Fault: Contributory fault Flashcards
Explain the common law position and the introduction of the Apportionment of Damages Act
What is contributory fault
While fault refers to the defendant’s conduct, contributory fault refers to the conduct of the plaintiff
Give the common law position regarding contributory fault
The general rule in Roman-Dutch law was that fault on the part of the plaintiff precluded him from claiming damages from the defendant who was also to blame for causing damage.
Name the view of common law position regarding contributory fault
All-or-nothing rule
Explain the Last opportunity rule
If the negligence of two persons contributed to the causing of a particular result, and one or both suffered damage as a consequence, neither party could sue unless the negligence of one was the DECISIVE CAUSE of the accident. Here the negligence of the other party was completely ignored and he could succeed in full with his claim.
Name the act that changed the common law position
The Apportionment of Damages Act 34 of 1956
Briefly explain the aim of the Apportionment of Damages Act 34 of 1956
It concerns a reduction of the plaintiff’s damages due to his own fault.
How does the act change the common law position?
Plaintiff’s fault is no longer a bar to recovery as court can now apportion damages according to the degree of fault on each party’s
side.
what does fault encompass ?
Intent and negligence
What happens where plaintiff was negligent and the defendant had intention?
No defence
What happens where plaintiff had intention and the defendant was negligent?
No claim
What happens where the plaintiff had intention and the defendant had intention as well ?
lessen damage
What happens where both the plaintiff and the defendant acted negligently
Lessen damage
What is the meaning of Apportionment of damages?
The process concerns a REDUCTION of damages received by the plaintiff because of his own negligence in regard to the damage he sustained.
what is the criterion used by the the SA courts for the apportionment of damages?
The criterion used is the reasonable person test for negligence
What is the method to determine who should bear a specific portion of damage?
The method of determining who should bear which portion of the damage involves a comparison of the respective degrees of negligence of both
parties involved
Each party’s degree of negligence is determined by expressing its deviation
from the standard of the reasonable person as a %; the 2 %’s are compared in order to allocate responsibility.
Prior to the Jones-case, what was the method of apportionment ?
It was accepted that once the plaintiff’s degree of negligence had been established, it was unnecessary to enquire into the extent of to which the defendant’s conduct had deviated from the standard of the reasonable person.
After the Jones-case, what was the method of apportionment ?
The fact of the plaintiff’s negligence doesn’t automatically imply the defendant’s negligence – the carefulness of each party must be measured separately against the standard of care of the reasonable person
are both methods (before and after Jones case) valid in the SA law ?
In the Nomeka case, the Appellate division confirmed the previous formula so both approaches exist in our law.
Who bears the onus of proof?
If the defendant raises the defence of contributory negligence on the part
of the plaintiff, he has to prove it on a balance of probabilities.
