Fault Flashcards
Define vicarious liability, with respect to its requirements.
Employer’s strict (i.e. no fault) liability for their employees’ delicts. Requirements:
1) delict committed by employee
2) there was a relationship between the employee and employer
3) within the course of the relationship
What is the actio de pauperie?
Harm caused by a domestic animal. Requirements:
(1) must be a domestic animal
(2) the animal must act contrary to the nature of its genus (e.g. a Labrador will be compared to other dogs)
(3) the animal must have acted out of its inward excitement and vice – one must not provoke the animal
What is the actio de pastu?
An owner of an animal is strictly liable for damage to property of others caused by grazing (e.g. damage crops, fences etc).
What were the facts and issue in Wagenar v Pharmacare?
The appellant in the first appeal underwent shoulder surgery at a private hospital conducted by a trust. The surgical procedure involved administration of a local anaesthetic called Regibloc Injection (‘Regibloc’) which was manufactured and marketed by the respondent company. As an aftermath of the surgery the appellant was left with necrosis of the tissues and nerves underlying the site of the operation, and paralysis of the right arm.
This matter concerns the extent to which a manufacturer can be strictly liable in delict for unintended harm caused by defective manufacture of a product where there is no contractual privity between the manufacturer and the injured person.
What was held in Wagenar v Pharmacare, with respect to product liability?
Is the requirement of fault in the Acquilian remedy inadequate? Appellant’s correctly argued that it is difficult to lead expert evidence and prove that the product in question or a unit from the same batch was indeed faulty - and even if so, who would be liable for such?
Should the courts develop the law? Yes, but only incrementally. Changing the requirements would act retrospectively, because products made years ago could now be held liable - whereas if the Legislature passed a statute, it would not act retrospectively.
CONCLUSION: Appeal failed. Appellants must rely on the Acquilian action. No strict liability imposed. Must resort to the legislature.
What is the Latin term for negligence, is it assessed objectively or subjectively, and what is it a question of?
Culpa, objectively, question of fact
What is the test to determine negligence?
A person is negligent if their conduct does not conform to the standard of care required by the law — that of a reasonable person. Negligence arises if [Kruger v Coetzee]:
1) a reasonable person, in the position of the defendant, would foresee the reasonable possibility (risk) of their conduct generally injuring another in his person or property and causing him patrimonial loss; and
2) would take reasonable steps to guard against such an occurrence; and
3) the defendant failed to take such steps
What were the facts of Kruger v Coetzee, and what did the court hold?
A man collided with horses on a main road. Was the owner of the horses reasonably expected to have foreseen that if his horses were to wander into the road they would cause harm and, if so, what reasonable measures ought he to have taken to ensure that they did not do so? In light of this, the man did take reasonable steps. He always closed the gate, but in this instance, workers had left it open.
What were the facts of Sea Harvest, and what did the court hold?
A cold store was set alight by a distress flare fired by an unknown reveller in celebration of the New Year. The whole factory was fire-proof. The owner could not reasonably have foreseen that a flare landing in the gutter would give rise to a destructive fire. Even though the cold store lacked certain fire-proof safeguards, it was sufficiently fire-proof from fires emanating from within the unit.
The court held that dividing the negligence inquiry into different stages, although useful, is no aid or guideline for resolving the issue. The true criterion for determining negligence is whether in the particular circumstances the conduct complained of falls short of the standard of the reasonable person. The owner of the building was not negligent.
What happened in Ngubane v SA Transport?
A man was injured when leaving a moving train. There was a high risk of injury to him. The court held that it would involve no extra cost to the respondent to carry out prescribed procedures (such as closing the doors before moving the train). Therefore, they were found to have been negligent.
How is the test applied i.e. how is the standard of the reasonable person determined?
The reasonable person standard has, over time, acquired certain attributes which set an objective standard. This threshold is adjusted upwardly when the negligence of an expert in a particular field is at issue, but not downwardly when a child or a ‘simple’ person is involved.
In general, a middle-ground approach is taken [Loots], so determining whether a reasonable person would have foreseen the potential harm and taken reasonable steps to prevent it depends on [Herschel]:
a) the likelihood that the harm will occur/degree or extent of the risk
b) its probable seriousness if it does occur/gravity of the consequences
c) the cost or difficulty of taking precautions/burden of eliminating the risk
d) the social utility of the actor’s conduct (tolerance of the risk)
What is the Latin term for intent, is it assessed objectively or subjectively, and what is it concerned with?
Culpa, subjectively, state of mind
Define intention
Intention is the direction of the defendant’s will at causing a particular consequence in the knowledge that it is wrongful.
Comment on intention under the Acquilian action
Intent is not required, and it is relied on less often than negligence. However, it is required in some instances, such as for unlawful competition in the form of injurious falsehood and interference with contractual relations.
What are the requirements for proving injurious falsehood?
Requirements:
a) the defendant made a false representation
b) that they knew was false, and
c) the plaintiff loses customers as a result of the representation
d) and defendant intended the plaintiff to suffer as a result of the representation
