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LDEL - Delict > TB - All > Flashcards

TB - All Flashcards

1
Q

In general, what are the 2 types/causes of delics (incl. Latin terms)

A
  • Patrimonial damages (damnum iniuria datum)

- Injury to personality (iniuria)

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2
Q

What are the 3 types of delictual actions?

A
  1. Actio legis Aquiliae - damages for the wrongful and culpable (intentional or negligent) causing of patrimonial damage are claimed
  2. Actio iniuriarum - directed at satisfaction for the wrongful and INTENTIONAL injury to personality
  3. Action for pain and suffering - Compensation for injury to personality as a result of the wrongful and negligent/intentional impairment of bodily or physical-mental integrity is claimed
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3
Q

What are the requirements for a delict to succeed?

A
  1. Conduct
  2. Wrongfulness
  3. Fault
  4. Causation
  5. Damage
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4
Q

What are the requirements for valid consent?

A
  1. Consent must be given freely or voluntarily
  2. The person giving consent must be capable of volition (expressing his will)
  3. The consenting person must have full knowledge of the extent of the (possible) prejudice
  4. The consenting party must realise/appreciate fully what the nature and extent of the harm will be
  5. The person consenting must, in fact, subjectively consent to the prejudicial act
  6. The consent must be permitted by the legal order (i.e. not contra bonos mores)
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5
Q

What does ‘capable of volition (expressing his will)’ mean?

A

Does not mean that he must have full legal capacity, but that he must be intellectually mature enough to appreciate the implications of his acts and must not be mentally ill or under the influence of drugs that hamper the functioning of his brain.

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6
Q

What does ‘must realise/appreciate fully’ mean?

A

Mere knowledge of the risk or harm is not sufficient; the plaintiff must comprehend and understand the nature and estent of the harm.

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7
Q

What is the ‘pactum de non petendo in anticipado’?

A

A contractual undertaking

not to institute an action against the actor (i.e. not hold him liable)

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8
Q

Discuss the ‘pactum de non petendo in anticipado’

A
  • Must be distinguished from consent to harm
  • Although the EFFECTS of pactum and Consent are the same - in each case the actor is not held liable - the reasons for the actor not being held liable are different.
  • With the pactum, there is no doubt that the actor committed a delict, but the prejudiced person undertakes not to hold the actor liable
  • Wrongfulness is not excluded; only the resultant action is
  • The prejudiced party loses the remedy that he would otherwise have had at his disposal (he waives his action)
  • Jameson’s Minors v CSAR [drove on train on “free pass”]
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9
Q

What are the 2 main forms of Fault?

A
  • Intention (dolus)

- Negligence (culpa)

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10
Q

What does Fault usually refer to?

A

The legal blameworthiness or the reprehensible state of mind or conduct of someone who acted wrongfully.

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11
Q

What is subjective and what is objective wrt Fault?

A
  • Since it is mostly concerned with the person’s attitude or disposition, it is a subjective element
  • The test for Fault is objective in nature
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12
Q

Which form of Fault is required for each type of delict?

A
  • Actio legis Aquiliae and the Action for Pain and Suffering require either intention or negligence;
  • The Actio Iniuriarum requires intent, since negligence is insufficient
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13
Q

What must be established before determining the defendant’s blameworthiness (whether there is fault on his part)?

A

Whether he has the capacity to be held accountable.

  • A person’s mental ability must be such that intent or negligence may be imputed to him
  • Every discussion of intent/negligence should therefore be preceded by an examination of accountability
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14
Q

When is a person accountable (culpae capax)?

A

If he has the necessary mental ability to distinguish between right and wrong and if he can also act in accordance with such appreciation.

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15
Q

When must the person have the required mental ability?

A

At the time of the commission of the act for which the law wants to blame him.
- If a person lacks accountability at the relevant time, there can be no fault on his part.

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16
Q

Which factors may indicate that a person is culpae incapax (not accountable)?

A
  • Youth
  • Mental disease / illness
  • Intoxication or similar condition induced by a drug
  • Anger due to provocation
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17
Q

Discuss Youth as a factor rendering a person culpae incapax

A
  • The CJA changed the criminal law position wrt accountability of children
  • Our law now distinguishes between 3 ages groups: 0-9 (an infans); 10-13; 14-18.
  • 0-9 always regarded as being culpae incapax. The actual mental ability of the child is irrelevant and there is an irrebuttable presumption that he is not accountable
  • 10-13 there is a rebuttable presumption that a child lacks accountability. It is assumed he is culpae incapax until the contrary is proved.
  • 14 - 18 considered adults for purposes of accountability.
  • Each case must be judged on its own merits
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18
Q

Discuss mental illness as a factor excluding accountability

A
  • Where, because of mental illness, a person cannot at a given moment distinguish between right and wrong, or where he cannot act in accordance with an appreciation for the distinction, he is culpae incapax.
  • In these circumstances there is no question of fault, and thus no delictual liability
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19
Q

Discuss intoxication as a factor excluding accountability

A
  • Persons under the influence may be culpae incapax.
  • The mere consumption of a substances may in a given situation be a negligent act for which the defendant may be held responsible. [The alcohol may have been consumed when the defendant was accountable]
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20
Q

Discuss provocation as a factor excluding accountability

A
  • Where a person under provocation loses his temper and becomes passionately angry, he may be said to lack accountability and will thus not be blamed for his conduct.
  • Provocation in our law is often regarded as a ground of justification
  • Once it has been established that the defendant was accountable at the relevant stage, it must be determined whether he acted intentionally or negligently.
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21
Q

When does an accountable person act intentionally?

A

If his will is directed at a result which he causes while conscious of the wrongfulness of his conduct.
- Intention has two elements: Direction of the will and Consciousness of wrongfulness

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22
Q

What is the Latin term for intention?

A

Animus iniuriandi, dolus

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23
Q

What are the 3 forms of Intent?

A
  • Direct intent (dolus directurs)
  • Indirect intent (dolus indirectus)
  • Dolus eventualis
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24
Q

Discuss ‘dolus directus/direct intent’

A
  • Present where the wrongdoer actually desires a particular consequence of his conduct.
  • It does not make a difference whether the wrongdoer is certain that the consequence would result or whether it only appears to him to be probable or possible.
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25
Q

Discuss ‘dolus indirectus/indirect intent’

A
  • Where a wrongdoer directly intends one consequence of his conduct but at the same time has knowledge that another consequence will unavoidably or inevitably also occur.
  • The causing of the SECOND CONSEQUENCE is accompanied by indirect intent.
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26
Q

Discuss ‘dolus eventualis’

A
  • Present where the wrongdoer, while not desiring a particular result, foresees the possibility that he may cause the result and reconciles himself to this fact
  • Or, that the wrongdoer foresees a consequence but recklessly carries on with his conduct.
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27
Q

What is ‘luxuria’?

A

When a wrongdoer foresees that something may happen (dolus eventualis) but for some reason (even an unreasonable one) comes to the conclusion that this will not happen. There will not be dolus eventialis then, but conscious negligence (luxuria).

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28
Q

Are specific consequences attached to each form of intent?

A

No, generally the distinctions are irrelevant.

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29
Q

What is the difference between definite intent (dolus determinatus) and indefinite intent (dolus indeterminatus)?

A

Where a wrongdoer’s will is directed at a result which he causes while he has a specific person/object in mind, he has definite intent. Where the wrongdoer’s will is directed at the result which he causes while he has not specific person/object in mind, indefinite intent is present.

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30
Q

How does knowledge of wrongfulness apply to intent?

A

It indicates that it is insufficient for the wrongdoer merely to direct his will at causing a particular result; he must also know or at least foresee the possibility that his conduct is wrongful.
- A mistake (error) wrt any matter which has a bearing on the wrongfulness of the actor’s conduct, will exclude intent on his part.

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31
Q

When will mistake excluding intent be irrelevant?

A

With the Actio legis Aquiliae

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32
Q

What is motive?

A

Generally it indicates the REASON for someone’s conduct.
- Intent is a technical legal term that denotes willed conduct which the wrongdoer knows is wrongful; motive refers to the reason why a person acts in a particular way

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33
Q

How is motive valuable?

A

It has evidentiary value to prove direct intent - it may serve as evidence that someone acted with direct intent
- It may also serve as proof of consciousness of wrongfulness

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34
Q

Discuss ‘mistake concerning the causal chain of events’

A
  • Concerns whether intent is present where the wrongdoer causes a result in a manner different from what he foresaw
  • Must distinguish between material and immaterial deviation from the planned or foreseen causal nexus
  • In the case of a material deviation, intention is absent, while it is assumed to be present where the deviation is not markedly different from the foreseen causal chain of events
  • According to Appellate Div., a marked deviation exists if the actual causal chain is so different from the foreseen one that the former cannot reasonably be regarded as falling within the actor’s own perception
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35
Q

What is negligence?

A

A person is blamed for an attitude or conduct of carelessness, thoughtlessness or imprudence because, by giving insufficient attention to his actions, he failed to adhere to the standard of care legally required of him.

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36
Q

Which criterion is adopted in our law to determine whether someone has acted carelessly/negligently?

A

The objective standard of the reasonable person, the bonus paterfamilias.

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37
Q

Which case is the locus classicus for the test for negligence?

A

Kruger v Coetzee

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38
Q

What definition did the court in the Kruger case give to the test for negligence?

A

Culpa arises if -

(a) A diligens paterfamilias in the position of the defendant -
i. would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
ii. Would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.

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39
Q

Can negligence and intent overlap?

A
  • S v Ngubane - both may be present simultaneously
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40
Q

What is the definition of ‘gross negligence’ as stated in MV Stella Tingas Transnet case?

A

To qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme.

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41
Q

Is negligence an omission?

A

No, the two should not be confused.

  • An omission an be performed intentionally or negligently
  • An omission (failure) to take reasonable steps to prevent foreseeable harm should not be confused with an omission as a species of conduct
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42
Q

What is the reasonable person?

A
  • Not an exceptionally gifted, careful or developed person; neither is he underdeveloped, nor someone who recklessly takes chances or who has no prudence.
  • The legal personification of those qualities which the community expects from its members in their daily contact with one another.
  • Has a certain minimum knowledge and mental capacity which enable him to appreciate the dangerous potential of certain actions.
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43
Q

Discuss the ‘reasonable expert’

A

The test for negligence iro an expert is determined as the reasonable-expert (i.e. reasonable attorney).

  • Sometimes referred to as professional negligence
  • The reasonable expert is identical to the reasonable person in all respects, except that a reasonable measure of the relevant expertise is added.
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44
Q

Which principle applies to doing something for which you do not have the required skill?

A

Imperitia culpae adnumeratur

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45
Q

Discuss the ‘imperitia culpae adnumeratur’ principle

A
  • Literally means “ignorance or lack of skill is deemed to be negligence”
  • In SA applies where a person undertakes an activity for which expert knowledge is required while he knows or should reasonably know that he lacks the requisite expert knowledge and should not undertake the activity.
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46
Q

What are the 2 legs of the test for negligence?

A
  • Reasonable foreseeability

- Reasonably preventability

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47
Q

Which two approaches apply to Foreseeability?

A
  • Two approaches: Abstract (or absolute) and concrete (or relative)
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48
Q

Discuss the abstract approach of foreseeability

A
  • The question whether someone acted negligently must be answered by determining whether harm to others was IN GENERAL reasonably foreseeable.
  • The question whether a defendant is liable for a SPECIFIC CONSEQUENCE is answered wrt legal causation rather than by inquiring whether the defendant was negligent wrt that specific consequence.
  • Enjoys little support.
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49
Q

Discuss the concrete approach to foreseeability

A
  • Based on the premise that a person’s conduct may only be described as negligent iro a SPECIFIC CONSEQUENCE
  • It is a prerequisite for negligence that the occurrence of a particular consequence must be reasonably foreseeable.
  • A wrongdoer is only negligent wrt a specific consequence if that consequence, and not merely damage in general, was reasonably foreseeable.
  • A strict application of this approach obviates the need for an enquiry into legal causation
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50
Q

Discuss Preventability

A
  • Whether the reasonable person would have taken precautionary steps to prevent the damage from occurring
  • The question is whether, in an instance of reasonably foreseeable damage, the defendant took adequate, reasonable steps to prevent the materialisation of the damage
  • It does not mean that the steps taken must be effective
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51
Q

What are the 4 factors relevant to preventability leg of the test for negligence?

A
  1. The nature and extent of the risk inherent to the wrongdoer’s conduct.
  2. The seriousness of the damage if the risk materialises and damage followes.
  3. The relative importance and object of the wrongdoer’s conduct.
  4. The cost and difficulty of taking precautionary measures.
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52
Q

How must negligence be evaluated?

A

In the light of all relevant circumstances of a particular case. (Cape Town Municipality v Butters)

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53
Q

Give 6 examples of factors which should be taken into account when investigating negligence

A
  1. Greater care is required when someone works with things which are inherently dangerous
  2. Greater care is expected when a person deals with individuals who suffer from some disability or incapacity
  3. Where a person has to take a decision in a situation of sudden emergency and there is insufficient opportunity to consider all the consequences, the imminent peril must be taken into account in deciding whether he is negligent (doctrine of sudden emergency)
  4. Generally, a person acts according to the standard of the reasonable person when he relies on the fact that another person will act in a reasonable way
  5. Usually a defence if acted within normal practices: customs, usages and opinions of the community,
  6. In certain circumstances, the appropriate standard of care required for conduct is not entirely left to the discretion of the court because there is also a specific statutory provision which applies.
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54
Q

What are the requirements to meet the “sudden emergency doctrine”?

A
  • The wrongdoer must have faced a situation of imminent peril
  • The wrongdoer must not have caused the perilous situation by his own negligence
  • The wrongdoer must not have acted in a grossly unreasonable manner
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55
Q

When is the onus of proof on the defendant?

A

When there is a statutory presumption of negligence, the onus rests on the defendant to rebut the presumption.

56
Q

Discuss the maxim ‘res ipsa loquitur’

A
  • Normally refers to a situation where the facts of the matter are such as to give rise to an inference of negligent conduct and finds application where the only known facts, relating to negligence, consist of the occurrence itself.
  • Current legal position is that there is no shift in the onus of proof and that there is not even a prima facie case in favour of the plaintiff.
  • The phrase is merely argument on the probabilities that a plaintiff, who may have little evidence at his disposal, may use in order to convince the court that the defendant acted negligently.
57
Q

What is contributory fault?

A
  • Refers to the conduct of the plaintiff.
  • Primarily relevant in limiting the extent of the defendant’s liability.
  • Regulated by the Apportionment of Damages Act
58
Q

What was the common law position on contributory fault?

A
  • Rule in R-D Law was that fault on the part of the plaintiff precluded him from claiming damages from the defendant.
  • Doctrine of contributory fault initially taken from English law.
  • To determine whose negligence was decisive cause, the enquiry was directed at determining who has the ‘last opportunity of avoiding the accident’.
59
Q

Discuss the current position on Apportionment of Damages

A
  • Abolished the “all-or-nothing” principle and allowed the courts to apportion the damage of each party in accordance with their relative degrees of fault.
60
Q

What is the position of a defendant that intentionally caused harm ito Apportionment of Damages?

A

Will not be able to ask for a reduction in damages because of contributory negligence

61
Q

What happens if a plaintiff intentionally contributes to his own loss while the defendant was only negligent?

A

The plaintiff forfeits his claim.

62
Q

What happens where the defendant and plaintiff acted intentionally?

A

A defence of contributory intention could succeed.

63
Q

What does ‘apportionment of damages’ mean?

A

A reduction of damages received by the plaintiff because of his own fault (negligence) iro the damage he sustained.

64
Q

What are the criteria for the apportionment of damages?

A

The reasonable person test for negligence.

  • The Act cannot apply where liability does not depend on the defendant’s fault. Thus, the Act does not apply in the case of strict liability.
  • Basic principles were laid down in South British Insurance Co v Smit and Jones v Santam
  • The court does not deal with degrees of causation. If the court is satisfied that the negligent acts of both parties caused the damage, the question of causation is resolved
65
Q

How is the portion of damage determined?

A
  • By a comparison of the respective degrees of negligence of the parties involved.
  • Each party’s degree of negligence is determined by expressing its deviation from the standard of the reasonable person as a percentage
  • Two types of calcs:
    1) Prior-to-Jones-case -> once the plaintiff’s degree of negligence had been established, by default the remainder of the damage fell onto the defendant (because always expressed as 100%)
    2) Jones v Santam: the carefulness of the conduct of each party must be measured separately against the standard of the reasonable person.
66
Q

What is the position of a 3rd party when considerign negligence?

A

Usually may not be raised as a defence to a delictual claim, unless the 3rd party is the servant of the plaintiff and acted within the scope of employment.

67
Q

Discuss fault iro damage or damage-causing event

A
  • Is section 1(1)(a) applicable where the plaintiff was not negligent iro the damage-causing event itself, but where his negligence increased the damage (such as not wearing a seatbelt
  • King v Pearl Insurance: Did NOT constitute contributory negligence
  • Bowkers-case changed this
  • In principle, it is always possible that a plaintiff’s contributory negligence wrt his damage can lead to a reduction in damages, even if he cannot be held responsible for the actual -damage-causing event.
  • Union National South British Insurance case accepted Bowkers
  • Contributory negligence of the plaintiff is only relevant insofar as it has led to an INCREASE in the damage
68
Q

Discuss section 1(3) of the Act

A
  • The Act erroneously construes fault as an act or omission
  • Fault is generally the LEGAL BLAMEWORTHINESS of a person for his wrongful conduct; it is incorrect to view fault as a type of conduct.
69
Q

Discuss Joint Wrongdoers

A
  • Two positions on apportionment of damages for joint wrongdoers
  • Santam v Vorster -> held that each joint wrongdoer’s negligence had to be determined separately for the purpose of apportionment
  • Harrington-case -> decided that the plaintiff’s negligence had to be measured against the joint blameworthiness of the joint wrongdoers viewed as a unity
70
Q

Discuss breach of contract ito the Apportionment of Damages Act

A
  • Thoroughbred Breeders’ Association of SA case the SCA said that the Act does not apply to breach of contract.
71
Q

Discuss voluntary assumption of risk and contributory fault (intent)

A
  • Voluntary assumption of risk has a different meaning under wrongfulness and under fault
  • Iro contributory fault, it is a ground that cancels fault and is not a ground of justification
  • Assumption of risk in this sense implies that the requirements for a ground of justification are absent
  • When the plaintiff or injured party is well aware of the danger but still willfully exposes himself to it, he acts intentionally iro the prejudice he suffers, and blame in the form of contributory intent attaches to him.
  • But, to fulfill the other requirement of intent (i.e. consciousness of wrongfulness), his conduct must also be “consciously unreasonable” (not directed towards the achievement of a lawful goal)
  • The contributory intent (at least dolus eventualis) or assumption of risk by the plaintiff therefore cancels the defendant’s fault.
72
Q

Discuss voluntary assumption of risk and ‘rescue cases’

A
  • Rescue cases in principle server as a defence excluding delictual liability.
  • The moral and social pressures which induce a person to expose himself to a risk in an effort to rescue another from danger created by the defendant’s negligent conduct, is sufficient to negate voluntary assumption of risk.
  • But the danger must not be so extreme as to be out of proportion to the value of the interest protected
73
Q

What is required between conduct and damage?

A

A causal nexus

74
Q

What time of question is causation?

A

A question of fact that must be answered in light of the available evidence and relevant probabilities.

75
Q

What is a causal nexus?

A

Something which (factually) exists or does not exist and it appears that no amount of theorising can take the matter any further.

76
Q

What are the most important theories of causation?

A
  • Conditio sine qua non theory
  • The adequacy theory
  • The direct consequence theory
  • The foreseeability theory
  • The flexible approach
77
Q

What is the method mostly employed by our courts to determine factual causation?

A

Expressed as the condition sine qua non, it is the method of inquiring whether one fact follows from another.

78
Q

What is the conditio sine qua non?

A

An act is the cause of a result if the act cannot be thought away without the result disappearing simultaneously.

79
Q

What are the main criticisms against the conditio sine qua non?

A
  1. The theory is based on a clumsy, indirect process of though that results in circular logic
  2. The conditio fails completely in cases of so-called cumulative causation
  3. The test is in the fact not a test of causation, because it is merely an ex post facto way of expressing a predetermined causal nexus
    4.
80
Q

How does the conditio sine qua non work wrt omissons?

A

Events are “inserted” rather than “omitted”.
- The inquiry requires a retrospective analysis of what wold probably have happened, based on the evidence and what could have been expected in the ordinary course of human endeavour.

81
Q

Discuss the flexible application of the conditio sine qua non

A
  • Lee v Minister of Correct. Services: CC emphasised that the application of the conditio approach wrt both positive conduct and omissions is not inflexible since the strict application would result in an injustice.
  • Common sense rather than strict logic should prevail and here the question as to what is more provable should not be based on a mathematical thought process but on the practical way in which the ordinary person’s mind works.
82
Q

Discuss the determination of factual (causal) nexus

A
  • Factual causation concerns a particular kind of link between at least two facts, i.e. the link existing when one fact arises out of another.
  • Due to the dynamic and complex nature of reality it is neither possible, nor necessary, to find a general “test” by means of which causation in genera may be determined.
  • The existence of a factual causal chain must be demonstrated in view of the proved relevant facts.
  • Knowledge and experience, as well as reliable evidence, are required to determine a causal link.
  • Whether one fact originated from another must be established according to human experience in general and that of the judge of the facts in particular.
  • A causal nexus can exist only between actual (not hypothetical) events.
83
Q

When does the question of legal causation arise?

A

When determining which harmful consequences actually caused by the wrongdoer’s wrongful, culpable act he should he held liable for (i.e. which consequences should be imputed to him).
- The wrongdoer is not liable for harm which is “too remote”

84
Q

When is legal causation problematic?

A

Where a chain of consecutive or remote consequences results from the wrongdoer’s conduct, and where it is alleged that he should not be held legally responsible for ALL the consequences.

85
Q

Which approach to legal causation is used?

A

The flexible approach

86
Q

Discuss the flexible approach (to legal causation)

A
  • Set out in S v Mokgethi
  • There is no single and general criterion for legal causation which is applicable in all instances. And so a flexible approach is suggested.
  • The basic question is whether there is a close enough relationship between the wrongdoer’s conduct and its consequences for such consequences to be imputed to the wrongdoer in view of policy consideration based on reasonableness, fairness and justice.
  • The theories of legal causation are at the service of the imputability question and not vice versa.
  • Justice will not be served if a court commits itself dogmatically to a single theory.
  • Cape Empowerment Trust v Fisher Hoffman Sithole
87
Q

What is a novus actus interveniens?

A
  • A new intervening cause
  • An independent event which, after the wrongdoer’s act has been concluded, either caused or contributed to the consequence concerned.
88
Q

Discuss the novus actus interveniens

A
  • Where a novus actus completely extinguishes the causal connection between the conduct of the wrongdoer and the consequence, with the result that the wrongdoer’s act can no longer be considered to be a factual cause of the consequence, the actor goes free.
  • Where a novus actus only influences the result, it limits the liability of the wrongdoer and thus plays an important part in causation.
  • In each case it will have to be determined within the framework of the relevant imputability test, whether the novus actus has had the effect of severing the legal nexus.
  • When applying the flexible approach: The question is whether the novus actus between the defendant’s conduct and the relevant consequence has been such that the consequence cannot be imputed to the defendant on the basis of policy, reasonability, fairness and justice.
  • In applying the direct consequences test: The question is whether the novus actus breaks the ‘directness’ of the consequences which is required for liability; and when applying foreseeability, the question is whether the novus actus influences the degree of foreseeability to such an extent that it may be said that the consequence was not reasonably foreseeable as a result of the novus actus,
89
Q

How can a novus actus be brought about?

A

By the (culpable) conduct of the plaintiff himself, the conduct of a third party, or by natural factors.

90
Q

When will an event qualify as a novus actus?

A

Only if the event was not reasonably foreseeable.
- If it was reasonably foreseeable at the moment of the act such an event may not be considered to be a novus actus that may influence the imputability of harm to the actor.

91
Q

Which rule applies to ‘egg-skull’ cases?

A

The talem qualem rule

92
Q

When do ‘egg-skull’ cases arise?

A

Where the plaintiff, because of one or other physical, psychological or financial weakness, suffers more serious injury or loss as a result of the wrongdoer’s conduct than would have been the case if the plaintiff had not suffered from such a weakness.

93
Q

What is the majority opinion on egg-skull cases?

A

The wrongdoer should also be liable for the harm which may be ascribed to the existence of the weakness concerned
- Talem qualem rule: You must take your victim as you find him

94
Q

What is the most acceptable approach to egg-skull cases?

A

The flexible criterion for legal causation as found in Smit v Abrahams

  • “Just another fact to be considered with all the other facts of each particular case…”
  • Thus, the question is whether in light of all the circumstances of the case, amongst others the egg-skull situation, the damage should reasonably be imputed to the defendant
95
Q

What kind of function does the law of delict have iro damage?

A

A compensatory function

96
Q

Which specific forms may the general function of compensation take?

A
  1. Compensation for damage - “Damages” is a monetary equivalent of damage awarded to a person with the object of eliminating as fully as possible his past as well as future patrimonial and non-patrimonial damage
  2. Satisfaction - If damage is incapable of being compensated because money cannot be a true equivalent of the impaired interest.
97
Q

What is the Latin term for ‘damage’?

A

Damnum

98
Q

Define ‘damage’

A

The detrimental impact upon any patrimonial or personality interest deemed worthy of protection by the law

  • Damage is only that reduction in the utility of interests which has been brought about by an UNCERTAIN event.
  • A reduction in utility which is sure to take place (i.e. wear and tear) cannot be regarded as damage
99
Q

Which kind of harm is recognised?

A

Only harm iro legally recognised patrimonial and non-patrimonial interests of a person qualifies as damage.

100
Q

Which arguments prove that damage is a broad concept which consists of patrimonial and non-patrimonial loss?

A
  1. Patrimonial and non-patrimonial loss have a common denominator, namely the diminution in the utility of any interest which the law deems worthy of protection.
  2. Legal practice uses a wide concept of damage.
  3. The action for pain and suffering has developed in conjunction with the Aquilian action as action which is primarily intended to provide compensation.
    - The action for pain and suffering has made it possible to recover a form of imperfect compensation on account of physical injuries
101
Q

What is the major point of agreement between patrimonial and non-patrimonial damage?

A

The utility or quality of an interest protected by law is infringed

102
Q

What are the main differences between patrimonial and non-patrimonial damage?

A
  1. Patrimonial loss can be directly or naturally expressed in money while non-pecuniary loss is at most only indirectly measurable in this way
  2. The extent of patrimonial loss can be ascertained with greater precision than the extent of non-patrimonial loss. The amount of damages for patrimonial loss can be determined by using objective criteria (i.e. market value); but damages for non-patrimonial loss relate to injury to subjective feelings, and can only be assessed by means of an equitable estimate
  3. Damages for patrimonial loss are of the same nature as the impaired patrimonial interest and are thus a genuine equivalent of such damage. In non-patrimonial loss there is no true relationship between money and the injury to personality
  4. Patrimonial loss implies that the utility of a patrimonial interest is reduced, while an interest of personality is the subject of reduction in non-pecuniary damage.
103
Q

Discuss the relationship between damage and wrongfulness (unlawfulness)

A
  • One should not attempt to define damage ito delictual wrongfulness.
  • Harm resulting from a lawful act performed in necessity obviously constitutes damage, although no-one can be held liable in respect thereof, as the other requirements of delictual liability are not met.
104
Q

Discuss the relationship between damage and factual causation

A
  • Damage and factual causation are 2 separate elements, but they have a particular relationship with each other, as causation is determined wrt a consequence (damage).
  • There can also be an overlap between the tests employed to establish causation and damage.
  • Moreover, in order to determine causation, the alleged damage-causing event must be connected with a particular consequence (damage).
105
Q

Define patrimonial loss

A
  • The detrimental impact on any patrimonial interest deemed worthy of protection by the law.
  • Patrimonial loss may also be seen as the loss or reduction in value of a positive asset in someone’s patrimony or the creation or increase of a negative element of such patrimony.
106
Q

What is the juridical concept of patrimony?

A

Consists of all his patrimonial rights (subjective rights with a monetary value), his expectations to acquire patrimonial rights and all legally enforceable obligations (or expectations) with a monetary value.

107
Q

Which elements relate to patrimony?

A
  1. Positive elements of someone’s patrimony - Refers to all patrimonial rights such as real rights, immaterial property rights and personal rights. Expectations of patrimonial benefits are also part of a person’s estate and this is the legally accepted expectation to acquire patrimonial rights in future.
  2. Negative elements of someone’s patrimony - Someone’s patrimony is burdened or reduced by the creation, acceleration or increase of a monetary debt or liability. A debt constitutes damage even though the debtor has no assets to pay such debt. An expectation of debt is also part of a person’s patrimony.
    - The utility or quality of these patrimonial elements is always measured in money by using the correct criterion of value at the proper time.
108
Q

Name 3 ways in which patrimonial loss can be caused

A
  1. Loss of a patrimonial element - When property is destroyed, a patrimonial right iro is lost and a person’s patrimony diminishes in value. Loss of an expectancy occurs when the expectation can no longer be realised.
  2. Reduction in value of a patrimonial element - Where the object of a patrimonial right is infringed, the utility value of such right is also reduced.
  3. The creation or increase of a debt (expense) and the creation or acceleration of an expectation of debt - If a delict causes an injured person to incur reasonable medical expenses, such expenses constitute damage. The mere creation of a debt immediately constitutes damage even before the debt has to be satisfied.
109
Q

Name 4 forms of patrimonial loss recognised in practice

A
  1. Damnum emergens and lucrum cessans - Lucrum cessans means loss of profit, but is also used to describe prospective loss and the loss of a patrimonial expectancy. Damnum emergence refers to all other forms of damage.
  2. Damage to property and pure economic (financial) loss - There is a clear distinction between damage and physical damage to property.
  3. Direct and consequential loss - The distinction between direct and consequential damage is made for the purposes of limitation of liability. Direct loss indicates the immediate or direct result of a damage-causing event, while consequential damage is that loss which flows from direct loss.
  4. General (instrinsic) and special (extrinsic) damage - General means damage which is presumed to flow from an unlawful act an which need only be pleaded generally, while special damage means loss iro which such a presumption does not apply and which has to be specially pleaded and proved.
110
Q

What approach is used to assess patrimonial damage?

A

A comparative method

111
Q

Discuss the sum-formula approach

A
  • Damage consists in the negative difference between the relevant person’s current patrimonial position and his hypothetical patrimonial position that would have been the current position if the event had not taken place.
  • The reason why a hypothetical patrimonial position of the plaintiff is used is to provide for prospective damage.
112
Q

Discuss the concrete concept of damage

A
  • What WAS must be compared to what IS and that the current position is not to be compared with the hypothetical position which would have existed had the delict not been committed.
113
Q

Discuss the time for the assessment of damage

A
  • The date of commission of a delict is generally the decisive moment for assessing damage (this includes future loss).
  • The date of commission of a delict is the earliest date on which all the elements of a delict are present.
  • As far as damage is concerned, this does not mean that the full extent of the damage should have occurred: if all the otehr requirements of a delict are present, the date on which the first damage is manifested is used.
114
Q

Discuss prospective patrimonial damage

A
  • Lucrum cessans
  • The practical problems concern the speculative processes which are necessary to quantify such loss, since there is no empirical knowledge available about future events.
  • The main reason why assessment of damages and damages iro prospective loss is relevant relates to the “once an for all” rule. - A plaintiff who claims damages on a specific cause of action has only 1 chance to claim damages for all damage suffered as well as prospective loss.
115
Q

What is prospective loss?

A
  • Damage in the form of patrimonial or non-patrimonial loss which will, with a sufficient degree of probability, materialise after the date of assessment of damage.
116
Q

Name 5 forms of prospective loss

A
  1. Future expenses on account of a damage-causing event
  2. Loss of future income
  3. Loss of business profit and professional profit
  4. Loss of prospective support
  5. Loss of a chance to gain a benefit
117
Q

What are the practical implications of the “once and for all” rule?

A
  • Prescription iro a claim for damages commences as soon as a cause of action accrues and the debt iro the payment of damages is claimable
  • A plaintiff who has sued with or without success for a part of his damage may not thereafter sue for another part if both claims are based on a single cause of action
118
Q

Which exceptions apply to the “once and for all” rule?

A
  • Where an act causes nuisance, a claim may be instituted each time such nuisance causes damage.
  • In subsidence cases where a person causes damage through unlawful excavation, there is a cause of action every time that damage occurs and a plaintiff is not expected to claim once for all such damage
  • In the case of a continuing wrong which causes damage, there is a series of rights of action as damage manifests itself and the plaintiff need not claim once and for all.
  • When the provisions of third party liability ito the RAF Act are applicable, there are qualifications to the “once and for all” rule, as this Act does not apply to damage associated with injury to property.
119
Q

Discuss causes of action iro “once and for all” rule

A
  • The concept of a cause of action is of crucial importance
  • Two approaches: “Single cause” theory - every damage-causing event constitutes only one cause of action. Emphasis is on the conduct which causes damage and not on the damage itself.
  • A cause of action exists if all its requirements (facta probanda) are present.
  • With the single cause theory, it is accepted that all the different claims consequent upon an unlawful act fall within one cause of action.
  • With the facta probanda approach, the requisites of 2 ore more claims are compared to established whether there is a substantial difference despite possible overlapping.
120
Q

Discuss mitigation of loss

A
  • It is a principle of the law of delict that a plaintiff may not recover damages for a loss which is the factual result of the defendant’s conduct but which could have been prevented if the plaintiff had taken reasonable steps.
  • A failure to ensure that damage does not accumulate can be seen as a failure by the plaintiff to take reasonable steps to limit the initial loss or an omission to prevent further damage.
  • The plaintiff is obliged to take all reasonable steps to limit the damage caused by the defendant’s delict.
  • A plaintiff who has taken reasonable steps to mitigate his loss may also recover damages for any loss caused by such reasonable steps
  • Where the plaintiff has reduced his damages by taking reasonable steps in mitigation, the defendant is only liable to compensate him for the actual loss he sustained.
  • The onus of proving that the plaintiff did not properly fulfil his duty to mitigate rests on the defendant.
121
Q

Discuss the nature, object and form of damages

A
  • Damages are the monetary equivalent of damage awarded to a person with the object of eliminating as fully as possible his past as well as future damage
  • Damages are the primary remedy, not restitution in kind or specific performance.
  • Damages for patrimonial loss are never intended to punish the defendant or to provide satisfaction to the plaintiff or the community.
  • Nominal damages should not be awarded where the plaintiff has only proved the invasion of a right but no damage.
  • Damages must be expressed in money and awarded as a lump sum.
122
Q

Name the 5 types of injury to personality iro physical-mental integrity

A
  1. Pain and suffering - A plaintiff may claim compensation for all pain, suffering and discomfort flowing from the injury, as well as the consequent medical treatment.
  2. Shock (psychological injury) - Only emotional shock of a relatively serious nature is actionable.
  3. Disfigurement
  4. Loss of amenities of life - Refers to any disability which diminishes the victim’s enjoyment of life
  5. Shortened life expectancy
123
Q

What does transmissibility mean?

A

Whether the actions are heritable and cedable

124
Q

Discuss the transmissibility of the actio legis Aquilia

A

Actively and passively heritable (where the plaintiff dies, the action falls into his estate and can be instituted by the executor (active transmissibility), or where the defendant dies, the action can be instituted against his estate (passive transmissibility)) and is freely cedable.
- Litis contestatio has no effect

125
Q

Discuss the transmissibility of the actio iniuriarum

A

Actively and passively heritable only after litis contetatio

  • Claim, therefore, lapses if the plaintiff or the defendant dies before litis contestatio.
  • Not cedable
126
Q

Discuss the transmissibility of the action for pain and suffering

A

Actively and passively heritable only after litis contetatio

  • Claim, therefore, lapses if the plaintiff or the defendant dies before litis contestatio.
  • Not cedable
127
Q

Which other remedy is available that is not aimed at compensation?

A

Interdict

128
Q

What are the 2 forms of an interdict?

A

Prohibitory - Prohibits the wrongdoer from committing a wrongful act at all or from continuing with a wrongful act
Mandatory - Requires positive conduct on the part of the wrongdoer to terminate the continuing wrongfulness of an act that has already been committed

129
Q

Is Fault required for an interdict?

A

No, since the interdict is directed at the prevention of a wrongful act, and not at retribution for wrongfulness already committed, there is no requirement for fault.

130
Q

What are the 3 requirements for the granting of an interdict?

A
  1. There must be an act by the respondent
  2. The act must be wrongful - There must be a threat to or an infringement of a “clear right” of the applicant.
  3. No other ordinary remedy which would prevent the (continued) wrongful conduct must be available to the applicant.
    - An interdict may be final or pendente lite (temporary)
131
Q

Discuss the concurrence of remedies

A
  • One and the same act may in principle result in several - different or alternative - remedies.
  • An act from which various claims arise, each of which places a distinctive action at the plaintiff’s disposal, gives rise to Different Remedies.
  • An act from which only one or more claims arise but which offers a choice between different remedies, results in Alternative Remedies.
132
Q

What 3 forms of concurrence is mostly used?

A
  • Concurrence of the actio iniuriarum and the contractual action;
  • Concurrence of the action for pain and suffering and the contractual action;
  • Concurrence of the choice between the actio legis Aquiliae and the contractual action
133
Q

Discuss ‘exclusion clauses’

A
  • Parties to a contract may restrict their liability - contractual as well as delictual - through a so-called exclusion clause.
  • The exact restriction on the wrongdoer’s liability will depend on the interpretation of the clause concerned, and such interpretation will influence the question of what remedies the prejudiced party has at his disposal.
134
Q

When does presction start to run?

A

As soon as the debt is due and this occurs from the moment all the elements of a delict are present, provided also that the creditor has knowledge (or ought reasonably to know) of the identity of the wrongdoer and the facts from which the debt arises.

135
Q

Discuss joint wrongdoers

A
  • Damage can be caused by more than 1 wrongdoer (i.e. joint wrongdoers)
  • The position is regulated by the Apportionment of Damages Act
  • The Act abolishes the common law distinction between joint wrongdoers and concurrent wrongdoers.
  • Joint wrongdoers are now defined as “persons who are jointly and severally liable IN DELICT for the SAME DAMAGE”
  • If joint wrongdoers comply with this requirement the Act is applicable irrespective of whether they acted negligently or intentionally
  • Joint wrongdoers are in solidum liable for the full damage
  • The plaintiff has the right to sue whichever joint wrongdoer he chooses for the amount of damages
  • If the court is satisfied that all the joint wrongdoers are before it, it may apportion the damages among them on the basis of their relative degrees of fault, and may give judgment against every wrongdoer for his part of the damages.
  • Where a plaintiff or a defendant in an action notifies a joint wrongdoer of the action before litis contstatio, the defendant may claim recourse (contribution) from that joint wrongdoer if he has paid the full amount of damages to the plaintiff as a result of a judgment against him.

LDEL - Delict (2 decks)

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