The explicit and implicit influence of reasonableness on the elements of delictual liability
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Authors
Ahmed, Raheel
Issue Date
2018-01
Type
Thesis
Language
en
Keywords
Implicit influence of reasonableness , Explicit influence of reasonableness , Fairness , Justice , Public policy , Equality , Values and views of the community , Reasonable person , Interests , Rights , Delictual liability , Liability in tort law
Alternative Title
Abstract
Reasonableness as a concept used in determining delictual liability or liability in tort
law, is either embraced or perceived by some as frustrating. It is a normative concept
which is inextricably linked with the concepts of fairness, justice, equity, public policy
and the values of the community. These concepts assist in providing value judgements
in determining liability.
It is apparent from this study that the influence of reasonableness is predominantly
implicit on the French law of delict, but more explicit on the South African law of delict
and Anglo-American tort law. Its influence varies with respect to each element of tort
or delictual liability. In order to hold a person liable for a delict or tort, it is only
reasonable that all the elements of a delict or tort are present. Common to all the
jurisdictions studied in this thesis is the idea of striking a balance between the defendant’s interests promoted, the plaintiff’s interests adversely affected and the
interests of society. Where liability is based on fault, the reasonableness of conduct is
called into question. In respect of causation whichever test or theory is used, what must
ultimately be determined is whether according to the facts of the case, it is reasonable
to impute liability on the defendant for the factually caused consequences. Whether loss
or harm is required, assumed or not required, the question of the appropriate remedy
or compensation which is reasonable under the circumstances is called into question.
In South African and Anglo-American law, the multiple uses of the standards of the
reasonable person, reasonable foreseeability of harm, reasonable preventability of
harm, whether it is reasonable to impose an element of liability, or whether it is
reasonable to impute liability, often cause confusion and uncertainty. At times, the role
of these criteria with regard to a specific element may be valid and amplified while, at
other times, their role is diminished and controversial. However, there is nothing wrong
with the concept of reasonableness itself; indeed, it is a necessary and useful concept
in law. Rather, it is the way that it is interpreted and applied in determining liability that
is problematic.
Description
Citation
Ahmed, Raheel (2018) The explicit and implicit influence of reasonableness on the elements of delictual liability, University of South Africa, Pretoria, <http://hdl.handle.net/10500/24462>