Wrongfullness
Conduct is wrongful if it infringes on a legal right and, since a duty is the necessary correlative of a right, conduct is wrongful if it breaches a legal duty.
To determine whether a commission or omission is wrongful in a motor vehicle accident the appropriate enquiry is whether the insured driver's conduct constituted a breach of legal duty which arises when:
- reasonablenes, and
- society's legal conviction/feelings demanded it: the boni mores. The boni mores is an objective test based on the criterium of the reasonableness of the action or omission of the insured driver e.g.
The right to use a public road is common to all road users, but a motorist while driving on a public road harms another road users without legal justification is in breach of his legal duty not to harm another road user, he therefore acts wrongfully.
Wrongfulness relates to the consequence of the insured driver's conduct. Driving a motor vehicle negligently is not per se wrongful; it becomes so only when the driver's negligent conduct results in the infringement of the complainants rights i.e. when the claimant suffered a loss or personal injury. In such a case one would take out a personal injury claim.
Conduct is wrongful if it
- Infringes on a legal recognised right of the claimant e.g. a vehicle crossing a red robot; or
- Constitutes a breath of a legal duty owed by the defendant to the claimant.
A legal duty may be imposed by statute or by the operation of Common Law. In the latter instance the imposition of a duty upon the defendant is dependant on the particular circumstances of the case.
The enquiry whether a claimant's rights has been infringed upon is an objective test.
The test ascertaining the existence of a legal duty in a particular case is the foresight of the reasonable man.
The foreseeability formula consists of two separate enquiries
- (a) would a reasonable man in the same circumstances have foreseen the possibility of harm, if yes -
- (b) would a reasonable man have taken measures to guard against the occurrence of such foreseeable harm, if yes -
- then there was a duty of care an we call it contributory negligence.
- Remember that both (a) and (b) must be answered in the affirmative.