Is the duty of care doctrine foreign to the principles of Roman Dutch law?
Neethling and Potgieter, referred to in this recent Supreme Court of Appeal judgment, say that the doctrine “is an unnecessary and round about way of establishing what may be established directly by means of the reasonable person test for negligence, i.e., whether the reasonable person would have foreseen and guarded against damage”. In the case before it, it was unnecessary for the Supreme Court of Appeal to decide the issue and it remains open for another day.
The court is correct in stating that the duty of care doctrine has created confusion between the test for wrongfulness, which is the breach of a legal duty not to cause harm, with the test for negligence.
The test for wrongfulness is whether public policy and the legal convictions of the community, constitutionally understood, regard the harm-causing conduct as actionable. Wrongfulness is based on the duty not to cause harm.
That shouldn’t be confused with the duty to take steps to guard against damage in case where a reasonable person in the position of a defendant would foresee damage, would take steps to guard against, and fail to take such steps which is the test for negligence.
Care should be taken to avoid the application of the English “duty of care” doctrine which “straddles both elements of wrongfulness and negligence”.