raheel ahmed

923 Pages·2017·7.95 MB·English

by  Zahra Ahmed

THE EXPLICIT AND IMPLICIT INFLUENCE OF REASONABLENESS ON THE
ELEMENTS OF DELICTUAL LIABILITY

by

RAHEEL AHMED

submitted in accordance with the requirements
for the degree of

DOCTOR OF LAWS

at the

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: Prof JC KNOBEL

JANUARY 2018
Declaration

1. I understand what academic dishonesty entails and am aware of Unisa’s policies in
this regard.
2. I declare that this thesis is my own work. Where I have used someone else’s work
I have indicated this by using the prescribed style of referencing. Every contribution
to, and quotation in this thesis, from the work or works of other people, have been
referenced according to this style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.

Student number: 31448534
Name: Raheel Ahmed

Signature:____________________ Date: 9 January 2018
Summary

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.

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Key terms

Implicit influence of reasonableness
Explicit influence of reasonableness
Fairness
Justice
Public policy
Equality
Values and views of the community

The reasonable person

Interests

Rights

Delictual liability

Liability in tort law

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Acknowledgements
At the outset, I knew that my chosen topic had a very wide scope, but I was assured by
the supervisor of my LLM, Prof Johann Neethling, and by the supervisor of this doctoral
thesis, Prof Johann Knobel, that it would be interesting and stimulating. Indeed, this topic
encouraged me to think about the law of delict holistically and on a deeper level.
However, even after completing this thesis, I feel as if I have only scratched the surface
and that there is still so much more research I can do in this area. I therefore look forward
to continuing this research!
In truth there are so many people that I need to thank for assisting me in the completion
of my thesis and even though I am not naming everyone who assisted me I am grateful
to each one for their assistance.
I must firstly thank my creator, Allah, for giving me the knowledge, strength, guidance
and patience to complete this thesis.
I wish to express my gratitude to the following persons who contributed to the completion
of my thesis:
• My employer, Unisa (the University of South Africa), for awarding me the “Academic
Qualification Improvement Programme” grant. With this grant, I was given the
opportunity to visit a number of esteemed colleagues in the United Kingdom and the
United States of America. I was able to take study leave for three years and complete
this thesis.
• My supervisor, Prof Johann Knobel, for his support, guidance, wisdom, and patience.
Johann gave me the freedom to write in the style I wanted and with the depth required
for this research. He read my longer chapters more than once, and always meticulously
checked my language, advised me where there were gaps in my research, and where I
needed to be more clear in what I wanted to say. It was an absolute pleasure to work
with him.
• Dr Vanessa Wilcox, the Secretary General of the European Law Institute, for
introducing me to, and giving me the contact details for, Prof K Oliphant, Prof O
Moréteau, and Prof M.D Green. Vanessa has also assisted me in obtaining valuable
material for my thesis published by ECTIL (European Centre of Tort and Insurance Law).
• Prof Ken Oliphant (from the University of Bristol in the United Kingdom), and his wife
Annelise, for being such gracious hosts during my research visit to Bristol. Ken
immediately provided me with a list of sources and ensured that I had access to the
library at the University of Bristol. Of particular importance, Ken advised me on which
torts I should focus on and arranged for me to give a lecture on my research topic to the
colleagues in his department. I gained valuable feedback and insight from these
colleagues, which shaped my chapter 4 on the law of the United Kingdom.
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• Prof Olivier Moréteau (from Louisiana State University, Paul M. Hebert Law Center, in
the United States of America), and his wife Marie-Antoinette, for being such gracious
hosts during my research visit to Louisiana. Olivier assisted me with the sources on the
law of France for my chapter 6. My French is rather rusty, but Olivier provided me with
authority in English and links to websites where I was able to find French case law and
the French Civil Code. Olivier made researching French law a pleasure. A special thank
you to the subject librarians and all the colleagues at Louisiana State University who
assisted me with finding my reading material, including the Dean, Tom Galligan, for his
advice on sources of tort law and what to include in my chapter 5 on the law of the United
States of America.
• Prof Michael Green (from Wake Forest School of Law in the United States of America)
who provided me with a comprehensive list of books and articles related to my research
topic. This formed the basis of the reading material for my chapter 5 on the law of the
United States of America and helped shape my final chapter 5.
• Mr Nico Ferreira for his assistance with the bibliography, abbreviations, and for
checking the correctness of all my footnotes. Ms Karen Breckon (from Unisa) for editing
chapters of my thesis. Ms Yegis Naidu (from Unisa) for continuously assisting me with
finding cases and journal articles whenever I had difficulty finding them.
• My friends and colleagues at Unisa, in particular, Prof JM Kruger and Prof CJ Pretorius,
my CoDs who were so supportive before and during my study leave. Prof M Mokotong,
and Prof L Steynberg for their continuous support throughout my career at Unisa – they
have always been so kind and caring. A special thank you to my friend and colleague,
Mrs Razia Mahomed, who effortlessly took over all my tuition duties while I was on study
leave.
• Last, but not least, I must thank my family. Words cannot even begin to express my
gratitude to my soulmate, Suleman Ahmed, who has been a pillar of support throughout
my career. My sisters Umayya and Safiyya, my brother-in-law Ozayr, and my parents
Altaf and Aniza, for their encouragement and support. Thank you to my triplets too,
Zahra, Muhammed Hassan and Muhammed Akbar, who have been looking after me and
have been so patient with having an absent mother for almost three years! A special
thank you to my daughter, Zahra, for helping me to format my thesis and my contents
page.
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Abbreviations

A Appellate Division

AC Appeal Court

AD Appellate Division

Ala Alabama Supreme Court

Ala App Alabama Court of Civil Appeals

Alaska Alaska Supreme Court

ALL ER All England Reports

ALL SA All South African Law Reports (LexisNexis)

ALR Australian Law Reports

Anglo-Am L Rev Anglo-American Law Review

Ariz Arizona Supreme Court

Ark Arkansas Supreme Court

Ass plén Assemblée pléniaire de la Cour de Cassation

ATRA American Tort Reform Association

Aust Bar Rev Australian Bar Review

BCLR Butterworths Constitutional Law Reports

BG Bophuthatswana General Division

BGH Bundesgerichtshof (Germany)

BK Beslote Korporasie = Closed Corporation = CC

Buff L Rev Buffalo Law Review

B U L Rev Boston University Law Review

Bull ass plén Bulletin des arrêts de la Cour de
cassation, assemblée pléniaire

Bull civ Bulletin des arrêts de la Cour de cassation,
chambres civiles

Bull crim Bulletin des arrêts de la Cour de cassation,
chambre criminelle
v
C Cape Provincial Division

CA Court of Appeal

Cal California Supreme Court

Cal App California Appellate Reports

Cal L Rev California Law Review

Camb LJ Cambridge Law Journal

Can Bar Rev Canadian Bar Review

CC Closed Corporation

CC Constitutional Court

CC French Civil Code

CE Conseil d’État

Ch Official Law Reports (Chancery Division)

Chi Kent L Rev Chicago-Kent Law Review

Ch mixte Chambre mixte de la Cour de cassation

Ch réun Chambres réunies de la Cour de cassation

CILSA Comparative and International Law Journal of
Southern Africa

Civ Cour de cassation (chambre civile)

CJPH Canadian Journal of Philosophy

Clev St L Rev Cleveland State Law Review

CLJ Cambridge Law Journal

CLP Current Legal Problems

Colo Colorado Supreme Court

Colo App Colorado Court of Appeals

Colum L Rev Columbia Law Review

Com Chambre commerciale de la Cour de cassation

Conn Connecticut Supreme Court
vi
Crim Chambre criminelle de la Cour de cassation

D Durban and Coast Local Division

D Recueil Dalloz et Sirey

DC Recueil critique Dalloz

DC District of Columbia Court of Appeals

Del Delaware Supreme Court

Del Ch Delaware Court of Chancery

DP Recueil périodique et critique Dalloz

E Eastern Cape Division

ER English Reports

F Federal Reporter

Fam LQ Family Law Quarterly

Fla Florida Supreme Court

Fla Dist Ct App Florida District Court of Appeal

Fla L Rev Florida Law Review

F Supp Federal Supplement

Ga Georgia Supreme Court

Ga App Georgia Appellate Reports

Ga L Rev Georgia Law Review

Gaz Pal Gazette du Palais

GP North Gauteng High Court, Pretoria

GNP Gauteng North High Court, Pretoria

GSJ Gauteng South High Court, Johannesburg

Hastings LJ Hastings Law Journal
Harv L Rev Harvard Law Review
Haw Hawaii Supreme Court
Haw App Hawaii Appellate Reports
vii
Idaho Idaho Supreme Court

Ill Illinois Supreme Court

Ill App Illinois Appellate Reports
Ind Indiana Supreme Court
Ind App Indiana Appellate Reports
International Rev L & Econ International Review for Law & Economics

Iowa Iowa Supreme Court

JA Judge of Appeal

JCLS Journal of Civil Law Studies
JETL Journal of European Tort Law
J Law & Econ Journal of Law & Economics
J Leg Studies Journal of Legal Studies

J Marshall L Rev John Marshall Law Review
Kan Kansas Supreme Court
Kan App Kansas Appellate Reports
Kan L Rev Kansas Law Review
Ky Kentucky Supreme Court

Ky LJ Kentucky Law Journal

KZD KwaZulu-Natal High Court, Durban

La Louisiana Supreme Court

La App Louisiana Appellate Reports

La L Rev Louisiana Law Review

L Ed United States Supreme Court Reports, Lawyer’s
Edition

Loy LA L Rev Loyola of Los Angeles Law Review

LQR Law Quarterly Review

LS Legal Studies
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