DELICT NOTES

Dear Delict students,

Attached please receive your notes for Delict.

LAW OF DELICT – LAWS2DL

2016

 

1.         Introduction to Law

 

The fundamental principle in law is the res perit domino (every person must bear the damage he suffers).

 

However, there are certain instances where the law recognises the shift in the responsibility to bear the damage, from one individual to another.

 

The law of delict regulates the circumstances in which a person is obliged to bear the damage he has caused to another – i.e. circumstances where the person prejudiced has a right to claim compensation from the wrongdoer who has an obligation to compensate him for the damage he has caused him.

 

WHAT IS A DELICT?

 

      A delict is the act of a person which in a wrongful and culpable manner causes harm to another

 

      To be ‘a delict’, a conduct must carry 5 elements, namely, an act (conduct), wrongfulness, fault (culpability), harm (loss or damages), and causation.

 

      If any one element were missing, there is no delict – hence, no liability (except in certain exceptions as in strict liability)

 

 

A DELICT AND A CRIME

 

HOW DOES DELICT DIFFER FROM:-

 

a crime?

 

      Though there are apparent similarities between delict and crime, the two concepts differ fundamentally.

 

      As similarities, a wrongdoer’s conduct may at times be both delictual and criminal in nature,

 

      However delicts are not necessarily crimes, nor crimes necessarily delicts

 

Differences

      Delicts fall under Private Law, whereas crimes fall under Public Law

 

      Private law aims at protecting individual (private) interest while public law is directed at preserving public interests

 

      Their remedies differ in that:-

o   Whereas, criminal sanctions are intended to punish the wrongdoer for transgressing against the public interest,

 

o    delictual remedies are compensatory in nature,

 

 

A DELICT AND BREACH OF CONTRACT

 

 

HOW DOES DELICT DIFFER FROM:-

breach of contract?

 

      Both concepts are forms of wrongful conduct in private law

 

      The primary difference is that breach of contract is only based on non-fulfillment of a contractual obligation,    

and

      A delict arises from infringing a legally recognised interest of another

 

      The primary remedy for breach of contract is enforcement of fulfillment (or performance), or execution of the contract (damages claim is only secondary).

 

      On the other hand, delict is primarily directed at recovering damages (ie. compensation) or satisfaction and NOT on non-fulfillment.

 

      However, there are instances where the two phenomena may overlap.

 

Examples:-

(i)                    a patient is injured as a result of a doctor’s negligence;

 

(ii)                  a lessee damages a leased property of which he is under a duty contractually to return to the lessor, undamaged.

 

In both these instances, action can be both a breach of contract and delict.

 

Lillicrap, Wassenaar & Partners v Pilkington Bros SA 1985 (1) SA 475 (A) 496, 499

 

A firm of consulting and structural engineers (LW & P) undertook to perform professional services for the PB SA, to investigate the suitability of the soil in connection with the planning and construction of a glass plant. LWP & P agreed to the examination, the design and supervision of construction of the plant. After such services had been performed in part, the parties agreed that the agreement was to be assigned to a third party, the assignment having the consequence that LW & P's status changed from being a contractor to a subcontractor vis-à-vis the PB SA.

 

When works were completed it was found that the functioning of the vital areas of the works were impaired as a result of the movements in the soil in the area. Subsequently PB SA sued LW & P in delict to recover damages for the substantial loss it had sustained repairing the faults in the works.

 

PB SA alleged that: (1) LW & P had owed it a duty of care to carry out properly and with professional skill and care the various tasks which it purported to perform, both before and after the assignment of the contract; and (2) that, in breach of the said duty of care, LW & P failed to carry out these tasks properly and with the necessary professional skill and care, thereby causing PB SA damages.

 

It was common cause that the respondent's case was based on delict and, more particularly, the (extended) actio legis Aquiliae.

 

In the Court a quo, LW & P unsuccessfully excepted to PB SA's particulars of claim as, inter alia, not disclosing that LW & P's conduct was wrongful for the purposes of Aquilian liability, particularly in view of the contract between the parties and the subsequent assignment thereof.

 

It was held by the majority (per Grosskopf AJA) that in principle, a concurrence of actions might exist. Nevertheless he held that policy considerations precluded the allowing a delict claim under the circumstances. Namely, there were adequate and satisfactory remedies in contract and the parties had reasonably intended that their reciprocal rights and obligations would be regulated by the contractual arrangements and that they would not be circumvented by the application of the law of delict.

 

However, Smuts AJA (dissenting minority) held that an action for negligent breach of contract is not a barrier to delictual liability. Contrary to the majority, Smuts concluded that, “in fact, policy considerations pointed to a delictual liability and that such exist, both in pre- and post-assignment periods.”

 

What is the Distinction between:-

 

 

Aquilian action and actio iniuriarum?

 

      The Aquilian Action is available for patrimonial loss caused wrongfully and culpably.

 

      It does not matter whether the loss results from physical injury to the corporeal property or person of the plaintiff or was purely economic. This would include negligence misrepresentation and unlawful competition.

 

In Union Government (Minister of R & H) v Warneke 1911 AD 657 it was held that there was no reason why courts would not adapt the doctrine and reasoning of the law to the conditions of modern life, as long as doing so does not do any violence to its principles.

 

      Actio iniuriarum deals with liability for personality injury to one’s good name, dignity, feelings of chastity and privacy. Thus iniuria is defined as ‘the wrongful intentional infringement of or contempt for a person’s corpus, fama or dignitas.’ (Neethling:13) Thus actio iniuriarum deals with satisfaction for injured personality.

 

 

2.         The Law of delict, the Constitution and fundamental (human) rights

 

Infringement of the fundamental rights enshrined in the Bill of rights entitles one to “appropriate relief” as opposed to delictual damages. While those may include the awarding of damages, such a claim is not limited to damages. This was made clear in Fose v Minister of Safety and Security 2001 (4) SA 938 (CC).

F had sued the Minister of Safety and Security for damages arising out of a series of assaults perpetuated by members of the police while acting within the scope and course of their employment. In addition to traditional common law damages, F claimed “constitutional damages’ for exactly the same incidents. The court held that such a remedy is available, where it is necessary to protect and enforce the rights enshrined in the Bill of rights. It will all depend on the circumstances of the case. It held that there was no place for constitutional damages over and above an award for delictual damages. (Pars 67 & 75)

 

The constitutional remedy is aimed at affirming constitutional values: i.e. enforce, protect and vindicate guaranteed rights and the values which underpin them, and to prevent future violations of the bill of rights (pars 19; 61; 82; 83; 96 & 98)

 

On the other hand, delictual damages aim to compensate

 

2     CONDITIONS OF LIABILITY UNDER THE AQUILIAN ACTION PRINCIPLES OF DELICTUAL LIABILITY

 

In order for a person to be liable for a delict causing pecuniary loss under the lex aquilia, the injured person (plaintiff) must prove the following:

 

1.            that the aggrieved party has suffered patrimonial loss (i.e. actual loss capable of   monetary/pecuniary assessment);

 

2.            that the wrongdoer committed some act (or omission);

 

3.            that the act complained of was wrongful;

 

4.            that responsibility for the loss is imputable to the fault of the defendant/wrongdoer i.e.  presence of dolus or culpa;

 

5.            the wrongdoer’s act must have caused the loss suffered by the plaintiff and the resulting harm must not be too remote;

 

 

 

a.                     Conduct

 

      The nature and Characteristics of conduct.

 

1        Conduct may be in the form of commission or omission

Conduct may be a positive act or in a form of omission.

 A positive act may be in word (statement) or in deed (physical conduct).

 

Omission is where one fails to act positively to prevent harm to another. It is in a sense not an act.  However omission takes two forms. It takes a form of purely failure to act positively to prevent harm (i.e. to take precautionary steps to prevent harm). For instance: a police officer does nothing to protect a person being assaulted by other police officers. Minister van Polisie v Ewels [1975] 2 SA 590 (A).

 

It may merely be a case of negligently causing harm to another rather than failure to act. For instance: a farmer fails to cut grass in his farm, which grass caches fire and spills over to a neighboring farm where it causes considerable damage.

 

2        Second, conduct refers to an act of a human being.

o   To make a delict, an act must have been committed by a human being as opposed to an animal.

 

o   However a human being may use an animal or inanimate object as an instrument to inflict harm to another. In such a case the act will be regarded as a human conduct for the purpose of delictual liability.

 

o   In the case of a juristic person, its conduct is any act performed through natural humans who act as its organs.

 

3        Third, the act must be voluntary.

 

o   Only a voluntary act constitutes conduct

 

What is a voluntary act?

 

o   This does not mean that the offender must have desired or willed his wrongful conduct.  Neither should the act be rational.

 

o   It merely means that an act must be subject to control by the will of the actor.

 

o   In turn, this implies that there should exist capacity to direct one’s muscular and bodily movements on the actor, at the time of the alleged wrongful conduct.

 

o   Instances of incapacity include reflexive bodily movements during a state of unconsciousness, such as sleep-walking, amnesia, epileptic fits, black out, extreme intoxication, extreme emotional state, etc.

 

o   The necessary mental capacity could be precluded by a hypnotic state, drug abuse, insanity, etc.

 

o   However, where one causes his own mental incapacity to control his conduct with the intention to cause harm to another, he may still be held liable based on prior voluntary conduct (actio libera in causa).

 

o   It must be shown that such preceding voluntary conduct was committed with necessary fault – i.e. intention.

 

 

THE DEFENCE OF AUTOMATISM

      Where one acted mechanically at a time of committing a delict, his conduct will be voluntary. Thus he may raise a defence of automatism. 

 

      The defendant should not have intentionally created the situation which makes him to be unable to control his bodily movements. He must also not be negligent with regard to his automatism.

 

The instances giving rise to a defence of automatism

      Absolute compulsion, sleep, unconsciousness, a fainting fit, an epileptic fit, serious intoxication, a blackout, reflex movements, strong emotional pressure, mental disease, a heart attack, etc.

 

Wessels v Hall and Pickles (Coastal) (Pty) Ltd 1985 (4) SA 153 C

In this case, while driving a vehicle, the defendant suffered a hypoglycaemic attack resulting in a diabetic coma. He then lost control of the vehicle and caused a collision. He tried unsuccessfully to rely on the defence of automatism to escape liability.

 

According to evidence, the defendant had been aware of his diabetic condition and the possibility of sudden attacks; he knew that needed to take precautionary measures.

 

Thus he was held liable delictually as he had been negligent in causing his incapacity (since he had failed to take the necessary precautions).

 

The question was whether a reasonable person in his position would have foreseen the possibility of causing harm to another and whether he would have taken precautions against it.

 

 

b.         WRONGFULNESS/UNLAWFULNESS

 

      The act complained of must be wrongful.

 

What is wrongfulness?

 

      Wrongfulness is a question of facts – that is, all relevant facts must be interrogated and every possible interpretation of alleged facts has to be considered ex post facto. Firstly, an act or conduct must result into harm, as there is no delict without harm.

 

      An act and its consequences (harm) do not have to occur at the same time, but may always be separated by time and space (Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W))

 

      However, harm on its own is not sufficient to amount into a delict

 

      Instead, harm must have been caused in a manner that is legally reprehensible (that is, there must be a violation of a legal norm) or unreasonable

 

      Therefore the test for wrongfulness is two-fold:

•  has one’s act resulted in any harm? (i.e., has there been an infringement of a legally recognised individual interest?)

 

if yes

 

• was harm caused in a legally reprehensible manner?

 

 

How do you determine what is wrongful?

 

THE TEST FOR WRONGFULNESS

 

1)         Legal Convictions of the Community (boni mores test)

To determine whether or not the infringement of the plaintiff’s interests is unlawful an objective boni mores test is used

 

It is an ex post facto balancing of the interests promoted by the defendant’s act against the interests that he infringed

 

The test is based on the reasonableness or unreasonableness of the defendant’s conduct based on all the circumstances of the case

 

All the relevant circumstances and all pertinent factors must be considered carefully when deciding whether the infringement of the plaintiff’s interests was reasonable or not

 

Factors that are considered include the following: -

Ø  The relationship between the parties involved and the social imposition or denying of liability in a particular situation;

Ø  The extent and nature of harm; Foreseeable or foreseen loss;

Ø  The costs and effort of steps that could have been taken to prevent loss;

Ø  The degree of probability of success of preventative measures;

Ø  The motive of the defendant and knowledge on his part that his conduct would have caused harm;

Ø  Economic considerations;

Ø  Values underlying the Constitution;

Ø  The legal position in other countries;

Ø  The ethical and moral issues; AND/OR

Ø  any other considerations of public interest or public policy

 

 

2)               Wrongfulness as an Infringement of Subjective Rights

      Every legal subject is a holder of subjective rights

 

      Subjective rights include real rights; personality rights; immaterial property rights; personal immaterial property rights

 

      A legal subject has a relationship with the object over which he exercises power (subject-object relationship) and

 

      A holder of subjective rights has a relationship with other legal subjects (subject-subject relationship)

 

      A holder can use his legal object as he pleased only within the boundaries and rules stipulated by law, and

 

      Each subjective right is enforceable against other legal subjects, who has a duty to refrain from infringing upon the relationship between the holder of a right and his legal object

 

NB:     The fundamental facet of this doctrine is that wrongfulness consists of the infringement of a subjective right(s) in violation of a legal norm

 

How does one determine infringement of a subjective Right?

 

 

 

 

Requirements for the Infringement of a Subjective Right

A two-pronged investigation is necessary whether the infringement is wrongful or not:-

 

First, one considers whether the subject-object relationship has in fact been disturbed, that is, has the holder’s use and enjoyment of his right been disturbed? (that is, is there a violation of a legal norm)

 

There can either be a direct violation (through a direct action that impacts on a holder’s powers to use and dispose of his legal object), or

 

An indirect infringement, e.g. cutting water supply that one’s business comes to a standstill thereby causing him economic loss.

 

Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 D

Clarke v Hurst 1992 4 SA 630 D 651

 

Second, (if the answer to the first question is positive), the next question is: was the violation of a legal norm caused in a legally impermissible manner?

 

 

Criterion for determining wrongfulness:

 

      Wrongfulness is determined according to the general criterion of reasonableness.  A conduct is wrongful or unlawful if it is unreasonable, in other words when, in the light of all the circumstances, the defendant is expected to behave in a manner which will not harm the plaintiff (Carmichele v Minister of Safety & Security, supra)

 

      For example, in Moses v Minister of Safety and Security 2000 3 SA 106 (C) (at 114H - H/I and 115A - B/C.), the deceased, in a state of inebriation, had been placed in a cell which had been set aside for the detention of persons arrested for drunkenness and also disorderly conduct.

 

The court held that it was obvious that if such persons were detained in a confined space such as a police cell the possibility of physical conflict was a real risk. In view of the above and the nature of the relationship between the defendant and persons being detained, the defendant's servants had a legal duty to have taken reasonable steps to protect the deceased against assaults by any of the other persons detained in the cell with him.

 

 

In Van Eeden v Minister of Safety & Security 2003 1 SA 389 (SCA), 2002 4 All SA 346 (SCA) par [9] - [12], the court held per VIVIER ADP that:

 [9] … it is reasonable to expect of the defendant to have taken positive measures to prevent the harm. The Court determines whether it is reasonable to have expected of the defendant to have done so by making a value judgment based, inter alia, J upon its perception of the legal convictions of the community and on A considerations of policy. The question [of wrongfulness] in a particular case is thus a conclusion of law depending on a consideration of all the circumstances of the case and on the interplay of the many factors which have to be considered. …

 

[10] In applying the concept of the legal convictions of the community the Court is not concerned with what the community regards as socially, morally, ethically or religiously right or wrong, but whether or not the community regards a particular act or form of conduct as delictually wrongful. The legal convictions of the community must D further be seen as the legal convictions of the legal policy makers of the community, such as the Legislature and Judges. See Schultz v Butt 1986 (3) SA 667 (A) at 679D - E and Premier Hangers CC v Polyoak (Pty) Ltd 1997 (1) SA 416 (A) at 422E - F.

 

E

      Ultimatey, what the law regards as wrongful is essentially a policy consideration depending on the prevailing boni mores of the society at the time.  The conduct becomes wrongful when it is contrary to the law and prevailing norms or when it is legally unreasonable.

 

 

4.1       The bill of Rights

Infringements of rights entrenched in Bill of Rights do not per se entitle a person to sue in delict, or result in successful delictual claims. 

 

Generally, infringement of the bill of rights entitles one to a remedy aimed at affirming constitutional values: that is, to enforce, protect and vindicate guaranteed rights and the values which underpin them, and to prevent future violations of the bill of rights (pars 19; 61; 82; 83; 96 & 98)

 

To found a claim for compensation the fundamental right must (a) be recognised as a subjective right, or create a legal duty in delict, and (b) the infringement of that right or breach of that duty must violate a societal norm.

 

 

For example:

In June/July 1987 Jooste and the defendant had carnal intercourse as G a result of which the plaintiff was conceived and born. They were never married. There is no allegation that they ever cohabited. The plaintiff is in the factual and legal custody and control of Jooste.
Since plaintiff's birth the defendant has refused and/or neglected to admit that the plaintiff is his natural son; to communicate with H him; to render him love, cherishment or recognition; to show any interest in him; and to take any steps which would naturally be expected of a father with respect to his son. As a result of this refusal or neglect the plaintiff has suffered damage in the form of iniuria emotional distress and loss of amenities of life. The plaintiff therefore instituted a delictual action for damages of R450 000, alleging that:

 

(1) the defendant [wa]s under a legal duty to render the plaintiff attention, love, cherishment, and interest; alternatively

 

(2) in terms of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) the defendant is obliged to render the plaintiff such love, cherishment, attention and interest as can normally be expected of a father towards his natural son; among others, The argument on behalf of the plaintiff is simple, and at first blush attractive because of its simplicity: In terms of s 28(1) (b) of the Constitution the plaintiff is entitled to 'parental care'.

 

The court held that children have a legitimate interest in general physical, intellectual and emotional care within the confines of the capabilities of their care givers. Yet it is significant that the Constitution does not state that parents are obliged to love and cherish their children or give them their attention and interest.

 

However it concluded that there rests no legal duty on the defendant to afford the plaintiff his love, attention and affection. The claim is bad in law as a matter of policy.

 

      Thus, infringement of rights in the bill of rights incurs delictual liability if two requirements are met:

 

(a) a right is recognised as a subjective right, or a legal duty in delict was created; and

 

(b) the infringement of that right or breach of that duty violated a societal norm.

 

However the Constitution forms the backdrop of any inquiry into the wrongfulness of any conduct. That is, the bill of rights serves as an integral part of factors used to determine society’s norms.

 

Thus in Carmichele, the court quoting with approval Hefer JA in Minister of Law and Order v Kadir, held that, in determining a legal duty to act, a weighing and the striking of a balance between the interests of parties and the conflicting interests of the community, involves a proportionality exercise with liability depending upon the interplay of various factors.

 

Proportionality is consistent with the Bill of Rights, but that exercise must now be carried out in accordance with the “spirit, purport and objects of the Bill of Rights” and the relevant factors must be weighed in the context of a constitutional state founded on dignity, equality and freedom and in which government has positive duties to promote and uphold such values.

 

Sokhulu v New Africa Publications Ltd 2001 4 SA 1357 (W), 2002 1 All SA 205 (W) par [11]

 

The plaintiff claimed damages against the defendants based on the publication of a headline and an article in the Sowetan Sunday World.

 

[10] The right to an unimpaired dignity is protected by the actio iniuriarum. Such can be invoked when a person is subjected to offensive and degrading treatment or is exposed to ill-will, ridicule, disesteem or contempt. Minister of Police v E Mbilini 1983 (3) SA 705 (A) at 715G - 716A. In Brenner v Botha 1956 (3) SA 257 (T) Boshoff AJ (as he then was) said at 261 in fin - 262:

    'In cases of verbal injury, otherwise than in cases of defamation, the words complained of must impair the plaintiff's dignity and must be insulting in the sense that they must amount to F degrading, humiliating or ignominious treatment.'

[11] There cannot be an impairment of dignitas without unlawfulness and the question whether this requirement is satisfied or not is an objective one answered by having regard to the prevailing norms of society. Delange v Costa 1989 (2) SA 857 (A) at 862B - G. G I agree with the submission made on behalf of the defendants that the statements, viewed according to the rule in Delange , against the backdrop of the Constitution, are not capable of an interpretation which satisfies any of the requirements reflected in para [10] above. It follows that the articles do not violate the plaintiff's dignitas.

 

 

 

4.2       LIABILITY FOR OMISSION

 

      There is no general liability for failure to act to prevent harm or economic loss occurring to another (i.e. omission).

 

      Omission incurs liability only if it was wrongful. Omission becomes wrongful when there has been a legal duty on the defendant to act positively to prevent harm to the plaintiff (Wrongfulness as a Breach of a Legal Duty) - Minister van Polisie v Ewels 1975 2 SA 590 (A).

 

      Thus, it becomes appropriate and necessary to consider whether a legal duty to act positively to prevent harm has been breached. In other words, failure to discharge a legal duty he only incurs delictual liability.

 

      This Inquiry (breach of a legal duty) is not a new test, but is in a way a combination of the two tests. In this case it may be inappropriate to use either the doctrine of boni mores test or the subjective rights’ infringement test to determine wrongfulness.

 

      Generally, Wrongfulness, in the case of omission, is determined by the legal convictions of the community

 

 

Minister of Law and Order v Kadir 1995 (1) SA 303 (A)

The respondent, whilst driving his motor vehicle, had swerved to avoid an inadequately secured bundle of clothing which had fallen off the back of the motor vehicle in front of him. The respondent's car left the road as a result of which he was seriously injured. Shortly after the collision two police constables arrived on the scene and, whilst they were still J present, the driver of the vehicle from which the bundle had fallen returned to the scene to retrieve it. The constables failed to take down the particulars of the offending driver and his vehicle despite having been informed by a witness to the collision of the circumstances under which it had occurred. The respondent thereupon instituted an action for damages against the appellant, contending that there had been a duty on the constables to take down the necessary information relating to the identity of the said driver and that they should have foreseen that a B failure to investigate the collision properly would cause respondent, who was incapacitated at the time, to suffer damages.

 

The Court a quo dismissed the exception, holding that the community would consider that in the circumstances of this case the police had a duty of care to record the relevant information and that the policemen had failed in their legal duty to the respondent. On appeal,

Held, that, viewed objectively, society would take account of the fact that the functions of the police in terms of the Police Act relate to criminal matters and were not designed for the purpose of assisting civil litigants and that therefore society would baulk at the idea of holding D policemen personally liable for damages arising from what was a relatively insignificant dereliction of duty. (At 321H/I-I and 321J-322A.)

Held, accordingly, that the police had not owed the respondent a legal duty to record the information in question (At 321H.)

 

The existence of such a legal duty is a question of facts. A legal duty is established using an objective test. In other words, an inquiry is whether, in particular circumstances, the community reasonably expect one to act or not legally speaking (not morally or ethically)

 

See: Van Eeden v Minister of Safety & Security 2003 1 SA 389 (SCA), [par 9 & 10] 

 

How does one to establish the existence of a legal duty?

 

Some common law indicators for the existence of a legal duty

 

I)          Prior conduct by the defendant

Where one creates danger by means of a positive act, he has a legal duty to act to prevent the danger to the third parties. Failure to prevent danger incurs liability. However, prior conduct is not a pre-requisite for the existence of a legal duty. It is but one of the factor that might prove the existence of a legal duty to act. For years the courts held the view that prior conduct was a pre-requisite for the existence of a legal duty – Halliwell v Jhb Municipal Council 1912 AD 659

 

It was only in 1957 that the view was changed. In Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 2 SA 256 A 264-5, Steyn JA (in the minority decision) held that prior conduct is BUT ONE of several factors which might indicate the existence of a legal duty.

Minister of Forestry v Quathlamba (Pty) Ltd 1973 930 SA 69 A 82

 

 

Moses v Minister of Safety and Security 2000 3 SA 106 (C)

 

The deceased, the plaintiff's husband, had been detained in police cells overnight subsequent to his becoming intoxicated and violent. While he was in a cell he was assaulted by other inmates and later died from the injuries he had sustained. The plaintiff claimed damages from the defendant for loss of support, alleging that the defendant's G servants had been negligent in that they had failed to protect the deceased from being assaulted whilst he was in custody; they had placed him in a cell with 'gangsters' who they knew or ought to have foreseen would assault him; they had failed to exercise reasonable care to prevent the deceased from being assaulted when there was a legal duty on them to do so; and they failed to take reasonable or adequate steps to prevent the assault when by exercising reasonable care they could have done so. The deceased's assailants had been placed in the cell at 22:05 and the next cell inspection had taken place at 22:30.

 

 

The court held that the deceased, in his state of inebriation, had been placed in a cell which had been set aside for the detention of persons arrested for drunkenness and also disorderly conduct. It was obvious that if such persons were detained in a confined space such as a police cell the possibility of physical conflict was a real risk. In view of the above and the nature of the relationship between the defendant and persons being detained, the defendant's servants had a legal duty to have taken reasonable steps to protect the deceased against assaults by any of the other persons detained in the cell with him. (At 114H - H/I and 115A - B/C.)

Further, that a failure to have protected the deceased against assaults by his co-detainees would have been considered wrongful with reference to the prevailing legal convictions of the community at the time.

 

However, evidence showed no negligence on the police part.

 

II)         Control of a dangerous object

      Another factor which may determine wrongfulness is control of a (potentially) dangerous animal or object.

 

       Thus failure to exercise proper control will be prima facie wrongful

 

      Two requisites must be satisfied, namely:-

 

(1)              actual control of an animal or object,

      actual control may be inferred from the fact that one had assumed control over a potentially dangerous situation

 

      it may also be deduced from

 

o   the fact that one was owner of a potentially dangerous object, or

 

o   statutory provisions placing control on the defendant, e.g. Ordinances placing the control of certain roads to local authorities

 

      On the other hand, control per se (on its own) is not a sufficient enough ground to impose liability (to prove wrongfulness)

      But the decisive factor lies on the facts and circumstances of each case; and

 

(2)              whether in all probability (in the light of the control), a legal duty rested on the defendant to prevent harm which might result from failure to exercise proper control

 

Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 A 82

Meter NO v Geo Parkes & Son (Pty) Ltd [2006] SCA 161 (RSA)

 

III)                    A special relationship between the parties

      A legal duty to prevent harm may be inferred from the existence of a special relationship between the parties, examples: a contractual relationship, a policeman and a citizen, a prison warder and a prisoner, and employer and an employee.

 

      In these circumstances a legal duty to prevent harm will be determined against the boni mores of the community, with special attention to the special relationship that existed between the parties

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC);

Minister of Safety & Security v Van Duivenboden 2002 6 SA 431 (SCA)

 

IV) Holding particular office

Where a person holds a particular office that imposes a legal duty to protect the interests of specific persons or the public, a breach of that duty may incur liability. Examples: where one is a trustee, where one is an executor or a liquidator (Macadamia Finance Ltd v De Wet 1991 (4) SA 273 T 279).

 

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)

Minister of Safety & Security v Van Duivenboden 2002 6 SA 431 (SCA)

V)        Rules of Law

Where the rules of law or statutes impose a duty on one, failure to meet that statutory duty is prima facie proof of wrongfulness on the part of the defendant. However, breach of a statutory duty is a factor among a matrix of factors that must be considered in determining the existence of a legal duty. Carmichele v Minister of Safety and Security 2001 (4) SA 938; Minister of Safety & Security v Van Duivenboden 2002 6 SA 431 (SCA)

 

 

VI)       Contractual undertaking for the safety of a third party

If one person undertakes to ensure the safety of third parties (or their property), he violates a legal duty if he fails to honor that undertaking, where such failure to act results to harm to a third party. While the duty may be based on his prior conduct, it may also be inferred from “contractual assumption of responsibility for the safety of a third party”

 

SAR & H v Estate Saunders 1931 AD 276 (Some authors argue that liability should be based on ‘assumption of control of a (potentially) dangerous situation’ rather than contractual undertaking).

 

 

VII)      Creation of impression that the interests of a third party will be protected

Where one party creates an impression that the interests of a third party will be protected, he has a legal duty to prevent prejudice to a third party who acts on that impression. Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 W

 

The creation of impression will be considered together with other factors, such as policy considerations, and boni mores

 

In the above case the court considered the fact that the defendants were in control of the premises; that they had made a contractual undertaking to ensure safety of the interests of the third parties; and the fact that the defendant’s occupation was one of ensuring security.

 

 

VIII) Silence (Self-study)

Silence – the failure to say something – will be actionable only if it conceals something which should have been revealed.

McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C)

Bowley v Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) 401

 

 

GROUNDS OF JUSTIFICATION

Where one is alleged to have wrongfully infringed the interest of another, he can raise a special circumstance which renders his conduct lawful. Grounds of justification get into the heart of wrongfulness. A conduct may be prima facie wrongful for an obvious violation of a protected legal interest, BUT not unreasonable or contra bonos mores. They indicate circumstances in which society condones a prima facie wrongful conduct. As such they are in fact further expressions of society’s legal convictions. –  Mahele v Min of Safety & Security 1999 (1) SA 528 (SCA) 534

 

The defendant bears the onus to prove the existence of a ground of justification. – Mabaso v Felix 1981 (3) SA 865 (A) 874

 

 

1          PRIVATE DEFENCE

 

Requirements for the attack

 

a) The attack must consist of human act

The attack must be an act by a human – not an act by an animal. The act may be both a commission and omission, although in most cases the attack consists of a commission.

 

 

b) The attack must be wrongful

When an attack is threatening or violating one’s legally recognised interest (s), he is entitled to act in defence of his interest. Legally recognised interests include life, bodily integrity, honor and property or possession. R v Ndara 1955 4 SA 182 A 184

 

 

c) The attack must already have commenced or imminently threatening, but not yet ceased

The defence must not be directed against the attack which is sometime in the future. At the same time one need not wait until the attack has commenced, but can act where the threat is imminent. However the attack must not have ceased.

 

R v Patel 1959 (3) SA 121 A

Hope v R 1917 NPD 145 at 146

S v Van Wyk 1967 (1) SA 488 (A)

S v Mogohlwane 1982 (2) SA 587 T

 

On the other hand, there does not need to be fault on the part of the attacker, and           the attack need not necessarily be directed against the defender

R v K 1956 (3) SA 353 A

Ntanjana v Vorster & Min of Justice 1950 (4) SA 398 C

 

NB:     To be successful the defendant must not have consented to the attack, and that No one may consent to what is unlawful.

 

Requirements for the defence

 

a) The defence must be directed against the person of the aggressor

One must direct his defensive act against the attacker and not any other person.

 

b) The defence must be necessary to protect the threatened right

 

      The act used in defence must have been the only reasonable means to protect the threatened interest (Ntamo v Min of Safety & Security 2001 1 SA 830 TkHC 836). Before resorting to private defence, the defender must have been left with no other option or alternative affording him the best protection.

 

      Thus, where other legal remedies could be used to protect a threatened interest, the defender must use them.

Bakharia v Mia 1918 TPD 56 at 58

Thabethe v Min of Police 1981 3 SA 569 D 573

 

c)        The act of defence must not be more harmful than is necessary to ward off the attack

      One must not use more force than is necessary to avert the threat. In other words, the act of defence must not be out of proportion with the attack (this does not however means that the means used to defend oneself must be equal to the means used by the attacker). Should the defender uses more force than is necessary, his act will amount to wrongful conduct.

      To determine whether the force used was proportional to the threat or not, an objective test is used (i.e. the court must put itself in the position of the defendant at the time of the attack).

 

(Ntsomi v Min of Law & Order 1990 (1) SA 512 C 527-530; S v Motleleni 1976 (1) SA 403 A 406)

In re S v Van Wyk 1967 (1) SA 488 A

 

 

2          NECESSITY

      Where one can only protect his own interest by reasonably violating the interest(s) of another, he can raise a defence of necessity.

      Necessity can be defined as “lawful conduct directed against the innocent person for the purpose of protecting an interest of the actor or a third party against a dangerous situation”

S v Adams, S v Werner 1981 (1) SA 187 (A) 220

 

      The fundamental difference between a private defence and necessity is that, in private defence the victim is the attacker, whereas in necessity the victim is an innocent third party

 

Q: How does one determine necessity?

 

      The following are some of the guidelines that are helpful in determining the existence of necessity:

i) The state of necessity must be present, or imminent

      The state of necessity must not be expected sometime in the future. It must be shown that a state of necessity exists, regardless of the cause. The state of necessity may have been caused by human action, or animal, or the forces of nature.

 

      The possible existence of the state of necessity must be objectively determined. One considers whether the state of necessity actually existed, and not whether the defendant believed it existed. This is done by looking at the actual circumstances that prevailed at the time, and the actual consequences that resulted. The fact that the defendant might have been fearful is not that importance.

 

      It is still debatable whether one can successfully raise necessity where, where he himself has caused the situation. One view is that one cannot rely on necessity which he himself created. S v Bradbury 1967 1 SA 387 A 393,404

 

      Another view is that one should not be deprived of defence of necessity merely because he is the cause of the situation of necessity

R v Mahomed 1938 AD 30

 

Moreover, one may not rely on necessity where he is legally compelled to endure the danger

Dickens v Lake (1906) 23 SC 201 at 204

Hugo v Page 1944 CPD 119

 

ii) The interest harmed must not be more valuable than the interest protected

      The protected interests need not only be those of the defendant. One may act on necessity to protect the interests of others.

 

      However, protected interests need not only be life.

 

Can necessity justify homicide?

S v Goliath 1972 (3) SA 1 (A)

R v Mtetwa 1921 TPD 227 at 230-232

 

iii) The act of necessity must be the only reasonable possible means of escaping the danger

      In order to use the defence of necessity, the defendant must be left with no other reasonable means, but to infringe on another

 

iv) The defendant must not cause more harm than it is necessary.

      This relate to the intensive of the force used in defending your legally protected interests.

 

NB:     Different authors in this field lists a number of guidelines or requisites for necessity. However, I feel that the above is the best logical arrangement of requisites.

3          PROVOCATION

 

      Provocation exists when one (defendant) is provoked or incited by words or actions to cause harm to another (plaintiff). Our courts recognise provocation as a complete defence.

 

      The distinction between provocation and private defence is that private defence seeks to avert the attack that is imminent or that is being carried on, whereas provocation is a retaliatory reaction to an attack that has already terminated

 

(a)  Provocation and physical assault

 

      Generally, where the response to verbal assault (insult) was physical assault, provocation is not a complete defence. However, where provocation was in the form of a physical assault, a counter-assault of a physical nature may give rise to a complete justification on the grounds of provocation.

 

      Whether one acted in response to provocation is assessed objectively. The court weighs the conduct of the plaintiff against the reaction of the defendant. The following requirements must be complied with for reliance on provocation:

 

i)             that there was sufficient provocation to warrant retaliatory action

 

      The provocative conduct must be such that a reaction to it by means of physical assault is Reasonable, and accordingly Excusable.

 

      Using an objective test, it must be established whether a reasonable person in a similar position as the defendant would have been provoked

 

Bester v Calitz 1982 (3) SA 864 (O) 878-881

Bennett v Min of Police 1980 (3) SA 24 (C) 3

Wapnick v Durban City Garage 1984 (2) SA 414 D

 

ii)            that the retaliation occurred without pre-meditation and in great and sudden anger (Jassat v Paruk 1983 4 SA 728 (N) 734)

 

iii)          that the retaliation followed immediately upon the provocation

 

      The defendant’s conduct must be an immediate and reasonable retaliation against the body of the plaintiff

 

      The response must be immediate; and must be a reasonable response to the provocation. In other words, objectively viewed, there must be proportion, both in the nature, and degree of assault (Mordt v Smith 1968 (4) SA 750 (RA))

 

 

iv)          that the retaliation was moderate, reasonable and commensurate in nature and degree with the provocation. 

 

 

 

(b)  Provocation in defamation & insult

 

      To successfully raise provocation in cases of defamatory or insulting allegations two requisites must be satisfied:

 

i) Provocation must be of such a nature that a reasonable person in a similar position as the defendant would also have reacted by defaming or insulting the plaintiff; and

 

ii) A retaliatory defamation or insult must stay within the limits

 

      This means that the insult must be an immediate reaction following directly from the provocation, and must not be out of proportion to the provocative conduct

 

 

 

4          CONSENT (VOLENTI NON FIT INIURIA)

      When one who is capable in law of expressing his will may waive his rights by consenting to an act of the defendant. In that case the causing of harm to his interests will not be unlawful.       

 

      One may consent to an injury, or to the risk of an injury. The law maxim that is used to define this defence is volenti non fit iniuria (he who consents cannot be injured).

 

      Whether one consents to a specific form of injury or to a risk of harm that might be caused by the actor’s conduct, the same maxim applies.

 

The nature of consent

Consent to injury is a unilateral act.

      This implies that there need not be an agreement between the injured party and the defendant (actor).

 

      It can also be withdrawn unilaterally.

 

Consent is a legal act that restricts the injured person’s rights.

      As such it must be clear or apparent or manifest (R v Taylor 1927 CPD 16, at 20).

 

      Consent may either be expressly, or tacitly; that is, one may consent in words or by conduct. Usually this may be by way of incitement, encouragement, and invitation to injure oneself (but that is not always the case).

 

      On the other hand, mere submission or knowledge of an injury does not amount to consent.

R v M 1953 4 SA 393 A

 

      Generally, a prejudiced person must himself consent, not someone else on his behalf.

      However, there are exceptional circumstances whereby others may consent on behalf of others.

 

Consent must be given, not after, but before the prejudicial act.

And there is no ex post facto ratification.

 

Requirements for valid consent

 

i) The person consenting must have full knowledge of the harm or risk involved in the defendant’s conduct and the nature and the extent thereof

This requires that one be informed of the risks involved, its nature and its full extent.

 

 

Castell v De Greef 1994 4 SA 408 C 425

The operation was performed by the defendant, who is a plastic surgeon. It was not a success and the plaintiff sues for damages. The circumstances in which the operation came to be performed are E briefly as follows. The plaintiff's mother, and probably also her grandmother, died of breast cancer. In 1982 the plaintiff underwent surgery for the removal of lumps in the breast. In 1989 further lumps were diagnosed. In view of the plaintiff's family history, her gynaecologist recommended a mastectomy as a prophylaxis and referred her for this purpose to the defendant who saw her on 14 June 1989. … The operation was initially a success in the sense that upon completion all seemed well. On the morning of Wednesday, 9 August 1989, ie some 36 hours after the operation, the defendant observed a discoloration of the left nipple and first became concerned about the blood supply. He expressed this concern to the plaintiff.     When the plaintiff's dressings were changed at home on 14 August 1989, both she and a friend, a Mrs Pickering, who assisted her, noticed a discharge from the area immediately below and bordering on the right G areola and also from the left areolar complex.

 

They also detected an offensive smell.

 

The following day there was no improvement. On Wednesday, 16 August 1989, the plaintiff went to see the defendant at his rooms in Paarl as previously arranged. He assured her that the discharge was to be expected and was a consequence of the necrosis.

As Van Oosten (op cit at 14-5) points out:

G 'South African law generally classifies volenti non fit injuria , irrespective of whether it takes the narrower form of consent to a specific harm or the wider form of assumption of the risk of harm, as a ground of justification (regverdigingsgrond) that excludes the unlawfulness or wrongfulness element of a crime or delict.'

For consent to operate as a defence the following requirements must, inter alia , be satisfied: H

(a) the consenting party 'must have had knowledge and been aware of the nature and extent of the harm or risk';

(b) the consenting party 'must have appreciated and understood the nature and extent of the harm or risk';

(c) he consenting party 'must have consented to the harm or assumed the risk'; I

(d) the consent 'must be comprehensive, that is extend to the entire transaction, inclusive of its consequences'.

Santam Insurance Co. Ltd v Vorster 1973 4 SA 764 A 781

The Plaintiff was seriously injured in an accident while being a passenger in one of the two cars involved in a dicing contest. The plaintiff then claimed damages against the insurer of the other vehicle. The first defendant (insurer) raised the defence of voluntary assumption of risk.

 

The court held that this defence is subjective in nature in that the plaintiff must have consented to prejudice; that consent is inferred from proven facts. Ultimately the court decided that the plaintiff had consented to the normal risk associated with dicing contest rather than to negligence on the part of the second defendant. As such, consent was absent as the harmful conduct fell outside the limits of consent.

 

 

C v Minister of Correctional Services 1996 (4) SA 292 (T) 300

 

An obvious example is consent to surgery. In recent years the concept that consent must be 'informed consent' has found favour with our Courts: see Castell v De Greef 1994 (4) SA 408 (C ) at 420I-421D and 425C-426G. In regard to surgery, informed consent postulates full knowledge of the risks involved and, after being made aware thereof by H the surgeon, the patient is then entitled to exercise his 'fundamental right to self-determination' (at 420I).

 

 

ii) The consenting party must fully appreciate the nature and extent of harm

This requires more than knowing the risk but that the one consenting comprehends and understands the nature and extent of the risk.

 

iii) The consenting person must subjectively consent to the prejudicial act

The party consenting must consent to the harm or must assume the risk. In other words he must have known the risk, appreciated it, and elected to encounter it.

 

See Lampert v Hefer 1955 (2) SA 507 A 509

L boarded a side-car driven by H who was visibly intoxicated. As a result thereof, H caused an accident in which he died, and caused injuries to L. L then sued the executor of H’s estate for damages. The court accepted the defence of consent on the ground that when L entered the side-car, he knew that H was highly intoxicated, yet L continued with a fatal journey

 

 

iv) The consent must be permitted by legal order

The consent must not be contra bonos mores, that is, it must not be against public policy.

See     S v Collet 1978 (3) SA 206 RA

 

v) The person giving consent must be capable of volition

One must be able to distinguish between right and wrong, and be able to act in accordance with such knowledge, and the implications of his consent. However, he does not have to have full legal capacity (minor may as well consent).

 

 

vi) Consent must be given freely or voluntarily

Where the prejudiced party was forced to consent the harm, there is no valid consent (R v McCoy 1953 2 SA 4 (SR)).

 

 

C          FAULT

 

1 Introduction

Fault inquires into the blameworthiness of the wrongdoer’s state of mind at the time a delict was committed. This is assessed subjectively, taking into account factors such as his state of mind (intent) and any insufficient degree of care exercised (negligence) at the relevant time of the wrongful conduct. Thus fault manifests itself in two ways, namely, in the form of intention (dolus), or in the form of negligence (culpa). For purposes of the actio legis Aquiliae, and action for pain and suffering, either intention or negligence is sufficient 

 

Intention is present where the defendant has acted with a reprehensible state of mind or mental disposition. Negligence is present where one has acted with insufficient care to the prejudice of another.

 

However any inquiry into fault should be preceded by an inquiry into the defendant’s accountability.

 

 

 

2 INTENTION

The wrongdoer may direct his will to a result which is his principal object, or he may direct it at a result, which he foresees might follow from his conduct. There are three forms of intent, namely dolus directus, dolus indirectus, and dolus eventualis.

 

 

a)         Dolus directus

Direct intent is present where one actually desires a particular consequence of his conduct

 

b)         Dolus indirectus

This is present where one directly desires one consequence of his conduct but at the same time he has knowledge that another consequence will unavoidably result. For purposes of law, one is said to have intention with regard to the second consequence.

 

c)         Dolus eventualis

This form of intention is present where one brings about the consequence which he did not intend, but foresaw the possibility of its occurrence while he intended to achieve a different consequence. While the wrongdoer foresees the possibility of the unintended consequence, he reconciles himself to the possibility of that second consequence. The question is not whether the unintended consequence was reasonably foreseeable, but is whether the wrongdoer actually foresaw the possibility of the consequence (subjective foresight). In such a case the wrongdoer will be said to have intentionally cause the second consequence even though he did not desire it.

 

Knowledge of Wrongfulness

In addition to directing his will at a particular result, the wrongdoer must realize that his conduct is wrongful or at least foresee the possibility of infringing upon someone’s right. Should he not realize wrongfulness of his conduct, or where he believed to the existence of a ground of justification, he will only be liable for negligence.

 

 

 

3 NEGLIGENCE

      One is negligent when he pays insufficient attention to his actions thereby failing to adhere to the standard of care legally expected of him.

 

How do we determine if one has acted negligently or not?

 

 

In Kruger v Coetzee 1966 2 SA 428 (A) 430, it was held that:

“[f]or the purposes of liability culpa arises if -

   

(a)  a diligens paterfamilias in the position of the defendant -

 

(i)would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

    F                             

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

           

(b) the defendant failed to take such steps.

In the case of Mukheiber v Raath 1999 3 SA 1065 SCA 1077 it was held that, for purposes of liability, negligence arises if: 

 

‘(a) a diligens paterfamilias in the position of the defendant –

 

(i) would have foreseen harm of a general kind that actually occurred;

 

(ii) would have foreseen the general kind of causal sequence by which that harm occurred;

 

(iii) would take reasonable steps to guard against it; and

 

(b) the defendant failed to take those steps.

 

      According to van der Walt and Midgley, a conduct is negligent “if a reasonable person in the same position as the defendant would have foreseen the possibility of harm and would have taken steps to avoid the harm, and the defendant did not take those steps”.

      Therefore, our law uses a the objective standard of the reasonable person (bonus paterfamilias)

 

      In terms of this, one is negligent if a reasonable person in his position would have acted differently to avoid harm.

      In order for a reasonable person to act, the unlawful causing of damage must be foreseeable and preventable (See also Mkhatswa v Min of Defence 2000 (1) SA 1004 SCA 1111-1112)

 

3.1 Foreseeability of Damage

 

What must be foreseeable? Is it the general nature of harm or the specific damage?

 

      There are two differing views regarding the nature of foreseeability test, namely an abstract/absolute approach, and a concrete approach.

 

Abstract Approach

      In terms of this approach the general nature of harm to others (BUT not the specific harm), must be reasonably foreseeable.

 

      The key question is whether the wrongdoer’s conduct in general created an unreasonable risk of harm to others.

See:    Herschel v Mrupe 1954 3 SA 464 A 474; Groenewald v Groenewald 1998 2 SA 1106 SCA 1112;

 

NB:     Not a popular view even among the courts.

Concrete Approach

      This approach enjoys support amongst academics and courts.

 

      according to this approach, the general nature of a particular harm must be foreseeable, in other words,

 

      the wrongdoer must have foreseen (or failed to foresee) not just the possibility of any harm in general, but a particular harm

 

      however, he need not foresee (or failed to foresee) the precise nature and extent of the consequence.

      it is sufficient if the particular consequence was reasonably foreseeable.

 

      the reason why this approach is preferred is the fact that liability for negligence does not only lie on the foreseeability of the consequence,

 

      thus whether a reasonable person takes steps to prevent the harm occurring depends on the general nature of a particular consequence that he reasonably foresees, the manner it is caused, and the possibility that it might occur (See:     Mukheiber v Raath 1999 (3) SA 1065 SCA 1077)

 

 

3.2   Preventability of Damage

      The second part of the test for the negligence is whether a reasonable person would have taken steps to prevent the occurrence of harm.

 

      Whether a reasonable person takes steps or not to prevent harm depends on a number of factors. Van der Walt and Midgley identify four factors, namely:

 

i)          The Nature and Extent of the risk inherent in the wrongdoer’s conduct

 

      If the nature and extent of the risk were not serious, a reasonable person would not take precautionary measures to prevent it.

See:                Herschel v Mrupe 1954 3 SA 464 A 477

 

 

 

ii)         The seriousness of damage

                  Where damage would be grave and serious, when the risk did materialize a reasonable person would take steps to prevent the risk even though it may not be serious.

(Ngubane v SATS 1991 (1) SA 756 (A) 777)

 

iii)        The Relative Importance and Object of the Wrongdoer’s Conduct.

                  What are the interests that were served or promoted by the wrongdoer?

 

                  we compare them to the risk inherent to his conduct

                  if the purpose served is more important than the risk, then a reasonable person would not prevent the harm.

Compare: S v Mkwanazi 1967 2 SA 593 N.

 

iv)        The Costs and Difficulty of Taking Precautionary Measures

-           A reasonable person would only take steps to prevent the risk of harm where that can be done without substantial problems, prejudice or cost

-           where the costs are greater than the risk involved.

 

For an example, in Gordon v Da Mata 1969 3 SA 285 A, the AD held that a reasonable person would have taken steps to prevent leaves from falling onto the floor where the plaintiff slipped on a cabbage leaf.

 

See also:                   Mkwanazi v Van der Walt 1995 4 SA 589 A, & the cases referred to in (ii) above

 

READ THE CIRCUMSTANCES UNDER WHICH NEGLIGENCE IS JUDGED (Neethling 145-147)

 

 

 

4. CHILDREN (impubes)

 

How does one apply the reasonable person test in the case of children?  

 

Should the fact that the wrongdoer is a child play any role when applying the test?

 

      In 1965 the AD in Jones v Santam Bpk 1965 2 SA 542 A asserted that in determining whether the child was negligent or not, an objective [Not Subjective] test is always used.

 

      Once, negligence on the part of a child has been established, the second part of the enquiry is applied - i.e. whether the child was culpae capax.

 

-           This is determined by taking into account all the subjective qualities of the child, e.g. sufficient maturity of the child to measure up to the objective standard of the reasonable person, background, where he grew up, whether he has been exposed to a similar situation before, etc

 

NB:                 The new approach is that there is no distinction between a child and an adult when ascertaining negligence.

 

-           However, the traditional approach applied a reasonable child test (before 1965)

 

Read :            Jones v Santam Bpk 1965 2 SA 542 A 551,552

Compare:       S v T 1986 (2) SA 2 (O)

 

-           The approach in Jones case was put in question in that the AD first ascertained negligence, then accountability

-           Roxa v Mtshayi 1975 3 SA 761 A 765 – 766.

 

-           However, in Weber v Santam Versekeringsmaaskappy Bpk 1983 1 SA 381 A, the AD reaffirmed the approach in Jones case.

-           it held that Jones case did not depart materially from common law.

 

 

5. EXPERTS

 

How should the test be applied where the wrongdoer possesses expertise in regard to his allegedly negligent conduct?

 

-           Regarding experts, the test used is the test of a reasonable expert.

-           it is the slight modification of a reasonable person test.

-           the difference is that a reasonable measure of expertise is now required of a reasonable person.

-           the conduct of an expert is measured against what is reasonably expected of a reasonable person in the same profession.

-           i.e. look at the skills and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.

-           the principle /maxim used in cases where a skill is required for certain activities is Imperitia Culpae Adnumeratur – literally- lack of skill is deemed negligence.

-           it means it is negligence to undertake and activity requiring expert knowledge without possessing the necessary expert knowledge.

-           i.t.o this principle, one is negligent for undertaking the activity knowing that (where he should have known that) he did not have the necessary expert knowledge.

 

See:    Van Wyk v Lewis 1924 AD 438

Durr v ABSA Bank Ltd 1997 3 SA 448 SCA

 

NB :                IT IS UPON THE COURT TO DETERMINE WHAT IS REASONABLE UNDER WHAT CIRCUMSTANCES.

 

 

6. CONTRIBUTORY FAULT

      Contributory fault serves to limit the extent of he defendant’s liability where the plaintiff himself contributed to the loss that he suffered

 

      This area of delict is regulated by the Apportionment of Damages Act 34 of 1956 (as amended by Apportionment of Damages Amendment Act 58 of 1971)

 

The Common Law Position

      Under the Roman-Dutch Law, the general rule was that the plaintiff could not claim damages from the defendant, where he himself has been negligent

 

      in other words, where both parties were at fault, neither of them could claim damages, unless one of them was more to blame than the other

 

      The English law followed the same approach for some time.

 

      However, in 1842, the English law adopted a new approach, according to which liability fell on the one who had the last opportunity to avoid the loss-causing accident

 

Davies v Mann (1842)10 M&W 546

      in 1945 the English legislature replaced this rule with the principle of proportional division of damages according to the degree of fault on each party

 

      The South African law adopted the English law position

 

 

The Apportionment of Damages Act

      Section 1(1)(a) of the Act provides that no party may be prevented from suing simply because he partly contributed to his loss through his fault

 

      in terms of this subsection, damages should be apportioned according to each party’s contribution to the damages

      Subsection 1(1)(b) amends the common law rule in Davies v Mann (who has the last opportunity to avoid the consequences

 

      the common law position that one cannot raise a defence of contributory negligence where he intentionally caused loss to another remains unchanged

 

See: Wapnick v Durban City Garage 1984 2 SA 414 D 418

 

 

      Where the plaintiff intentionally causes his own loss whilst the defendant is negligent, he forfeits his claim

 

Columbus Joint Venture v ABSA Bank Ltd 2000 2 SA 491 W 512-513

 

      On the other hand, the legal position is not clear where there is intention on both parties

 

Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank 1997 2 SA 591W 606

 

The Criteria for the “apportionment of damages”

Q:        How does one apportion the damages where both parties were negligent?

 

      A standard test is used for contributory negligence to apportion damages

 

      to assign the percentage of each party’s contribution to the damage, two positions (A or B) are followed in the South African law

 

Procedure for apportionment

 

A         Position 1 (followed prior to 1965)

– South British Insurance Co Ltd v Smit 1962 3 SA 826 A 835; AA Mutual Insurance Association Ltd v Nomeka 1976 3 SA 45 A

 

1.            The extent to which each party deviated from the standard of care expected of a reasonable man is expressed in a percentage form, and

 

2.            the two percentages are then compared to assign responsibility to each part in connection with the damage concerned

 

 

3 A.1 First establish the percentage of the plaintiff’s negligence, and

 

4 A.2 Then establish the defendant’s percentage by MINUSING A.1 FROM A 100

 

THUS the defendant’s deviation is the difference (that is, 100 minus the plaintiff’s contribution)

 

5      A.3 The plaintiff’s claim is Defendant’s deviation

 

OR

 

B         Position 2 (post 1965)

Introduced in 1965 by Jones v Santam Bpk 1965 2 SA 542 A

 

1.            The extent to which each party deviated from the standard of care expected of a reasonable man is expressed in a percentage form, and the two percentages are then compared to assign responsibility to each part in connection with the damage concerned

 

      In terms of this approach, if the plaintiff’s conduct contributed 40 percent, it does not automatically follow that the defendant contributed 60 percent to the damage

 

      It might be possible that the defendant contributed 80 percent

 

2.                      Then the two degrees must be compared to determined separately the contribution of each party  in relation to the damages,

 

For example: (plaintiff’s): (defendant’s)

i.e. [P:D (P+D)

= 40:80 [40:80 (120)]

           

3.            Then split the two for each party’s liability

That is:-

Plaintiff contribution = 40 divide 120 multiply by 100

            40 / 120 x 100 = 33,3

Defendant contribution = 80 divide by 120 multiply by 100

 

80 / 120 x 100= 66,7

 

4.            B.4    the plaintiff’s claim will be the defendant’s liability

 

That is:- 66,7 percent of the total damage claim