Common Law in Southern Africa: Conflict of Laws and Torts Precedents

By Peter B. Kutner | Go to book overview

6
NEGLIGENCE

DUTY TO TAKE POSITIVE ACTION

One of the fundamental and difficult questions of negligence law is that of when a person comes under a duty to take positive action. If such a duty exists, there can be liability for harm caused by "negligent omission". This has been addressed by Southern African courts in a number of important decisions.

In Silva's Fishing Corporation (Pty.) Ltd. v. Maweza,1 the plaintiff sought damages for the death of her husband, drowned while a crew member of the Antoinette, a coastal fishing vessel. The Antoinette was part of a fishing fleet owned by the defendant. The defendant employed the skipper, who employed the remaining crew members and paid them a proportion of the value of the fish each caught. According to the plaintiff's declaration, the Antoinette's engine failed and could not be restarted. When the vessel failed to return to its base, the defendant was notified that it was missing and "regarded as being in distress". The Antoinette drifted for nine days-- the first six in calm weather and the last three in storms--during which the defendant was again informed several times that the vessel had not returned and was in distress. Ultimately the Antoinette was wrecked on coastal rocks and all crew members except the skipper were drowned. The plaintiff asserted that the defendant, knowing that the Antoinette was in distress, was under a duty to the crew members to undertake their rescue and failed to take reasonable steps to do so

____________________
1
1957 ( 2) S.A. 256 (A.D.). See 1 Boberg, 230-32; McKerron, Liability for Omissions, ( 1957) 74 S.A.L.J. 256.

-157-

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