Conduct Flashcards
Requirements of an act
Conduct may be defined as the voluntary human act or omission constituting the damage-causing event in a delict.
The first requirement is that it must be a human act. An animal cannot act for the purposes of a delict, but where a human uses an animal as an instrument to commit a delict, the human act is still present. Where an act is done at the command or with the permission of a director, official or servant of a juristic person in the exercise of its duties to advance the interests of the juristic person, such act is deemed to be an act by the juristic person.
The second requirement is that the act must be voluntary (i.e. susceptible to the control of the will of the actor). The person must have sufficient mental capacity to control his muscular movements.
The third requirement is that an act for the purposes of the law of delict may be either in the form of positive conduct (commissio) or in the form of an omission.
The concept of voluntary conduct
One of the characteristics that conduct for delict must comply with is that it must be voluntary (i.e. susceptible to the control of the will of the actor).
The actor must have sufficient mental capacity to control his muscular movements.
The conduct needn’t be willed or desired.
Where X fails to warn others that an electric current has been switched on and someone is electrocuted as a result, he has still acted even though he didn’t will or desired this omission, since he was in principle able to utter a warning.
The conduct needn’t be rational or explicable.
The conduct of an infans or a mentally ill person is usually voluntary, but he or she may escape liability for lack of accountability or fault.
Where someone alleges that his conduct wasn’t voluntary, he is raising the defence of automatism.
Conditions which may cause a person to act involuntary
absolute compulsion sleep unconsciousness fainting fit epileptic fit serious intoxication blackout strong emotional pressure mental illness heart attack hypnosis reflex movements other conditions
Actio libera in causa
The defence of automatism will not succeed if he intentionally created the situation which led to his involuntary conduct.
The defendant will still be held liable for his culpable conduct in creating the state of automatism which resulted in damage.
If the defendant was negligent in his actions which resulted in his state of automatism he will also still be held liable if the reasonable person would’ve foreseen the possibility of causing harm while in a state of automatism.
X is involved in an accident while driving his car. When he regains consciousness, he has no recollection of how the accident took place. He is hospitalised and during treatment for head injuries, the doctors determine that he suffered an epileptic fit at the time of the accident. The car of Y, the other person involved in the accident, is badly damaged. Can it be said that it was an act on the part of X that damaged Y’s car? Will it make a difference to your answer if X had been receiving treatment for epilepsy before the accident, but had failed to take his medicine for several days before the accident took place? Discuss.
Conduct is defined as a voluntary human act or omission.
Voluntariness means that the persons bodily movements is susceptible to control of his will.
The person must have the sufficient mental capacity to control his muscular movements.
Voluntariness does not mean that the person willed or desired the conduct, nor does the conduct need to be rational or explicable.
A person who alleges that he didn’t act voluntarily is raising the defence of automatism, which means that his movements were mechanical and could not be controlled by his will. Epileptic fits and blackouts are examples of conduct constituting automatism.
According to Molefe, a defendant alleging sane automatism doesn’t have the onus to prove it. the onus is on the plaintiff to prove that the defendant’s conduct was voluntary.
If we apply these principles to the facts, we can conclude that X didn’t act voluntarily and therefore didn’t act for the purposes of law of delict.
However, if a defendant intentionally created the situation in which he acted mechanically, he cannot rely on the defence of automatism (actio libera in causa). Similarly, if the person was negligent in relation to the situation which resulted in his state of automatism, he cannot rely on the defence and will also be held liable. Reasonableness is determined with reference to whether a reasonable person would foresee the possibility of harm as a result of the automatism.
Therefore, it could be said that X acted negligently or even intentionally (dolus eventualis) and cannot rely on the defence of automatism to escape liability.
