Law of Delict
Example of negligent conduct
Driving alcohol knowing you will later drive.
Discuss VdM & Olivier's opinion
Exclude fault x conduct Voluntary act close to harmful consequences is relevant Liability based on conduct before automated state if could've forseen
Distinguish between the rights infringed in a breach of contract vs delict
Only personal right vs any legalized interest (x personal right)
What are the 3 distinguishing factors of a generalizing approach?
Patrimonial damage Injury to personality Action for pain and suffering
Elements of a delict
Act - wrongfulness - fault - causation - harm.
Define 'voluntary' wrt conduct
Susceptible to control by will of persons involved
Definition of a delict
Act of a person that in a wrongful or culpable way causes harm to another
2 forms of conduct?
+ : Commission - : actionable omission
How many elements must there be for a delict to be present?
ALL: 1 missing element = no liability.
Van der Merwe & Olivier
Automatism is a ground to eliminate wrongfulness / fault (x conduct)
Example of intentional conduct
Becoming intoxicated and later injuring another when unable to control yourself
Distinguish between a breach of contract vs delict
Breach of voluntarily assumed duty vs legally imposed duty
What are the remedies for a breach of contract vs delict?
Contract: fulfillment (specific performance) and damages ($) Delict: damages ($: pain/ loss of life) and satisfaction (personality rights - fama / bodily integrity - corpus) *collective of personality rights = dignitas
Omission = actionable (7)
Control over dangerous object Contractual undertaking for 3rd party safety Create impression 3rd party's interests protected Rules of law Special relationship between parties Prior + conduct Particular office
Differentiate between a delict and crime
D: private law (individual protection) and remedy = compensation C: public law (public interest) and remedy = punishment
Fundamental premise of delict
Damage rests where it falls
Delictual wrong
Fundamental rights recognized - lesson to community - aimed at compensation
What is the actio legis aquiliae?
General remedy for wrongfully caused patrimonial loss From patrimonial loss Courts: conservative approach to expansion
What is a causistic approach
Inflexible - constant creation of new delicts
Constitutional wrong
Infringe fundamental right - x recognized - enforce and protect fundamental rights
When is there defense of automatism unavailable?
Intentional / negligent conduct
Intentional conduct
Intentionally create situation = liable Actio libera in causa
Role of delict (3)
Interests recognized in law Circumstances where their protected Restoration of harmonious balance
Defence of automatism
Involuntary (automatic action - x brain, muscular movement) rendering a person incapable of controlling bodily movements
What can limit fundamental rights? (3)
Law of general application Reasonable and justifiable In open, democratic society based on HD, = and freedom
Constitution Indirect Application
Legal rules are all subject to basic BoR values Section 39(2) influence flexible principles iro - wrongfulness (boni mores) - negligent (reas person) Legal causation (imputability)
Commission
Liability less restricted Snyman: opposite of omission Stricter duty to x cause harm than to prevent
Omission
Liability more restricted Policy: law hesitant to say person has legal duty to act + / prevent other's damage Negligence (precautions) and failure (+ steps to prevent damage)
Human conduct wrt Conduct (3)
Natural / juristic (through organ) Animals can be used (instrument) Act by order / with director's permission (=JP)
What factors make fundamental rights not absolute? (5)
Nature NB of purpose of limitation Nature & extent of limit Relation: limit & purpose Less restrictive way to achieve purpose
Vd Walt & Midgley
Not every moral duty has a legal counterpart
Conduct: voluntariness (3)
Of their own volition Not necessarily rational / willed or desired conduct
Discuss the action for pain and suffering
RDL: pain, suffering, bodily disf bc of physical injury SA: above & emotional shock, loss of life expectancy / amenities of lifes / health
What is the actio iniuriam?
RL: any infringement RDL: conduct = contempt for personality SA: fama, corpus, dignity, privacy, feelings & ID recog in case law.
Negligent conduct
Reasonable person test
Negligent conduct
Reasonable person test - x rely on DoA
Onus of proof: Automatism
Rests on she who alleges Sane automatism: plaintiff prove defendant actes volunrarily Mental illness: defendant proves
Intentional conduct
Situated created - liable Actio libera in causa
Name some causes of automatism
Sleep - unconsciousness - fit (epileptic / fainting) - serious intoxication - reflex movement - mental disease - hypnosis - heart attack
How do crime and delict intersect?
Some delicts can be crimes. Some delicts are not crimes. Some crimes are not delicts.
Constitution direct application
Vertical: state - individual Horizontal: individual - individual Protected rights: property, life, freedom, person security (bodily & physical integrity)
Conduct (3)
Voluntary - human - act / omission
