Contributory fault & joint wrongdoers Flashcards
What does Section 1 of the Apportionment of Damages Act say?
Where the claimant is also partly responsible for the damage suffered by them, the damages claimed by them may be reduced with regard in which the claimant was at fault.
What does Section 2 of the Apportionment of Damages Act say?
Where there are joint wrongdoers, both may be held liable for the total amount in proportion to their responsibility for such damages.
What happens when both the plaintiff and the defendant have acted negligently?
Where the plaintiff’s own negligent act contributes to the damage they have suffered, a court is empowered to reduce the damages awarded to the plaintiff in conformity with their own degree of negligence. Contributory negligence is a partial defence.
What happens when the plaintiff acted intentionally, but the defendant only acted negligently?
Where the plaintiff acted intentionally, and the defendant acted negligently, then the plaintiff is not entitled to anything. Contributory negligence is a complete defence.
What happens when the plaintiff acted negligently, but the defendant acted intentionally?
Similarly, if the plaintiff acted negligently, and the defendant acted intentionally, then the plaintiff is entitled to full damages. Contributory negligence is no defence.
What happens when both the plaintiff and the defendant have acted intentionally?
The Act does not cater for contributory intent by both parties. However, writers and the Law Commission suggest that because intentional conduct deviates from the standard of a reasonable person, it is in itself negligent and so the Act does apply.
What are the various ways that the degree of negligence may be calculated?
To determine the degree of negligence, there are several methods that may be used:
1) if the plaintiff is 30% negligent, then the defendant must be 70% negligent. Damages should be reduced so as to account only for the defendant’s negligence.
2) if the defendant is 1% below the standard of the reasonable person, then they are entirely negligent and the damages award must be granted in full.
3) the degree of negligence of both the plaintiff and the defendant must be calculated individually, and the damages award must be adjusted as such, so as to provide for a just and equitable reduction.
Who may be sued in a delictual action?
Any person who wrongfully and negligently causes harm to another. This can be one person, two persons acting independently, two or more persons acting jointly, juristic persons and vicarious liability in the cases of employer-employee, principal-agent, owner-driver relationships.
What are the two routes that a plaintiff can take with respect to joint wrongdoers?
1) If it is alleged that two or more people are jointly and severally liable to a third party in delict for the same damage, then such persons may be sued in the same action. It is irrelevant whether they acted in concert. What is relevant is whether they caused the same damage [Section 2]. Either the joint wrongdoers pay in proportion for the harm, or they are jointly and severally liable, so that one pays the other to be absolved.
2) If a particular wrongdoer is not sued in an action, the plaintiff or one of the wrongdoers may notify them before the close of pleadings. This does not attach them immediately, but it suggests that they ought to intervene as a defendant so as to avoid being held liable in a duplicate action. If only one person is sued, all other joint wrongdoers are absolved of liability to the plaintiff. However, a joint wrongdoer who pays the full amount has a right of recourse against other wrongdoers, provided they were given notice. These wrongdoers may raise a defence which the former could have raised against the plaintiff but did not [Section 2]
What is the position of a joint wrongdoer who is a spouse married in community of property?
Spouses married out of community of property have separate estates. Those married in community of property can sue their spouse in delict and receive damages that do not form part of the joint estate. Hence, a spouse can be held jointly liable and the damages to be paid will come out of their separate estate. If not, it must come out of the joint estate and an adjustment in favour of the other spouse will be made upon death or dissolution of the marriage.
What is the position of a joint wrongdoer who is a deceased breadwinner?
A dependant can claim from the deceased’s estate. If a joint wrongdoer exercises their right of recourse against the estate of the deceased breadwinner, such right of recourse may not be at the expense of a benefit which the dependant acquires from the estate, provided the court took the value of that benefit into account in the determination of the dependant’s damage resulting from loss or support.
