Joint wrongdoers

Question 1

common law distinction between joint wrongdoers and independent or separate wrongdoers (concurrent wrongdoers).

Answer 1

Where persons co-operated consciously to commit a delict, they were joint wrongdoers;

where more than one person by independent wrongful conduct contributed causally to the same harmful consequence, they were considered to be concurrent wrongdoers.

Following this distinction, the liability of the two kinds of joint wrongdoers was treated differently at common law

Question 2

Definition of joint wrongdoer (NB) according to Apportionment of Damages Act

Answer 2

Joint wrongdoers are persons who are jointly
and severally liable in delict for the same damage

Question 3

Apportionment of Damages Act on
Requirement for delictual liability of joint wrongdoers

Answer 3

A person may thus only be sued as a joint wrongdoer if he was indeed delictually “liable” as against the plaintiff

And the act will therefore be applicable whether they acted negligently or intentionally

Question 4

Administration of joint wrongdoers according to the Apportionment of Damages Act

Answer 4

o Where more than one person therefore causes separate damaging consequences concerning a plaintiff, each is, according to the ordinary principles of delict, only liable for the specific damage he has caused (Van der Merwe and Olivier) and there is no question of joint wrongdoers.

Question 5

Minister of Safety and Security v Rudman 2005 (SCA); Wright v Medi-Clinic Ltd 2007

on impossibility of determining separate contributions of wrongdoers

Answer 5

If, as in Rudman, it isn’t possible to determine what the two wrongdoer’s separate contributions to the plaintiff’s damage are, and action is instituted against only one of
them the court can on considerations of fairness hold that he is liable for half of the damage.

This wrongdoer has a common-law right of recourse against the other wrongdoer for half of the amount he has paid (Rudman).

In Wright the court inquired whether the damage was divisible to determine whether two wrongdoers contributed separately to the damage.

The criteria for determining whether the damages was divisible or not were logic on the one hand, and pragmatism on the other. In casu the court found that part of the damage was indeed divisible and could therefore be regarded as separate damage. In respect of the other part, that was not divisible, the parties were jointly and severally liable as joint wrongdoers, each for half thereof

Question 6

Maphosa v Wilke 1990 on negligence by both parties

Answer 6

The defendant negligently drove a truck into a stationary Putco bus.
The driver of the bus was also negligent. The plaintiff, the defendant’s passenger, was injured and he instituted a claim.

On the ground of the bus driver’s negligence, the defendant joined both the owner (the employer of the bus driver) and the insurer of the bus (in terms of the former Compulsory Motor Vehicle Insurance Act 56 of 1972) as third parties (joint wrongdoers).

The court had to decide, inter alia, whether the last-mentioned two parties could be joint wrongdoers (with the defendant).

Du Plessis AJ answered in the affirmative since both – although they were not delictual wrongdoers –were (jointly) liable in delict to the plaintiff for the damage that the bus driver caused (jointly): the employer on the ground of vicarious liability for the delict of his employee, and the insurer in terms of s 21(1) of the 1972 Act

Question 7

Smith v Road Accident Fund 2006 (SCA)

Answer 7

the Road Accident Fund is only liable against victims of motor vehicle accidents.

If damages is claimed for injuries for an amount greater than that which the Fund can be held liable for, the Fund incurs no liability against the defendant who caused the victim’s (plaintiff’s) injuries and the Fund is accordingly not a joint wrongdoer in the place of unidentified drivers who caused the plaintiff’s injuries together with the defendant.

The court didn’t wish to express itself about the correctness of the opposite conclusion reached in Maphosa in respect of liability of the Fund against an identified driver.

Question 8

Moshole v PUTCO (Pty) Ltd 2011 on nature of delict in order to quaify as joint wrongdoer

Answer 8

the court held, in contrast to Maphosa, that the Fund was not a joint wrongdoer in terms of s 2(10) of the Apportionment of Damages Act 34 of 1956 because the liability of the Fund for compensation of victims of road accidents is statutory and not delictual in nature. The conflicting decisions in Maphosa and Moshole will have to be resolved by a higher court

Question 9

Liability of joint wrongdoers (how they may be sued)

Answer 9

Joint wrongdoers are in solidum liable for the full damage.
The plaintiff therefore has the right to sue whichever joint wrongdoer he chooses for the full amount of damages. Joint wrongdoers may also be sued in the same action2(1).

If so, the court may at the request of the plaintiff, or a joint wrongdoer order a separation of trials or another (in the court’s opinion) fair and just ruling (s 2(3)).

The court may order that the joint wrongdoers shall be jointly or severally liable, and that payment by one of them shall absolve the others from any liability to the plaintiff. (S 2(8). The one who has paid still has, of course, a right of recourse against the other)

If the court is satisfied all the joint wrongdoers are before it, it may apportion the damages among them based on their relative degrees of fault, and may give judgment against every wrongdoer for his part of the damages.

Question 10

Where a plaintiff or a defendant in an action notifies a joint wrongdoer of the action before litis contestation (S 2(2))

Answer 10

The defendant may claim recourse (contribution) from that joint wrongdoer if he (the defendant) has paid the full amount of damages to the plaintiff as a result of a judgment against him (S 2(4) 2(6)(a).

If no such notice has been given, there is no right of recourse against a joint wrongdoer unless the court condones the neglect for good cause (s 2(4)(b))

Question 11

The right of recourse or recovery of such a defendant notifies the joint wrongdoer

Answer 11

the right of recourse is directed at claiming an amount which, taking into account the respective degrees of fault of the joint wrongdoers, is considered to be fair

Question 12

What happens if a joint wrongdoer pays more than is justified by the degree of his fault?

Answer 12

he may exercise his right of recourse against any of the other joint wrongdoers.

Question 13

Prejudice suffered by a spouse as a result of the conduct of the other spouse and a third party:

Marriage in community of property

Answer 13

Before 1971 a spouse married in community of property couldn’t be regarded as a joint wrongdoer with a third party against the prejudiced (innocent) spouse.

This state of affairs resulted from the rule that a spouse married in community of property could not commit a delict against the other spouse and hence such spouses could not sue one another ex delicto

Reason; the existence of the joint (common) estate – liability would be senseless, because the innocent spouse would have to be compensated from the single joint estate with assets which would then merely be returned to it; a case therefore of taking out of one pocket only to fill the other

Question 14

Court ruling on delictual claims of spouses married ICP

Answer 14

the courts ruled that the innocent spouse, (whether the husband as controller of the joint estate, or the husband or the wife with a claim for compensation for bodily injury) could claim the full amount of damages from the third party.

The third party could not afterwards exercise a right of recourse against the guilty spouse, because the latter was not regarded as being a joint wrongdoer.

S 1(1)(a) of the Apportionment of Damages Act, simply because the plaintiff had no “fault in relation to the damage” (as the section requires) and also because the other spouse’s contributory fault could not be imputed to him

Question 15

Van Zyl v Gracie 1964 the court, gave a different judgment to cort ruling on delictual claim of spouses married ICP

Answer 15

A motor car, a joint asset of a husband and wife, was damaged as a result of the negligence of the wife and a third party.

The husband, as administrator of the joint estate, claimed the full amount of damages from the third party.

Strictly speaking, s 1(1)(a) is not applicable – the husband as the plaintiff was not contributorily negligent.

The court nevertheless took the wife’s contributory negligence into account and apportioned the damages accordingly.

Therefore, we are concerned with the identification of fault – the wife’s fault is imputed to the husband as the plaintiff because the husband and wife are joint owners of the motor car and the husband is claiming on behalf of both in favour of the joint estate

Question 16

The amendment of the Apportionment of Damages Act in 1971 brought change to this unsatisfactory state of affairs for the third party (ito joint wrongdoers as spouses married ICP).

Answer 16

A spouse married in community of property may now be deemed to be a joint wrongdoer with a third party against the other spouse.

Accordingly, the prejudiced (innocent) spouse may recover his or her full claim for patrimonial or non-patrimonial damages from the third party, while the latter (third part) then has a right of recourse against the joint estate through the guilty spouse as joint wrongdoer.

However, although this spouse is now regarded as a joint wrongdoer with the third party, the innocent spouse may still not, because of the existence of the joint estate, institute an action against the former

Question 17

In terms of Act 34 of 1956, S 2(1A) which provides:

Answer 17

“A person shall for this section be regarded as a joint wrongdoer if he would have been a joint wrongdoer but for the fact that he is married in community of property to the plaintiff

Question 18

Regulation of ICP by the Matrimonial Property Act

Answer 18

The Act distinguishes in respect of delictual damages between patrimonial damage and non-patrimonial damage.

Compensation for non-patrimonial damage becomes the separate property of the spouse to whom it was awarded. The third party may not recover any part thereof when exercising his right of recourse, because it does not form part of the joint estate.

Damages recovered for patrimonial damage, on the other hand, fall into the joint estate, and are therefore subject to the third party’s right of recourse.

Question 19

The MPA as amended by Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae)

Answer 19

allows the innocent spouse to institute an action for compensation of patrimonial and non-patrimonial loss, flowing from personal (bodily) injuries, against the other spouse

Question 20

Section 18 (a) and 18(b) of MPA

Answer 20

S 18(a) of Matrimonial Property Act which provides that although a spouse is married in community of property, “any amount recovered by him or her by way of damages, other than damages for patrimonial loss, because of a delict committed against him or her, does not fall into the joint estate but becomes his or her separate property”.

S 18(b) of Matrimonial Property Act which provides that even though a spouse is married in community of property, “he or she may recover from the other spouse damage[s] in respect of bodily injuries suffered by him or her and attributable either wholly or in part to the fault of that spouse and these damages do not fall into the joint estate but become the separate property of the injured spouse

Question 21

S 19 of the MPA

Answer 21

Provides that if a spouse married in community of property is delictually liable for damages, such compensation (and any costs awarded against him) is to be recovered from his separate estate if any, before the plaintiff has recourse to the joint estate.

If jointestate is indeed utilised for this purpose, an adjustment in favour of the innocent spouse (or his estate) must take place upon dissolution of joint estate.

Question 22

Visser 2006 De Jure- Van der Merwe v RAF on why court found S 18 of MPA to be unconstitutional

Answer 22

Facts-the husband of the applicant drove his motor vehicle into the applicant, at that stage his spouse. (married ICP and since divorced)
As a result of the assault, the applicant sustained serious physical injuries requiring extensive medical treatment.

The applicant instituted action against the RAF and successfully challenged the constitutional validity of section 18(b) of the Matrimonial Property Act 88 of 1984 that effectively barred her from recovering patrimonial damages for bodily injury caused to her by her spouse because they were married in community of property.

The Cape HC declared the provision to be inconsistent with the Constitution and invalid because it undermined the dignity of the applicant and unfairly discriminated against her on the ground of
her marital status. The applicant requested the CC to confirm the order of constitutional invalidity

Question 23

Court findings in Visser case

Answer 23

Court confirmed the order of constitutional invalidity of section 18(b).

The court’s order, insofar it is relevant for the purposes of this note, has led to an amended section 18 of the Matrimonial Property Act, S 18(b) now reads “he may recover from the other spouse damages [,other than damages for patrimonial loss,] (now deleted) in respect of bodily injuries suffered by him and attributable either wholly or in part to the fault of that spouse, such damages do not fall into the joint estate but become the separate property of the injured spouse.

Question 24

Evaluation of judgment & criticism

Answer 24

First, court could’ve considered s18(a) as well. Same principle is involved in section I8(a) and 1 8(b) (although s 1 8(a) goes wider than bodily injuries and refers to delictual damages in a wide sense) and it would probably have been better not to promote some uncertainty by allowing section 1 8(a) to stand as it is. It is clear that the legislature should now promptly look into this issue and effect the necessary changes in line with the principles laid down in casu.

2nd, Court could’ve been more precise in the words chosen by it to amend section 18(b). Section 1 8(b) does not make very elegant reading by merely inserting the court’s words into it as directed.
What are the duties of the Constitutional Court when embarking upon this kind of exercise: The court should obviously be expected to provide a final, refined version of the section that it is amending

3rd, the court’s order about retrospectivity may have to be interpreted. Does it apply to a court order which is currently the subject of an appeal? Only a final order is subject to an appeal, but the very appeal means that the matter has not been disposed of finally. There could now perhaps be some (unnecessary) uncertainty in this regard.

Question 25

Marriage OCP ito joint wrongdoers

Answer 25

Each of the spouses have separate estates

No reason why one of the spouses cant be a joint wrongdoer with a third party against another spouse

The Apportionment of Damages Amendment Act 58 of 1971 and the Matrimonial Property Act 88 of 1984 don’t change this position

Question 26

Prejudice as a result of death; Where a dependant suffers loss of support as a result of the conduct of both the deceased breadwinner and a third party.

Common law position before Act

Answer 26

Third party and the deceased estate could not be considered to be joint wrongdoers, as the so-called last opportunity rule of the common law was still applicable. This meant that if the breadwinner had the last opportunity to avoid his death, his dependants had no claim against the third party, but if the third party had the last opportunity their claim was satisfied in full

Question 27

Prejudice as a result of death; Where a dependant suffers loss of support as a result of the conduct of both the deceased breadwinner and a third party.

Answer 27

After Act was amended: The last opportunity rule was abolished, and the third party and the deceased estate are considered to be joint wrongdoers concerning the loss of support.

Meaning that the dependant may now claim the full amount of damages from either the third party or the deceased estate, and that there is a right of recourse between the two joint wrongdoers. If one of the joint wrongdoers pays the damages in full, he may claim a contribution from the other.

Act also regulates how the court must handle the dependant’s claim for loss of support. In respect of this right of recourse, the Act further provides that if the court deducts such benefit from the estimated loss of support, the prejudiced party may not be deprived of this benefit.

Question 28

Act 34 of 1956 s 2(1B) provides:

Answer 28

“Subject to the provisions of the second proviso to subsection (6)(a), if it is alleged that the plaintiff has suffered damage as a result of any injury to or the death of any person and that such injury or death was caused partly by the fault of such injured or deceased person and partly by the fault of an
other person such injured person or the estate of such deceased person as the case may be, and such other person shall for this section be regarded as joint wrongdoers.

Question 29

Prejudice as a result of injury

Answer 29

Where the duty of support of a breadwinner (for example, a father or husband) has been increased as a result of an injury to a dependant in circumstances where the dependant and a third party contributed to the injuries.

Question 30

Common law position; (INJURY)

Answer 30

Courts refused to consider child to be a joint wrongdoer with a third party as against his breadwinner (father).

Question 31

Now according to Act (injury)

Answer 31

The child and the third party are now deemed to be joint wrongdoers as against the father. He, as plaintiff, may in principle sue any joint wrongdoer and the wrongdoer who pays out has a right of recourse against the other. In practice, he will probably sue the third party, rather than his child

Question 32

Saitowitz v Provincial Insurance Co Ltd 1962.

Answer 32

The court stated: “But in any event it is difficult to imagine on what basis a son can be liable to his father ex delicto for medical expenses incurred by a father as a result of the son’s negligence, and so become a joint wrongdoer vis-à-vis his father in terms of the Act. The liability resting on a father to pay for such expenses is one which arises by operation of law . . . and I know of no authority which would enable a father to sue a son for the recovery of such expenses.”

Question 33

2.) Persons who suffer damage as a result of injury to another person, is the case of a master being harmed as a result of an injury to his domestic servant.

Answer 33

If conduct of servant and third party caused the injuries, they are deemed to be joint wrongdoers against the master in terms of the Apportionment of Damages Act.

Question 34

3.) Dependant suffers loss of support through the conduct of the injured breadwinner and a third party.

Answer 34

Before 1971, De Vaal v Messing stated the dependant had no claim. The court argued that the dependant simply did not suffer damage because the breadwinner himself could institute an action for loss of future income as a result of his injuries

Not applicable to all cases

Act 34 of 1956 s 2(1B) expressly includes all cases where someone suffers damage “as a result of any injury to or the death of any person”