Fault: Contributory fault

Question 1

What is contributory fault

Answer 1

While fault refers to the defendant’s conduct, contributory fault refers to the conduct of the plaintiff

Question 2

Give the common law position regarding contributory fault

Answer 2

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.

Question 3

Name the view of common law position regarding contributory fault

Answer 3

All-or-nothing rule

Question 4

Explain the Last opportunity rule

Answer 4

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.

Question 5

Name the act that changed the common law position

Answer 5

The Apportionment of Damages Act 34 of 1956

Question 6

Briefly explain the aim of the Apportionment of Damages Act 34 of 1956

Answer 6

It concerns a reduction of the plaintiff’s damages due to his own fault.

Question 7

How does the act change the common law position?

Answer 7

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.

Question 8

what does fault encompass ?

Answer 8

Intent and negligence

Question 9

What happens where plaintiff was negligent and the defendant had intention?

Answer 9

No defence

Question 10

What happens where plaintiff had intention and the defendant was negligent?

Answer 10

No claim

Question 11

What happens where the plaintiff had intention and the defendant had intention as well ?

Answer 11

lessen damage

Question 12

What happens where both the plaintiff and the defendant acted negligently

Answer 12

Lessen damage

Question 13

What is the meaning of Apportionment of damages?

Answer 13

The process concerns a REDUCTION of damages received by the plaintiff because of his own negligence in regard to the damage he sustained.

Question 14

what is the criterion used by the the SA courts for the apportionment of damages?

Answer 14

The criterion used is the reasonable person test for negligence

Question 15

What is the method to determine who should bear a specific portion of damage?

Answer 15

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.

Question 16

Prior to the Jones-case, what was the method of apportionment ?

Answer 16

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.

Question 17

After the Jones-case, what was the method of apportionment ?

Answer 17

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

Question 18

are both methods (before and after Jones case) valid in the SA law ?

Answer 18

In the Nomeka case, the Appellate division confirmed the previous formula so both approaches exist in our law.

Question 19

Who bears the onus of proof?

Answer 19

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.