred without such conducts, while scope of liability is a limited liability to those harms that result from risks that made the defendant’s actions tortious. Scope of liability is divided into two parts; foreseeability, which excludes liability for harms that were sufficiently unforeseeable at the time of the tortious act that were not among the risks that made the defendant negligent; and superseding cause, which is an intervening act that relieves the defendant of liability.
THE EFFICIENCY OF STRICT LIABILITY IN CRIMINAL LAW Most offences are now defined by statute. Usually the statute will state whether the offence requires a mental element and also define what the mental element is. Often the definition uses a word or phrase like “knowingly”, “recklessly”, “wilfully” and “dishonestly” in which it gives guidance to the court. But in some statute this kind of word or phrase is absence, hence the court will find that mens rea is not required. And this is basically in what so called strict liability and it is also can be seen an exception to the general principle of a criminal liability.
We know now that this liability gained its basis from the case of Rylands v. Fletcher (1868) . It is a liability for which defendant is held liable even if he was not negligent, had no intention of causing that harm or even made positive efforts to avert the same. Because of this nature of it , it is also referred as “no fault” liability. According to this rule if a person brings any dangerous thing on his land and keeps it and that thing escapes and does the very probable mischief , the person brought it there or who is the owner of this thing will be liable even if he has not been negligent . The liability here arises not because of any fault of defendant but because of the dangerous nature of the thing brought to the land and escape of such thing.
Whether or not the defendant’s conduct would be covered by the defence of necessity will depend on the specific facts of the case. The defence of necessity is not to be confused with that of self-defence (formally known as private defence), the slight difference is that it is not required that the defendant’s action be directed at the perpetrator of an unlawful attack to use defence of necessity. 3. The Current South African Law