Law of Delict

Statutory Authority

A person does not act wrongfully if he performs an act (which would other wise have been wrongful) while exercising a statutory authority.

Definition of a delict

An act of a person that in a wrongful and culpable way causes harm to another.

Definition of negligence

The defendant is negligent is the reasonable person in his position would have acted differently; and according to the courts, the reasonable person would have acted differently if the unlawful causing of damage was reasonably foreseeable and preventable.

Definition of actio pastu

The defendant must be the owner of the animal when the damage is caused The animal must cause damage by eating plants The animal must act of its own volition when causing damages

Concrete concept approach (assessment of patrimonial loss)

The difference between the patrimonial position of the prejudiced person before the wrongful act and thereafter...damage is the unfavorable difference caused by the wrongful act.

Definition of animus iniuriandi

The mental disposition to will the relevant consequences, the the knowledge that the consequences will be wrongful.

Grounds for excluding intent (iniuria)

a. Mistake b. Jest

Flexible approach in determining legal causation:

The basic question is whether there is a close enough relationship between the wrongdoer's conduct and its consequence for such consequence to be imputed to the wrongdoer in view of policy considerations based on reasonableness, fairness and justice.

Test for negligence as per Kruger v Coetzee

(a) A diligens paterfamilias in the position of a defendant - i. Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and ii. Would take reasonable steps to guard against such occurrence; and (b) The defendant failed to take such steps

Factors to consider regarding the fact that negligence is to be judged in light of the surrounding curcumstances

(a) Greater care is required when someone works with things which are inherently dangerous. (b) Greater care is expected when a person deals with individuals who suffer from some disability or incapacity. (c) Where a person has to take a decision in a situation of sudden emergency and there is insufficient opportunity to consider all the consequences of his actions, the immanent peril must be taken into accounts in deciding whether he is negligent. (d) Generally speaking, a person act according to the standard of the reasonable person where he relies on the fact that another person will act in a reasonable way. (e) The customs, usages and opinions of the community. (f) The appropriate standard of care required for conduct is not entirely left to the discretion of the court because there is also a specific statutory provision which applies.

Distinction between wrongfulness and negligence

(a) In the case of wrongfulness, the reasonableness of the defendant's conduct is determined by weighing the conflicting interests in the light of the legal convictions of the community (boni mores) (b) Wrongfulness is concerned with determining the legal reprehensibility of the conduct (wrongfulness thus qualifies conduct) where as negligence is usually seen as determining the legal blameworthiness of the defendant for his wrongful conduct (negligence thus qualifies the defendant or wrongdoer.) (c) Because wrongfulness concerns the legal reprehensibility of a person's conduct, such conduct is determined diagnostically (ex post facto) in light of all the relevant facts and circumstances that are actually present and all the consequences that actually ensued. Because negligence concerns the legal blameworthiness of the wrongdoer, it is determined prognostically (ex ante) with reference to the position in which the defendant actually found himself. Wrongfulness is determined on the basis of actual facts or realities. Negligence is determined on the basis of probabilities. (d) Wrongfulness is, for reasons of efficacy and logic, determined before negligence. The inquiry into wrongfulness conceptually precedes the test for negligence; in other words, negligence presupposes wrongfulness. (e) The test for wrongfulness is narrower than the test for negligence and is therefor less burdensome on the community.

Requirements for the justification of "execution of an official command" as set out in S v Banda

(a) The order must issue from a person in a position of lawful authority over the accused. (b) There must be a duty on the accused to obey the order given. (c) The accused must have done no more harm than was necessary to carry out the order.

An arrestor is authorised to use deadly force when:

(a) the force is immediatly necessary for the purpose of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent of future death or grievous bedily harm. (b) there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed. (c) the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.

To determine whether the legislature intended to authorise an infringement of the interests, the courts apply the following guidelines

(i) If the statute is directory, it is clear that the infringement of private interests is authorised. (ii) If the statute is not directory but permissive, and if the statute make no provision for payment of damages, there is a presumption that the infringement is not authorised. (iii) The presumption referred to in (ii) falls away if the authority is entrusted to a public body, acting in public interest (iv) If the authorised act is circumscribed and localised, there is a presumotion that the infringement is authorised. (v) If the authorisation is permissive and general, not localised and does not necessarily entail and infringement of private interests, the only possible inference is that the legislature did not intend that private interests should be infringed

Requirements for the actio pauperie

* The defendant must be the owner of the animal when the damage is inflicted * The animal must be a domestic animal * The animal must act contra naturam sui generis when inflicting the damage * The prejudiced person or his property must be lawfully present at the location where the damage is inflicted.

Theories for determining legal causation:

1. Flexible approach - Main 2. Adequate causation 3.Direct consequence 4. Fault 5. Reasonable foreseeability 6. Novus actus interveniens 7. Egg-skull (talen qualem rule)

Adequate causation theory:

A consequence which has in fact been caused by the wrongdoer is imputed to him if the consequence is adequately connected to the conduct.

Test for negligence in terms of Jones NO v Santam Bpk

A person is guilty of cupla if his conduct falls short of that of the standard diligens paterfamilias - a standard that is always objective and which varies only in regard to the exigencies arising in any particular circumstances. It is the standard which is one and he same for everybody under the same circumstances.

Definition of psychological lesion:

A psychological lesion may be described as any recognizable harmful infringement of the brain and nervous system of a person.

Definition of necessity

A state of necessity exists when the defendant is placed in such a position by superior force that he is able to protect his interests only by reasonably violating the interests if an innocent third party.

Definition of a wrongful act:

A wrongful act is defined as legally reprehensible or unreasonable conduct by which prejudice is caused.

Boberg's two approaches to the imputability of damage in the case of negligence.

Abstract approach - if damage in general is reasonably foreseeable, the question of whether the wrongdoer is liable for a specific consequence has to be determined separately by applying one or other of the different criteria for legal causation and not with reference to the question of whether the wrongdoer had been negligent with reference to a specific consequence. Concrete approach - renders an investigation into legal causation unnecessary, because wrongfulness and negligence are determined with reference to a specific consequences.

Test for Negligence: Abstract Approach

According to this approach the question of whether someone acted negligently must first be answered by determining whether harm to other was in general reasonably foreseeable.

Conditio sine qua non theory

According to this, an act is the cause of a result of the act cannot be thought away without the result disappearing simultaneously. The act must in other words be conditio sine qua non of the result.

An act as a Juristic person test

An act performed by or at the order of or with the permission if a director, official or servant of a juristic person in the exercise of his duties or functions in advantage or attempting to advance the interest of the juristic person, is deemed to have been performed by the juristic person.

Direct consequence theory:

An actor is liable for all the direct consequences of his negligent conduct, limited by the foreseeable plaintiff.

Definition of damage:

Damage (damnum) is the detrimental impact upon any patrimonial or personality interest (non-patrimonial) deemed worthy of protection by the law.

Sum-Formula (assessment of patrimonial loss)

Damage consists in the negative difference between the relevant person's current patrimonial position (after the event complained of) and his hypothetical patrimonial position that would have been the current position if the event had not taken place. It therefor entails a comparison of an actual current patrimonial sum with a hypothetical current patrimonial sum - and hence the name: Sum formula

Compensation for damage:

Damage is a monetary equivalent of damage awarded to a person with the objected of eliminating as fully as possible his past as well as future patrimonial and, where applicable, non-patrimonial damage. Money is thus intended as the equivalent of damage.

When is damage imputed on a person?

Damage is imputed to a person when, depending on the circumstances, it is direct consequence of the conduct, or reasonably foreseeable, or if it is in an adequate relationship to the conduct, or the combination of such reasons or simply for reasons of legal policy.

Definition of defamation:

Defamation is the intentional infringement of another persons right to a good name. The wrongful, intentional publication of words or behavior concerning another person which has the effect of injuring his status, good name or reputation.

What is factual causation?

Factual causation considers a particular kind of link or connection between at least two facts or sets of facts - one fact arises out of another. It should be noted that factual causation is determined on fact. NOTHING ELSE . A causal nexus can thus only exist between actual, and not hypothetical, facts.

Definition of negligence in terms of Kruger v Coetzee

For the purpose of liability, cupla arises if: (a) a diligens paterfamilias in the position of the defendant - (i) would foresee the reasonable possibility of conduct injuring another in his person or property and causing him patrimonial loss; and (ii) would take reasonable steps to guard against such occurrence; and (b) the defendant failed to take such steps.

Definintion of pactum de non petendo in anticipando

Is a contractual undertaking not to institute an action against the actor.

Determining factual causation in the case of an omission:

It entails a retrospective analysis of what would probably have happened if the alleged wrongdoer had acted positively in light of the available evidence and the probabilities originating from human behavior.

Definition of non-patrimonial loss

Non-patrimonial damage is the detrimental impact (change in or factual disturbance of) personality interest deemed worthy of protection by the law and which does not affect the patrimony.

Definition of patrimonial loss

Patrimonial loss is the detrimental impact on any patrimonial interest deemed worthy of protection by the law. Patrimonial loss may also be seen as the loss or reduction in value of a positive asset in someone's patrimony or the creation or increase of a negative element of such patrimony.

Definition of privilege in terms of the law of delict:

Privilege exists where someone has a right, duty or interest to make specific defamatory assertions and the person or people to whom the assertions are published have a corresponding right, duty or interest to learn of such assertions.

Definition of provocation (justification)

Provocation is present when a defendant is provoked or incited by words or actions to cause harm to the plaintiff

Volenti non fit iniuria

The principle that the defendant is not liable where the injured person has consented to injury or the risk thereof , is embodies in the maxim volenti non fit iniuria (a willing person is not wronged; he who consents cannot be injured) and was already known in Roman and Roman-Dutch Law

A subjective right has been infringed when?

The relationship between the holder of the right and the object of the right has been infringed in a legally reprehensible manner.

Satisfaction:

The reparation of damage in the form of in injury to personality by inter alia effecting retribution for the wrong suffered by the plaintiff and by satisfying the plaintiff's and/or the community's sense of justice.

Test for Negligence: Concrete Approach

This approach to the test of foresee-ability is based on the premise that a person's conduct may only be described as negligent in respect of a specific consequence or consequences; therefore, it is prerequisite for negligence that the occurrence of a particular consequence must be reasonable foreseeable.

Three forms of intent:

a. Direct intent (dolus directus). b. Indirect intent (dolus indirectus). c. Dolus eventualis.

Categories of relative privilege:

a. Discharge of a duty or furtherance of an interest. b. Judicial or quasi-judicial proceedings c. Privileged reports

Definition of gross negligence in terms of MV Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas:

To qualify as gross negligence the conduct in question, although falling short of the dolus eventualis must invilve a departure from the standard of a reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.

Reasonable foreseeability

Was the consequence, as well as the causal progression between the act and the consequence, at the time of the act foreseeable with such a degree of probability that the consequence can, in light of the circumstances, reasonably be imputed to the alleged wrongdoer.

Definition of intent

When an accountable person's will is directed at a result which he causes while conscious of the wrongfulness of the conduct.

Legal causation

When determining which harmful consequence actually caused by the wrongdoer's wrongful, culpable act he should be held liable for; in other words, which consequences should be imputed to him.

Definition of consent

Where a person legally capable of expressing his will gives consent to injury or harm the causing of such harm will be lawful.

Compensatio

Where two people insult each other, the iniuriae cancel or neutralize each other.

Definition of conduct

[Voluntary] human act or omission.

Types of compensation:

a. Compensation for damage b. Satisfaction

Requirements for valid consent as a ground of justification

a. Consent must be given freely and voluntarily b. The person giving the consent must be capable of volition c. The consenting person must have full knowledge of the extent of the possible prejudice d. The consenting party must realise or appreciate fully what the nature and extent of the harm will be. e. The person consenting must in fact subjectively consent to the prejudicial act. f. The consent must be permitted by legal order; in other words, the consent must not be contra bonon mores.

Characteristics of consent as a ground of justification

a. Consent to injury is a unilateral act. b. Consent is a legal act that restricts the injured person's rights c. Consent may be given either expressly or tacitly d. Consent must be given before the prejudicial conduct e. As a rule, the prejudiced person himself must consent - only is special cases may consent be given by someone else.

Factors to consider when determining whether the punishment was moderate and reasonable:

a. Nature and seriousness of the transgression. b. Degree of punishment or force inflicted. c. The physical and mental condition of the person punished. d. The gender and age of the child. e. The physical disposition of the child. f. The means of correction. g. The purpose and motive of the person inflicting the punishment

Patrimonial elements:

a. Positive elements of someone's patrimony - (real, immaterial, personal rights) b. Negative elements of someone's patrimony - Debt

Criticism of the conditio sine qua non theory

a. The conditio sine qua non theory is based on a clumsy, indirect process of though that results in circular logic. b. The condtio dine qua non test fails completely in cases of so-called cumulative causation

Requirements for the actio pastu

a. The defendant must be the owner of the animal when the damage is caused. b. The animal must cause damage by eating plants. c. The animal must act of its own volition when causing the damage

To succeed with the actio de pauperie

a. The defendant must be the owner of the animal when the damage is inflicted. b. The animal must be a domestic animal c. The animal must act contra naturam sui generis when inflicting the damage d. The prejudices person or his property must be lawfully present at the location where damage is inflicted.

A motor car owner will be vicariously liable when:

a. The owner has requested the driver to drive the vehicle. b. The vehicle must be driven in the interest of the owner. c. The owner must retain a right (power of control) over the manner in which the vehicle is driven.

Mitigation of loss:

a. The plaintiff is obliged to take all reasonable steps to limit the damage caused by the defendant's delict. b. A plaintiff who has taken reasonable steps to mitigate his loss may also recover damages for any loss caused by such reasonable steps. c. Where the plaintiff has reduced his damages by taking reasonable steps in mitigation, the defendant is only liable to compensate him for the actual loss her sustained, even if the plaintiff did more than the law required of him. d.The onus of proving that the plaintiff did not properly fulfill his duty to mitigate rests on the defendant.

Requirements for provocation as a defense in the case of infringement of bodily integrity - mutatis mutandis

a. The provocation itself must be of such nature that a reasonable person in the position of the defendant would also have reacted by defaming or insulting the plaintiff - objective test b. Defamation of insult in retortio must stay within prescribed limits. The limits are not exceeded where the defamation or insult (i) immediately or directly follows the provocation and (ii) is not out of proportion to the provocative conduct.

Requirements for an employer's vicarious liability

a. There must be an employer - employee relationship when the delict is committed. b. The employee must commit a delict c. The employee must act within the scope of his employment when the delict is committed.

Guidelines in determining the presence of necessity

a. Whether a state of necessity really exists, not whether it has been caused by human action, animals, forces of nature b.The possible state of necessity must be determined objectively. c. The state of necessity must be present or imminent. d. The defendant need not only protect his own interests. e. Not only life or physical integrity, but also other interests such as property may be protected out of necessity. f. A person may not rely on necessity where he is legally compelled to endure the danger. g. The interest that the sacrificed must not be more valuable that the interest that is protected. h. The act of necessity must be the only reasonably possible means of escaping the danger.

Mckerron deduces from case law that in order to constitute wrongfulness in the circumstances the plaintiff must prove the following:

a. that the relevant statutory measure provided the plaintiff with a private law remedy. b. that the plaintiff is a person for whose benefit and protection the statutory duty was imposed. c. that the nature of the harm and the manner in which it occurred are such as are contemplated by the enactment d. that the defendant in fact transgressed the statutory provision e. that there was a causal nexus between the transgression of the statutory provision and the harm

Requirements for the justification of defense:

a. the defense must be directed against the aggressor himself b. the defense must be necessary to protect the threatened right c. the act of defense must not be more harmful than is necessary to ward off the attack

Restrictions on liability for emotional shock

a. the shock must have originated from a physical injury or resulted in harm to the physical constitutions. b. The aggrieved party himself must have been in personal danger of being physically injured.

Elements of the justification of defense:

a.The attack must consist of a human act b. The attack must be wrongful; in other words it must threaten or violate a legally protected interest without justification c.The attack must have already have commenced or be imminently threatening, but must not have ceased.

Four legs on which the prevent-ability of the negligence test rests.

i. The nature and extent of the risk ii. The seriousness of the damage iii. The relative importance and object iv. The costs and difficulty **** In general the magnitude of the risk must be balanced against the utility of the conduct and the difficulty, expense or other disadvantage of desisting from the conduct or taking a particular precaution. If the magnitude of the risk outweighs the utility of the conduct, the reasonable person would take measures to prevent the occurrence of harm; if the actor failed to take such measures he acted negligently. On the other hand, of the burden of eliminating a risk of harm outweighs the magnitude of he risk, the reasonable person would not take any steps to prevent the occurrence of the foreseeable harm.

An accountable person acts intentionally when:

if his will is directed at a result which he causes while conscious of the wrongfulness of his conduct.