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