Fault

Question 1

Definition

Answer 1

The laws judgement of an accountable persons state of mind (intention) or of the inadequate quality of a person’s conduct as measured against societies standards (negligence).

Question 2

To assess whether a defendant is accountable, one must find out if the defendant at the time had:

Answer 2

o Had the mental capacity to distinguish between right and wrong and appreciate the difference?
o Had sufficient maturity to act in accordance with the appreciation of a distinction between right and wrong?

Question 3

General Presumption?

Answer 3

All persons are culpae capax until proven otherwise.

Question 4

Groups not accountable:

Answer 4

o Youth,
o Mental illness,
o Intoxication or a similar condition as induced by a drug, or
o Anger due to provocation.

Question 5

Case for mental disease or illness / emotional distress

Answer 5

S v Campher (lady who murdered abusive husband)

Question 6

Case for intoxication

Answer 6

S v Chretien (dude who drove car into group of people)

Question 7

The three categories where youth may exclude accountability:

Answer 7

1. Children who are younger than 7 years (infates) –> always culpae incapax.
2. Children between the ages of 7 and 14 –> calpae incapx unlesss otherwise proven.
3. Children between 14 and 18 –> calpae capax.

Question 8

Case for provocation

Answer 8

S v Campher (lady who murdered abusive husband)

Question 9

Forms of intention

Answer 9

o Dolus directus,
o Dolus indirectus, and
o Dolus eventualis.

Question 10

Irrespective of the form, what two aspects does intention always have?

Answer 10

o Direction of will, and
o Consciousness of wrongfulness.

Question 11

Who bears the onus of proving intention

Answer 11

Plantiff

Question 12

Defences can be used to

Answer 12

o Indicate that the defendant did not direct his will towards effecting the harm-causing event,
o Indicate that the defendant did not know that his conduct was harmful, or
o Indicate that the defendant neither directed his will towards effecting the harm-causing event nor knew that the conduct was harmful.

Question 13

Case for Mistaken Intention

Answer 13

Maisel v Van Naeren (landlord sending defamation letter to wrong person)

Question 14

Case for Jestful Intention

Answer 14

Masch v Leask (dude who told people at an auction that he was holding another after Masch’s - Masch sued defamation)

Question 15

How to determine if a person was negligent?

Answer 15

We ask what the reasonable person, put in the same position would have done.

Question 16

Characterists of a Reasonable Person

Answer 16

The reasonable-person criterion is an expression of what society expects of its members in their everyday life.
Aka what a “normal person” would have done in a similar situation to a defendant.

Question 17

In which case was the test for negligence created?

Answer 17

Kruger v Coetzee (Kruger hit Coetzees horse with his car - horse got out from construction gate which Coetzee knew to be a problem)

Question 18

Test for negligence

Answer 18

For the purposes of liability, culpa, arises if:
(a) A diligens paterfamilias in the position of the defendant:
(ii) Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) Would take reasonable steps to guard against such occurrence; and
(b) The defendant failed to take such steps.

Question 19

Explain the two views to the application of the foreseeability of harm

Answer 19

• In the abstract approach, the question of foreseeability depends on whether the defendant foresaw that, in general, harm could occur.
• In the relative approach, we can only regard a defendants conduct as negligent if the specific harmful consequences were reasonably foreseeable. (prefered approach)

Question 20

When assessing the magnitude of the risk, which two questions arise?

Answer 20

 How strong is the possibility that the harm will occur?
 How serious will the damage be if the risk materialises?