DEL | Ch. 11 - Forms of liability w/out fault

Question 1

How is increased liability which liability without fault entails justified?

Answer 1

• In various widely divergent ways.
• There are 2 main theories:
  a. The interest or profit theory;
  b. Risk or danger theory.

Question 2

Name the general characteristics of liability without fault

Answer 2

1. Fault is not required for liability in claims for compensation
2. Vis maiour (act of God) and fault on the part of the prejudiced person are generally recognised as defences
3. Strict liability is usually imposed - either by legislation or judicial pronouncement - in cases involving activities which as a rule create extraordinary increases in the risk of harm to the community
4. In instances where strict liability has been imposed by legislation, the extent of the liability is usually curtailed by fixing maximum amounts of compensation
5. Liability without fault is restricted in most cases to damage to life, limb and property.

Question 3

What are the common-law forms of strict liability?

Answer 3

1. Actio de pauperie

2. Actio de pastu

Question 4

Discuss the actio de pauperie

Answer 4

1. The most important characteristic is that fault on the part of the owner is not a requirement for liability.
2. O’Callaghan v Chaplin brought the actio back.

Question 5

Discuss the requirement for the actio de pauperie

Answer 5

1. The defendant must be the OWNER of the animal when the damage is inflicted.
   - Mere control is thus sufficient for a successful claim
2. The animal must be a DOMESTIC animal.
   - Domestic is interpreted not too strictly
3. The animal must act CONTRA NATURAM SUI GENERIS when inflicting the damage
   - The animal must have acted, objectively seen, contrary to what may be expected of a decent and well-behaved animal of its kind.
   - But, the animal must have caused the damage spontaneously from inward excitement or vice. Which will not be the case if it is reacting to external stimuli.
4. The prejudiced person or his property must be lawfully present at the location where the damage is inflicted.
   - Some courts require “lawful purpose” others “legal right”. The latter is narrower since a person who has al legitimate purpose may not necessarily have a right to be at the place.

Question 6

Discuss the defences against the actio de pauperie

Answer 6

1. Vis maior
2. Culpable or provocative conduct on the part of the prejudiced person
3. Culpable conduct on the part of an outsider
4. Provocation by another animal
   - In all these cases the animal did not act from inward excitement or vice and did not then act contra naturam sui generis.

Question 7

What can be claimed with the actio de pauperie

Answer 7

Both patrimonial damages and satisfaction.

Question 8

What is the actio de pastu?

Answer 8

Damages are claimed from the owner of an animal which caused loss by eating plants.

Question 9

Name the requirements for the actio de pastu

Answer 9

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

Question 10

What defences are available against the actio de pastu?

Answer 10

1. Vis maior
2. Fault on the part of the prejudiced person
   - These are complete defences
   - Culpable conduct on the part of an outsider does not exclude the actio de pastu.

Question 11

What is vicarious liability?

Answer 11

The strict liability of one person for the delict of another.

• Thus the former is indirectly vicariously liable for the damage caused by the latter.
• It applies where there is a particular relationship between the two persons.

Question 12

What are the 4 categories of vicarious liability?

Answer 12

1. Employer - employee
2. Principal - agent
3. Motor-car owner - motor-car driver
4. State - public school

Question 13

Discuss the employer-employee category

Answer 13

1. Where an employee acting within the scope of his employment, commits a delict, his employer is fully liable for the damage.
2. Fault is not required on the part of the employer.
3. The Risk or Danger Theory (work entrusted creates certain risks of harm) is the preferred one.

Question 14

What are the requirements for the employer-employee vicarious liability?

Answer 14

1. There must be an employer - employee relationship at the time when the delict is committed.
   - Thus a contract of service (locatio conductio operarum) must exist.
   - The contract of mandate (locatio conduction operis) by contrast does not found vicarious liability.
   - The question of control means the capacity or right of control and not factual control, is the most important indicium to determine whether is an employee.
   - Midway Two Engineering case stipulated that a multi-faceted test should be used
2. The employee must commit a delict
   - Implies that the employer may raise any defence which is available to the employee.
   - The employer-employee are in principle regarded as joint wrongdoers as against the prejudiced party. But, a right of recourse is only available to the employer.
3. The employee must act within the scope of his employment when the delict is committed
   - He acts within the scope of employment if he acts in the execution or fulfilment of his duties ito the employment contract.
   - He acts outside such scope if he disengages himself completely from his employment and promotes his own objectives or interest exclusively.
   - The test was set out in Minister of Police v Rabie (known as the standard test): The er may accordingly only escape vicarious liability if the ee, viewed subjectively, has not only exclusively promoted his own interests, but viewed objectively, has also completely disengaged himself from the duties of his contract of employment.
   - It is particularly important that a SUFFICIENTLY CLOSE CONNECTION did not exist between the ee’s conduct and his employment.

Question 15

Is vicarious liability for intentional wrongdoing excluded?

Answer 15

Traditionally it used to be, but in K v Minister of Safety and Security the court found the state vicariously liable for police rape.

Question 16

Discuss the case of K v Minister of Safety and Security with reference to vicarious liability

Answer 16

1. Police in full uniform raped a woman when giving her a lift home.
2. The CC held that the state is vicariously liable.
   - The CCsaid that if the standard test as formulated in Rabie and informed by the constitutional Bill of Rights was applied, a “sufficiently close connection” existed between the conduct of the police and their work to hold their employer vicariously liable
   - There was a statutory duty on the policemen and the state to prevent crime and to protect the members of public;
   - The woman acted reasonably by accepting help and trusting the policemen;
   - The conduct of the policemen consisted simultaneously of a commissio (the rape) and an omissio (failure to protect her against rape)
3. In the case of F v Minister of Safety and Security the court applied the approach of K. Court considered:
   - The state’s constitutional obligations to protect members of the public
   - The level of control of the state over police officials;
   - Enablement to commit rape by the use of police equipment;
   - The creation of risk by the employment of an inefficient or untrustworthy policeman.

Question 17

What are the 4 statutory categories of strict liability?

Answer 17

1. Consumer Protection Act: Liability caused by defective products
2. National Nuclear Regulator Act: The holder of a nuclear installation license is strictly liable for all nuclear damage caused during his period of responsibility.
3. Civil Aviation Act: Damage caused by aircraft
4. Post and Telecommunication-Related Matters Act: Any person who directly or indirectly inures or destroys telecom lines or call-office cabinets.
5. Genetically Modified Organisms Act: Damage caused by GMO is borne by user.

Question 18

What defences can be raised against the CPA strict liability?

Answer 18

1. The defect is wholly attributable to compliance with public regulation
2. The defect was not present at the time it was supplied
3. It is unreasonable to expect the distributor or retailed to have discovered the defect in the product
4. If the claim is brought more than 3 years after the person had knowledge of the illness or damage to property, or suffered economic loss.