Fault Flashcards
Definition
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).
To assess whether a defendant is accountable, one must find out if the defendant at the time had:
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?
General Presumption?
All persons are culpae capax until proven otherwise.
Groups not accountable:
o Youth,
o Mental illness,
o Intoxication or a similar condition as induced by a drug, or
o Anger due to provocation.
Case for mental disease or illness / emotional distress
S v Campher (lady who murdered abusive husband)
Case for intoxication
S v Chretien (dude who drove car into group of people)
The three categories where youth may exclude accountability:
- Children who are younger than 7 years (infates) –> always culpae incapax.
- Children between the ages of 7 and 14 –> calpae incapx unlesss otherwise proven.
- Children between 14 and 18 –> calpae capax.
Case for provocation
S v Campher (lady who murdered abusive husband)
Forms of intention
o Dolus directus,
o Dolus indirectus, and
o Dolus eventualis.
Irrespective of the form, what two aspects does intention always have?
o Direction of will, and
o Consciousness of wrongfulness.
Who bears the onus of proving intention
Plantiff
Defences can be used to
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.
Case for Mistaken Intention
Maisel v Van Naeren (landlord sending defamation letter to wrong person)
Case for Jestful Intention
Masch v Leask (dude who told people at an auction that he was holding another after Masch’s - Masch sued defamation)
How to determine if a person was negligent?
We ask what the reasonable person, put in the same position would have done.
Characterists of a Reasonable Person
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.
In which case was the test for negligence created?
Kruger v Coetzee (Kruger hit Coetzees horse with his car - horse got out from construction gate which Coetzee knew to be a problem)
Test for negligence
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.
Explain the two views to the application of the foreseeability of harm
- 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)
When assessing the magnitude of the risk, which two questions arise?
How strong is the possibility that the harm will occur?
How serious will the damage be if the risk materialises?
