Fault Flashcards
Define accountability
A person is accountable if, at the time of the commission of the act, he has the necessary mental ability to distinguish between right and wrong and act in accordance with such appreciation.
If he lacks mental ability, there can be no fault and accountability is therefore the basis of fault.
Accountability may be excluded on the basis of:
1. Youth
2. Mental disease or illness
3. Intoxication or similar condition induced by drugs
4. Anger due to provocation
Define fault
The legal blameworthiness or reprehensible state of mind or conduct of a person who has acted wrongfully. Can take the form of intent or negligence.
Define intent
An accountable person acts intentionally where his will is directed at a result which he causes, while conscious of the wrongfulness of his conduct. Elements - direction of the will and consciousness of wrongfulness.
Define negligence
Where a person is blamed for an attitude or conduct of carelessness, thoughtlessness or imprudence, because by giving insufficient attention to his conduct, he failed to adhere to the standard of care legally required of him.
Test for negligence
Objective standard of the reasonable person or bonus paterfamilias.
A defendant acts negligently where the reasonable person in his position would have acted differently, which is determined by reasonable foreseeability and preventability.
The test was formulated as follows in Kruger v Coetzee:
For the purposes of liability, culpa arises if :
(1) a diligens paterfamilias in the position of the defendant
(a) would have foreseen the reasonable possibility of his conduct injuring somebody’s person or property and causing patrimonial loss and
(b) would have taken reasonable steps to avoid such occurrence and
(2) the defendant failed to take such steps.
Forms of intent
- Dolus directus: where a wrongdoer actually desires a particular result which he causes (irrespective of whether he is certain it will happen or whether it is merely a possibility)
- Dolus indirectus: where a person directly intends one consequence, but has knowledge that a second consequence will unavoidably also occur. Second consequence is accompanied by indirect intent.
- Dolus eventualis: where a person doesn’t desire a particular consequence, but foresees the possibility that his conduct may cause the result and he reconciles himself to such fact and nevertheless performs the act which brings about the consequence. (if the person foresees the possibility, but comes to the conclusion that it will not happen, he doesn’t reconcile himself to the consequence and there is no dolus eventualis, but luxuria)
No specific consequence is attached to the form of intent present.
One can furthermore distinguish between dolus determinatus and dolus indeterminatus:
- where the wrongdoer’s will is directed at a result, while he has a specific person or object in mind, he acts with dolus determinatus (definite intent)
- where a wrongdoer’s will is directed at a result, while having no specific person or object in mind, he acts with dolus indeterminatus (indefinite intent)
Can negligence and intent overlap? Discuss briefly
- According to Van der Merwe and Olivier’s definition, intention and negligence are mutually exclusive.
- However there are decisions in which it was stated that if intent is present, negligence is included in the intent.
- In Ngubane, it was decided that where a person has intentionally killed another, they may be convicted of culpable homicide for which negligence is a requirement.
- One may argue that the intentional causing of harm to another person is contrary to the standard of care which the reasonable person would have exercised and that negligence is thus simultaneously present.
- This view is preferred.
Characteristics of reasonable person
Fictitious person
Neither exceptionally gifted, careful or developed, nor underdeveloped or reckless chance taker with no prudence.
Legal personification of what community expects from members in daily interaction.
Weber - since it is an abstract objective criterion there is no purpose of developing legion of reasonable person types. There is only one reasonable person criterion and judge determines that by placing itself in the position of the diligens paterfamilias.
Person has certain minimum knowledge and mental capability to appreciate potential danger of certain actions.
No authority that physical characteristics play a part in the test, but handicaps cannot be completely ignored.
John, an intelligent thirteen-year old learner and a prefect at his school, plays an informal game
of cricket with his friends on the playground of the school. Because a bazaar is in progress to
raise funds for an expansion project of the school, motor cars are parked on the playground.
John hits the ball very hard and it causes damage to a very exclusive and very expensive sports
car. Was John negligent? Discuss with reference to case law.
Before the AD decision of Jones in 1965, the negligence of a child used to be determined with reference to a reasonable child standard.
Held that criterion for determination of negligence is always objective and the test of the reasonable person must be applied.
It must first be ascertained whether the child concerned met the standard of care required of the reasonable person and the fact that the conduct is that of a child is irrelevant at this stage of the inquiry.
Once it has been established that the conduct is negligent, it must be ascertained whether the person should be held accountable and youthfulness is then taken into account (i.e. did the child have the required intellect, maturity, experience and insight to distinguish between right and wrong and act in accordance with such insight?)
Jones was critisised on the basis that a reasonable adult standard for a child is unfair and that the court put the cart before the horse by testing for negligence first and thereafter accountability.
In the AD decision of Weber the Jones approach was confirmed and it was held that if the principles were applied with insight, the critisism would fall away.
In Eskom Holdings it was held that in each case it must be determined whether the child attained the emotional and intellectual maturity to appreciate the danger to be avoided and act accordingly.
Since John is 13 (an impubes) he is rebuttably presumed to be culpae incapax until the contrary is proven. In view of his intelligence and the fact that he is a prefect, he probably had the maturity to be accountable and was therefore probably negligent since his conduct deviated from that of the reasonable person in the circumstance.s
Reasonable expert
Whether the wrongdoer possesses proficiency or expertise in respect of the conduct affects the application of the reasonable person test.
The reasonable expert test then applied (professional negligence)
Identical to reasonable person test, but reasonable measure of relevant expertise added
Not highest degree of expertise in profession, but general or average level of skill and diligence possessed and exercised by members of branch of profession (Van Wyk). Same expertise cannot be expected from a GP as a specialist.
In Durr, the SCA approved the Van Wyk approach,
Foreseeability and Preventability
There are two approaches to foreseeability - the abstract approach in terms of which the foreseeability of harm to others in general was reasonably foreseeable and the concrete approach in terms of which the occurrence of a particular consequences was reasonably foreseeable. It is submitted that the concrete approach should be followed and it will be sufficient if the general nature of the consequences and the manner in which it was caused are foreseeable.
The foreseeability of harm will depend on the degree of probability of the manifestation of the harm - the greater the possibility that damage will occur, the more likely it was reasonably foreseeable.
Preventability relates to whether, in an instance of reasonably foreseeable damage, the defendant took adequate, reasonable steps to prevent materialisation of damage. Factors relevant to preventability of damage are:
1. The nature and extent of the risk inherent in the wrongdoer’s conduct - where potential harm is slight, a reasonable person wouldn’t take steps.
2. The seriousness of the damage if the risk materialises and damages follows - where the conduct creates the possibility that grave and extensive damage may occur, he should take reasonable steps even when there is only a slight possibility (Lomagundi - welding caused ignition of bales of stover and Overseas Tankship - spilt oil from ship led to harbour where welding repairs caused another ship to ignite)
3. The relative importance and object of the wrongdoer’s conduct - may be more important than risk of harm it involves.
4. Cost and difficulty of taking precautionary measures - where risk can be reduced without substantial problems or costs it is reasonable to take such steps (Gordon - assistant slashing cabbage leaves - collecting them in receptable wouldn’t have required much trouble or high costs; King - mere presence of potentially slippery vegetable matter in large market not itself negligent as unreasonable, expensive and unrealistic to expect immediate removal of vegetable matter as it fell; Pick ‘n Pay Retailers - general rule is that duty on shopkeeper isn’t so onerous to require that every spillage must be discovered and cleaned up as soon as it occurs - only requires reasonable promptitude and reasonable measures to avoid potential hazards).
Negligence in light of surrounding circumstances
All the relevant circumstances of a case must be considered when determining the negligence of the wrongdoer. These circumstances will determine what was reasonably foreseeable and what steps could’ve or should’ve been taken to prevent the harm (Butters). Factors that are relevant:
- Greater care expected when someone works with something inherently dangerous;
- Greater care is expected when someone works with people who suffer from some form of disability or incapacity.
- Doctrine of sudden emergency - where someone is faced with a situation of sudden emergency and does not have time to consider all the possible consequences, such imminent peril must be taken into account. Law doesn’t expect same judgment and skill in such circumstances. Requirements:
(a) Must face situation of imminent peril
(b) must not have caused situation himself by negligence or imprudence
(c) must not have acted grossly unreasonable
- would the reasonable person in the circumstances have made the same error in judgment? - Generally a person acts reasonably when he expects others to act reasonably or obey the law, unless such negligent conduct of others is reasonably foreseeable.
- Customs, usages and opinions of community may affect negligent enquiry eg. a person who alleges that standard practice was followed in building industry.
- Statutory provisions may impose greater standard of care on persons in certain circumstances.
Contributory fault - where defendant acts with intent and plaintiff with negligence
Fault encompasses both intent and negligence.
Question therefore arises that where defendant acts with intent and raises defence of contributory negligence on the part of the plaintiff, he could succeed with a reduction in damages.
In terms of common law, a defendant forfeits his claim where he acts with intention and the plaintiff had negligence.
Accepted that the position is retained in the Apportionment of Damages Act.
Contributory intent - where defendant acted with intent and plaintiff’s conduct was also intentional
In light of wording and historical background of Apportionment of Damages Act, it appears that legislature intended to make provision only for defence of contributory negligence and not contributory intent.
However, in Greater Johannesburg Transitional Metropolitan Council it was held that a defence of contributory intent could succeed.
X rents out mountain bikes. Y hires one of the mountain bikes. On completing her ride, Y is unable to stop the bike, and she collides with a tree and sustains head injuries. It transpires that X did not properly maintain the bikes, with the result that the brakes of the relevant bike were malfunctioning. Y, on the other hand, neglected to wear the safety helmet supplied by X. Y is hospitalised and her hospital costs amount to R10,000. His costs would have been R6,000 had she worn the helmet. At the relevant time X used no indemnity forms or notices excluding liability in her business. Y wishes to recover R10,000 in delictual damages from X. Will she be successful? Discuss in detail with reference to case law and legislation.
• From the given facts, we can conclude that the defendant has been negligent, but the plaintiff appears to have been negligent too.
• Thus we must consider whether contributory negligence was present.
• Contributory negligence is negligence on the part of the plaintiff, and it is a defence that the defendant can raise.
• The Apportionment of Damages Act 34 of 1956 is applicable.
• This Act provides that a contributorily negligent plaintiff’s damages be apportioned.
• The court will determine the degree of deviation from the reasonable person standard shown by the conduct of both the defendant and the plaintiff, express the deviation as percentages, and use these percentages as a basis for the apportionment.
• In cases like Smit, Prior to the decision in Jones NO v Santam Bpk, the Appellate Division accepted that once the plaintiff’s degree of negligence had been established, it was unnecessary to inquire into the extent to which the defendant’s conduct had deviated from the standard of the reasonable person.
• If the court had established, eg, that the plaintiff had been 40% negligent (his conduct deviated 40% from the standard of the reasonable person), it was thought to follow automatically that the defendant was 60% negligent.
the percentages of negligence attributed to the defendant and plaintiff respectively will always add up to a hundred per cent.
• According to Jones both percentages must be assessed independently, which could mean that, for example, a defendant may be 80% negligent while the plaintiff is 70% negligent.
• In this case, the ratio between the plaintiff’s and the defendant’s degree of fault is 70:80 (7:8 (15)).
• The plaintiff’s degree of fault is thus 7/15 x 100/1 = 46,7%, and the defendant’s 53,3%.
• The plaintiff thus receives compensation for only 53,3% of the damage because he is 46,7% to blame for his loss.
In Nomeka the Appellate Division confirmed the approach followed prior to Jones, ie that the degree of the plaintiff’s fault automatically determines the degree of fault of the defendant.
• This is an unsatisfactory situation and when the opportunity arises, the SCA should in the interests of legal certainty reject one approach and confirm the other.
• It is submitted that the approach in the Jones case is preferable and that it should be confirmed.
• According to King a defence of contributory negligence could not succeed where the plaintiff had omitted to wear a crash-helmet while driving a scooter, but had not been negligent in respect of causing the accident.
• However, in Bowkers Park Komga Cooperative Ltd the court held that contributory negligence did not refer to negligence in respect of the damage-causing event, such as a motorcar accident, but to negligence in respect of the damage itself, and
• this was confirmed by the Appellate Division in cases of Vitoria (failure to wear seatbelt constitutes contributory negligence) and Uijs
• Therefore, failure to wear a safety helmet would constitute contributory negligence if it contributed to the plaintiff’s damage.
• Applying these principles to the facts, we can conclude that Y was contributorily negligent and that her damages will be apportioned.
In terms of Vorster, the apportionment is only relevant insofar the plaintiff’s contributory negligence has led to an increase in damage (i.e. the damage for which the plaintiff is also responsible)
• She will be awarded R6 000 plus a portion of the R4 000 damage to which she contributed, taking into account her and X’s respective degrees of negligence.
