By Ashton Naidoo / Partner / Mooney Ford Attorneys

Negligence and recklessness are two distinct legal concepts that are often used interchangeably. In South African law, they are both forms of fault that can lead to liability for damages. However, there are important differences between the two concepts that can affect the outcome of a legal case.

Negligence

Negligence is a form of fault that occurs when a person fails to take reasonable care to prevent harm to another person or their property. In order to establish negligence, the plaintiff must prove that the defendant owed a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff’s harm.

The duty of care is determined by the reasonable person standard, which asks whether a reasonable person in the defendant’s position would have foreseen the harm and taken steps to prevent it. The breach of duty is established by showing that the defendant’s conduct fell below the standard of care expected of a reasonable person. The causation element requires that the plaintiff show that the defendant’s breach was the direct cause of their harm.

For example, in the case of Kruger v Coetzee, the plaintiff was injured in a car accident caused by the defendant’s negligent driving. The court found that the defendant had breached his duty of care by driving at an excessive speed and failing to keep a proper lookout and that this breach had caused the plaintiff’s injuries. The defendant was held liable for the plaintiff’s damages. This test for determining negligence was also enunciated in this matter:

“For the purposes of liability culpa arises if –

(a) a diligence paterfamilias in the position of the defendant–

(i) would foresee the reasonable possibility of his conduct injuring another . . . and causing him . . . loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.”

Recklessness

By comparison, recklessness is a more serious form of fault that occurs when a person intentionally ignores a known risk of harm. To establish recklessness, the plaintiff must prove that the defendant knew or should have known that their conduct posed a risk of harm and that they intentionally ignored that risk.

The test for recklessness is higher than for negligence, as it requires the defendant to take active steps to prevent harm, rather than just avoiding behavior that poses a risk of harm. Recklessness can also be established if the defendant was aware of the risk of harm but proceeded with their conduct anyway, or if they were reckless in their disregard of the risk.

In the case of Minister of Safety and Security v Carmichele, the plaintiff was raped by a police informant who had previously been convicted of rape. The court found that the police had been reckless in failing to take reasonable steps to prevent the informant from committing another rape, despite their knowledge of his previous conviction. The police were held liable for the plaintiff’s damages.

To sum it up, negligence and recklessness are two distinct legal concepts that can lead to liability for damages under South African law. While negligence involves a failure to take reasonable care to prevent harm, recklessness involves an intentional disregard of a known risk of harm. The standard of care for recklessness is higher than for negligence, and recklessness can be established if the defendant knew or should have known of the risk of harm and intentionally disregarded it. It is important to understand the differences between these two concepts in order to establish liability in a legal case.

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