There can be no doubt, the court held in a further appeal, that in South African law the
ratio of
Liesbosch Dredger v Steamship Edison (regarding damages consisting of expenses incurred as a result of the plaintiff's impecuniosity) has no right of existence. The rigidity of the rule is inconsistent with the flexible approach followed in South African law, as explained in
S v Mokgethi, in particular the flexible criterion whereby the court considers on the basis of policy considerations whether there is a sufficiently close connection between act and consequence. There is no room for the employment of the
ratio of
The Edison in a system where legal causality is determined by asking the following question: Is there a sufficiently close connection between act and consequence? That question has to be answered on the basis of policy considerations and the limits of reasonableness, fairness and justice. The court found that the impecuniosity of the plaintiff as a joint cause of the damage is merely one of the facts which, together with all the other facts of each particular case, has to be taken into consideration in the application of the predominating flexible criterion (the
oorheersende elastiese maatstaf) in terms of which the court determines whether the defendant should be held liable for the damages in question. The question as to the reasonable foreseeability of the damages cannot, the court held, be regarded as the single decisive criterion in determining liability. Reasonable foreseeability can indeed be used as a subsidiary test in the application of the flexible criterion, but it cannot displace it. The importance and efficacy of the predominating criterion in resolving questions of legal causality lies in its flexibility. Any attempt to detract from its flexibility should be resisted. Comparisons between the facts of the case which has to be resolved and the facts of other cases in which a solution has already been found, or which might hypothetically arise, can obviously be useful and of value, and sometimes even decisive, but one should be careful not to attempt to distill fixed or generally applicable rules or principles from the process of comparison. The argument that the plaintiff's claim should "in principle" be rejected was misplaced. There is only one principle: In order to determine whether or not the plaintiff's damages were too remote from the defendant's act to hold the defendant liable, considerations of policy, reasonableness, fairness and justice should be applied to the particular facts of the case. The court held that the respondent had been placed in a quandary which had been caused by the act of the appellant, and that the respondent's conduct in reaction thereto had been reasonable in all respects: To regard his shortage of money and consequent inability to purchase a bakkie as an obstacle to the recovery of his expenses in hiring a vehicle would be unfair and unjust towards him. The period of three months during which the respondent had kept his business going with a hired bakkie was not unreasonably long as against the appellant: It was not unfair or unjust to hold the appellant liable for the expenses which the respondent had incurred during that period in order to maintain his income. As a matter of policy, the damages suffered by the respondent should be the responsibility of the appellant. The court held, accordingly, on the facts, that the respondent, having regard to the predicament in which he had found himself, had not acted unreasonably in hiring a bakkie for a period of three months, and that it was not unfair or unjust to the appellant to hold him liable for the compensation of the respondent's damages. The appeal was dismissed and the decision in the Cape Provincial Division, in
Smit v Abrahams thus confirmed, but for different reasons. == See also ==