Law Of Delict Pack Final 2 Notes

Delict PACK Final-2 - Notes law of delict (University of South Africa) lOMoARcPSD| CLS cc © Delict Pack 1 LAW OF DELICT: INTRODUCTION: Private law: regulates relationships between individuals in a community. Role of delict: indicate which interests are recognized by law, under what circumstances they are protected against infringement and how a disturbance in the balance is restored. Definition of delict: a delict is an act of a person, which in a wrongful and culpable way causes harm to another. 5 requirements: 1. Act 2. Wrongfulness 3. Fault 4. Causation 5. Damage All must be present before conduct can become a delict. Delict and a crime: Delict: 1. Protects private interests (private law) 2. The aggrieved party institutes the action 3. Objective: claim damages as compensation 4. Cant have attempted delict Crime: 1. Protects public interest (public law) 2. The state prosecutes 3. Objective: punish the criminal 4. Can have attempted crime Both are wrongful culpable acts causing damage Delict and breach of contract: Delict: 1. Excludes non-fulfillment of a duty to perform (real right) 2. Primary remedy = damages Breach of contract: 1. Breach = non-fulfillment of a contractual obligation to perform (personal right) 2. Primary remedy: performance of the contract Delict, the constitution and fundamental rights: the constitution is supreme and conduct inconsistent with it is invalid. lOMoARcPSD| CLS cc © Delict Pack 2 Critical Law Studies CC © Fundamental rights can be limited by the law of general application, but only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity equality and freedom (S36). Courts must promote the values that underlie this society. International law must be taken into account. Direct application: the fundamental rights relevant to or connected with the law of delict include = right to property, life, freedom, privacy etc. In case of an infringement anyone entitled to relief can approach a competent court. Indirect application: all private law rules, principles and those regulating the law of delict are subject to chapter 2. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 3 Critical Law Studies CC © POSSIBLE QUESTIONS: NAME THE 3 MOST NB DELICTUAL ACTIONS & INDICATE IN EACH INSTANCE FOR WHAT TYPE OF DAMAGE EACH ACTION IS AVAILABLE & WHAT FORM OF FAULT IS REQUIRED TO INSTITUTE EACH ACTION. 1. Patrimonial damage (damnum inuria datum): Damage for the wrongful & culpable (negligence / intention) causing of patrimonial damages ($) are claimed. = Actio legis aquiliae. 2. Injury to personality: Satisfaction for the wrongful & intentional injury to personality. = Actio inuriarum. 3. Action for pain & suffering: Compensation for injury to personality as a result of the wrongful & negligence / intention impairment of a bodily or physical-mental integrity is claimed DELICT & CONTRACT ARE SIMILAR IN SO FAR AS BOTH OF THEM CONSTITUTE WRONGFUL CONDUCT IN PRIVATE LAW. EXPLAIN WHAT THE DIFFERENCES ARE BETWEEN THEM? (4) DELICT BREACH OF CONTRACT 1. Excludes non-fulfilment of a duty to perform (Real right) 2. Primary remedy = Damages 1. Breach = Non-fulfilment of a contractual obligation to perform (Personal right) 2. Primary remedy = Performance of the contract. STATE THE DIFFERENCES BETWEEN DELICT & CRIME (4) DELICT CRIME 1. Protects private interests (Private law) 2. The aggrieved party institutes the action 3. Objective : Claim damages as compensation 4. Can’t have attempted delict 1. Protects public interests (Public law) 2. The state prosecutes 3. Objectives : Punish the criminal 4. Can have attempted crime WRITE NOTES ON THE “INDIRECT” APPLICATION OF THE BILL OF RIGHTS IN THE LAW OF DELICT (5) Indirect Application: Is all private law rules, principles & those regulating the law of Delict are subject to Chapter 2 of the Constitution (Namely Fundamental Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 4 Critical Law Studies CC © Rights like, Right to religion, life, dignity, etc). Indirect application is about delictual issues, e.g.: Infringement of 1 of your fundamental Rights. One first uses indirect application before one uses direct application. LIST 10 FUNDAMENTAL RIGHTS ENTRENCHED IN CHAPTER 2 OF THE CONSTITUTION WHICH ARE RELEVANT TO THE LAW OF DELICT (5) 1. Religion 2. Speech 3. Life 4. Privacy 5. Property 6. Security 7. Education 8. Adequate housing 9. Good name 10. Dignity Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 5 Critical Law Studies CC © THE ACT Consists of a voluntary human commission or omission: elements: 1. Human act: where an animal is used as an instrument a human act is still present. A juristic person can act through its agents (company) and be held delictually liable for its actions. Gijzen: held – delictual liability can occur without there being an act on the part of the defendant, in the case of land subsistence cases. Such an act must be wrongful: an act and its consequences may be separated from each other in time and space, but there always has to be an act. 2. Voluntary conduct: the act must have been performed voluntarily – the wrongdoer must have had control over his muscular movements. S v Russell: X forgot to warn others that an electric current had been switched on. Someone was electrocuted. Russell stated that he wasn’t guilty because he hadn’t willed or desired the outcome. Court held: that the test was whether he was able to utter a warning = GUILTY. 3. Commission and Ommission: conduct can be in the form of a commission or omission. Liability for an omission is in general more restricted than liability for a positive act (commission). The law is hesitant to find that there was a legal duty on someone to act positively and so to prevent damage to another. The defence of Automatism: The voluntary conduct on the part of the defendant is a requirement for delictual liability. The defendant could argue that the conduct complained of doesn’t satisfy the requirement of voluntariness. This is where someone acted mechanically = sleep, unconscious, fainting fit, absolute compulsion (X grabs Y’s hand and stabs P using Y’s hand), epileptic fit, serious intoxication, black out. If these are present a person is incapable of controlling his bodily movement = purely mechanical action and that person raises the defence of automatism Molefe: the defendant doesn’t bear the onus to prove that he was in a state of automatism, its for the plaintiff to prove that the defendant acted voluntarily. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 6 Critical Law Studies CC © Dhlamini: X was sleeping on the floor in a room with others when he had a nightmare; he then stabbed and killed Y with a knife while under the influence of his dream. He was not convicted of any crime. Mkize: X stabbed and killed Y with a knife while X was having an epileptic fit, he was acquitted of murder. Du Plessis: X was charged with negligent driving as he injured a pedestrian. He was 72 years old and experienced a black-out due to low blood pressure. He was found not guilty. Antecedent liability: The defence of automatism will not succeed if the defendant intentionally created the situation in which he acts involuntarily in order to harm another (actio libera in causa). The defendant may not successfully rely on the defence of automatism where he was negligent with regard to his automatic conduct. This is where the reasonable man would have foreseen the possibility of causing harm while in a state of automatism. E.g. drinking while knowing or reasonably foreseeing that you will later drive a car – knowing you may suffer an epileptic fit but still driving. Victor: X was convicted of negligent driving despite the fact he caused the accident during an epileptic fit as the evidence revealed he’d been suffering from fits for the last 13 years and had insufficient reason to believe he would not have a fit on that day. In respect of sane automatism (where it’s not a consequence of mental illness) the onus is on the plaintiff to prove that the defendant has acted voluntarily and therefore not mechanically. Automatism doesn’t mean that there’s no voluntary act whatsoever by the defendant which caused the damage, but only that the conduct in question wasn’t voluntary. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 7 Critical Law Studies CC © POSSIBLE QUESTIONS: WRITE NOTES ON CONDUCT / ACT AS AN ELEMENT OF DELICT. INCL A BRIEF DISCUSSION ON THE MOST NB DEFENCE EXCLUDING THIS ELEMENT. (10) Conduct: Is a voluntary human act or omission. 1. Human: where an animal is used as an instrument a human act is still present. A juristic person can act through its agents (CO) & be held delictually liable for its actions. 2. Voluntary Conduct: The act must have been performed voluntarily – the wrongdoer must have had control over his muscular movements. The Defence of Automatism: The voluntary conduct on the part of the defendant is a requirement for delictual liability. The defendant could argue that the conduct complained of doesn’t satisfy the requirement of voluntariness. This is where someone acted mechanically (incapable of controlling his bodily movements): 1. Sleep (Dhlamini) 2. Unconscious 3. Fainting fit 4. Absolute compulsion (X grabs Ys hand & stabs P using Ys hand) 5. Serious intoxication 6. Black out 7. Epileptic fit (Victor) If these are present a person is incapable of controlling his bodily movements = purely mechanical action & that person raises the defence of Automatism – which must be proved on a balance of probabilities by the defendant (onus on the defence). This defence won’t succeed if the defendant intentionally created the situation in which he acts voluntarily in order to harm another (actio libera in causa). Defendant may not successfully rely on this defence if he was negligence in his automatic conduct. This is where the reasonable person would have foreseen the possibility of causing harm while in a state of automatism. In respect of sane automatism (not mental illness) onus is on plaintiff to prove defendant acted voluntary & therefore nor mechanically. Sane automatism doesn’t mean there’s no voluntary act whatsoever by the defendant which caused damage, but only that conduct in question wasn’t vol. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 8 Critical Law Studies CC © PERCY DEEP WALKS ON SIDE WALK. SHE FALLS INTO HOLE & FRACTURES A FEMUR BONE. IT TRANSPIRES THAT THE HOLE WAS DUG BY MUNICIPAL WORKERS TO MAKE A NEW SEWERAGE SYSTEM. PERCY WANTS TO RECOVER DAMAGES FROM MUNICIPALITY. ONLY PRECAUTIONARY MEASURE TAKEN BY THE MUNICIPALITY TO PROTECT THE PUBLIC WAS TO CORDON OFF THE HOLE WITH A RIBBON. THE REPRESENTATIVE OF THE MUNICIPALITY AVERS THAT THE MUNICIPALITY DIDN’T ACT FOR THE PURPOSE OF LAW, SINCE NO MUNICIPAL OFFICER WILLED PERCYS INJURIES. BRIEFLY DISCUSS THE MERIT OF THIS STATEMENT. (2) Conduct can be in the form of a commission or omission. Liability for an omission is in general more restricted than liability for a positive act (commission). The law is hesitant to find that there was a legal duty on someone to act positively & so to prevent damage to another. But this must be distinguished from the case where a person fails to take precautions against the occurrence of damage & his failure isn’t part of a positive act. The municipality had a legal duty in terms of the legal convictions of the community to prevent this accident from happening. JOHN FORGETS TO WARN COSTA THAT A CABLE IS CARRYING AN ELECTRIC CURRENT. COSTA TOUCHES CABLE & SUSTAINS SERIOUS BURNS. AGAINST COSTAS ACTION FOR DAMAGES, JOHN RAISES A DEFENCE THAT HE DIDN’T WILL OR DESIRE TO HARM & THAT HE THEREFORE DIDN’T ACT. DISCUSS MERITS OF DEFENCE. (2) Conduct can be in the form of a commission or omission. Liability for an omission is in general more restricted than liability for a positive act (commission). The law is hesitant to find that there was a legal duty on someone to act positively & so to prevent damage to another. But this must be distinguished from the case where a person fails to take precautions against the occurrence of damage & his failure isn’t part of a positive act. Relevant case law: S v Russel has the similar facts & was found Guilty. So should X in these facts. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 9 Critical Law Studies CC © FRED IS BEING TREATED FOR EPILEPSY. HE FORGOT TO TAKE HIS MEDICINE & DRIVES A CAR. WHILST DRIVING HE SUFFERS AN EPILEPTIC FIT & CAUSES AN ACCIDENT, CAUSING DAMAGE TO BARNEYS CAR. CAN FRED SUSTAIN DELICTUAL LIABILITY DISCUSS BRIEFLY (4) The Defence of Automatism: The voluntary conduct on the part of the defendant is a requirement for delictual liability. The defendant could argue that the conduct complained of doesn’t satisfy the requirement of voluntariness. Defendant may not successfully rely on this defence if he was negligence in his automatic conduct. This where the reasonable person would have foreseen the possibility of causing harm while in a state of automatism. X will sustain delictual liability for the damage caused to Y. REMMY & MARTIN GO TO A PARTY. REMMY CONSUMES A WHOLE BOTTLE OF JACK DANIELS. MARTIN NOTICES THAT REMMY DRINKS TOO MUCH, BUT STILL ACCEPTS A RIDE HOME WITH HIM. ON WAY TO MARTINS HOUSE, REMMY LOSES CONTROL OVER THE CAR & COLLIDES AT HIGH SPEED WITH A TREE. MARTIN = BACK INJURIES FOR WHICH HE IS HOSPITALISED FOR A PERIOD OF 2 WEEKS. MARTIN WISHES TO RECOVER HIS MEDICAL EXPENSES FROM REMMY. REMMY AVERS THAT HE DIDN’T ACT VOLUNTARILY FOR THE PURPOSE OF DELICTUAL LIABILITY. IDENTIFY HIS DEFENCE & BRIEFLY DISCUSS THE MERITS THEREOF. (4) The Defence of Automatism: The voluntary conduct on the part of the defendant is a requirement for delictual liability. The defendant could argue that the conduct complained of doesn’t satisfy the requirement of voluntariness. Defendant may not successfully rely on this defence if he was negligence in his automatic conduct. This where the reasonable person would have foreseen the possibility of causing harm while in a state of automatism. Thus, John will be delictually liable for Mary’s damages. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 10 Critical Law Studies CC © GENEVIVE IS INVOLVED IN AN ACCIDENT WHILE DRIVING. SHE REGAINS CONSCIOUSNESS AND HAS NO RECOLLECTION OF HOW ACCIDENT TOOK PLACE. SHE IS HOSPITILISED & DURING TREATMENT FOR HEAD INJURIES DOCTORS DETERMINE THAT SHE SUFFERED AN EPILEPTIC FIT AT TIME OF ACCIDENT. THE CAR OF GORDON, THE OTHER PERSON INVOLVED IN ACCIDENT IS BADLY DAMAGED. DISCUSS (10) CAN IT BE SAID THAT IT WAS AN ACT ON PART OF GENEVIVE THAT DAMAGED GORDONS CAR? Conduct: Is a voluntary human act or omission. 1. Human: where an animal is used as an instrument a human act is still present. A juristic person can act through its agents (CO) & be held delictually liable for its actions. 2. Voluntary Conduct: The act must have been performed voluntarily – the wrongdoer must have had control over his muscular movements. The Defence of Automatism: The voluntary conduct on the part of the defendant is a requirement for delictual liability. The defendant could argue that the conduct complained of doesn’t satisfy the requirement of voluntariness. This is where someone acted mechanically (incapable of controlling his bodily movements): 1. Sleep (Dhlamini) 2. Unconscious 3. Fainting fit 4. Absolute compulsion (X grabs Ys hand & stabs P using Ys hand) 5. Serious intoxication 6. Black out 7. Epileptic fit (Victor) If these are present a person is incapable of controlling his bodily movements = purely mechanical action & that person raises the defence of Automatism – which must be proved on a balance of probabilities by the defendant (onus on the defence). It’s not an act on the part of X because he was acting out in a mechanical fashion, & wasn’t capable of controlling his bodily movements. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 11 Critical Law Studies CC © WOULD IT MAKE A DIFFERENCE TO YOUR ANSWERER IF GENEVIVE HAD BEEN RECEIVING TREATMENT FOR EPILEPSY BEFORE THE ACCIDENT, BUT SHE FAILED TO TAKE HIS MEDICINE BEFORE ACCIDENT TOOK PLACE? Yes it would make a big difference, because… This defence won’t succeed if the defendant intentionally created the situation in which he acts voluntarily in order to harm another (actio libera in causa). Defendant may not successfully rely on this defence if he was negligence in his automatic conduct. This where the reasonable person would have foreseen the possibility of causing harm while in a state of automatism. Thus X will be delictually liable for the damage of Y. DEFINE CONDUCT (2) Conduct: Is a voluntary human act or omission. 1. Human: where an animal is used as an instrument a human act is still present. A juristic person can act through its agents (CO) & be held delictually liable for its actions. 2. Voluntary Conduct: The act must have been performed voluntarily – the wrongdoer must have had control over his muscular movements. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 12 Critical Law Studies CC © WRONGFULNESS For liability to follow an act, prejudice must be caused in a wrongful or unreasonable manner. Without wrongfulness defendant cannot be held liable. Determination of wrongfulness looks at 2 things: 1. Was there an infringement of a legally protected interest – the act must have a harmful consequence. 2. If the interest has been prejudiced, legal norms are used to determine if it occurred in a legally reprehensible manner (unreasonable manner) – boni mores test. Act and consequence: An act is only delictually wrongful when it has as its consequence the factual infringement of an individual interest. An act on its own without a harmful consequence can never be held delictually wrongful – e.g. X races down main street at 160 km in peak hour traffic, his act isn’t considered wrongful in delict as there has been no infringement of an interest. An act and its consequence are always separated by time and space. Pinchin v Santam Insurance Co Ltd: A pregnant woman was involved in a car accident caused by the defendant’s negligence. When the child was born it was found to suffer from serious brain damage. Compensation was claimed from the defendant on the child’s behalf. But at the time of the defendants act the child was in ventre matris and as a result the child had no legal personality and therefore no legally protected interest that could be infringed. The judge – was of the opinion that the child did have an action but it failed because there was no evidence that the accident caused the brain injuries. The judge based his view on the nasciturus fiction – an unborn child is regarded as having been born whenever it’s in the child’s interests. Joubert argues: it’s unnecessary to rely on the nasciturus fiction to find that the child would have an action – because the act and its consequences are separate both in time and space – the child need not have legal capacity at the time of the act. The defendant’s conduct resulted in a harmful consequence much later. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 13 Critical Law Studies CC © BONI MORES TEST: BASIC TEST FOR WRONGFULNESS Boni mores test: The legal convictions of the community (boni mores test) as the basic test for wrongfulness: The general norm to see if an infringement of interests is unlawful, is the legal convictions of the community = boni mores. This is an objective test Basic question: whether according to the legal convictions of the community and in light of all the circumstances of the case the defendant infringed the interests of the plaintiff in a reasonable or unreasonable manner. The application of the BM test = the ex post facto weighing up of the interests of the defendant actually promoted by his act and those which he infringed. The court must weigh the conflicting interests of the defendant and plaintiff in light of all the circumstances to decide whether the infringement of the plaintiff’s interests was reasonable or not. This is done by looking at factors: the foreseeable loss, the costs to prevent loss, the motive of the defendant, extent of the harm etc. Subjective factors The objective nature of the BM test appears from the fact that subjective factors such as the defendant’s mental disposition, knowledge, and motive normally don’t play a role in determining wrongfulness. To determine wrongfulness it’s the weighing up of interests to determine whether the defendant acted reasonably or not and subjective factors are normally irrelevant. In exceptional circumstances subjective factors do play a role in determining wrongfulness – a defendant who plant deciduous trees on the boundary of his property for the sole purpose of injuring his neighbour = wrongful. The fact that the defendant actually knew or subjectively foresaw that he plaintiff would suffer damage as a result of his conduct is taken into consideration in determining wrongfulness in cases of pure economic loss or omissions. BM test is the basic test for wrongfulness but still functions at a supplementary level because the convictions of the community concerning what is reasonable or unreasonable have over time found expression in common law, statutory norms, grounds of justification etc. so its seldom necessary to apply the BM test directly. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 14 Critical Law Studies CC © There are 2 ways the BM test is applied as a supplementary test for wrongfulness: 1. When the wrongfulness of the defendants conduct doesn’t appear from the validation of a pre-existing norm or the lawfulness thereof doesn’t appear from the presence of a recognized ground of justification. E.g. champion swimmer sees a drowning child and does nothing. 2. When borderline cases need refinement: e.g. S v Goliath under compulsion from Y and fearing for his own life helped Y to kill Z – X raised the defence of necessity. So look to more precise methods of determining wrongfulness: a) Infringement of a subjective right b) Non-compliance with a legal duty to act Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 15 Critical Law Studies CC © DOCTRINE OF SUBJECTIVE RIGHTS: Tommie Meyer Case: the courts accepted the doctrine of subjective rights = wrongfulness consists of the infringement of a subjective right. Said there was a duel relationship: • Subject-object relationship: provides the holder of the right with the power to use, enjoy and alienate the object of his right. The limits of his rights are determined by the law. • Subject-subject relationship: the holder of the right can enforce his powers over a legal object against all other legal subjects 5 classes of rights: 1. Real rights: things 2. Personality rights: good name 3. Personal rights: payment etc 4. Immaterial property rights: intellect/poem 5. Personal immaterial property rights: earning capacity Look at whether the rights has been infringed: was the holder of the right was disturbed in the use and enjoyment of his right (if the subject-object relationship has been disturbed and whether the infringement complained of took place in a legally reprehensible manner. If established the conduct is wrongful. LIABILITY FOR AN OMMISSION: General rule: a person doesn’t act wrongfully for the purposes of law of delict where he fails to act positively to prevent harm to another. - There is no absolute duty to prevent loss. Liability follows only if the omission was in fact wrongful – where a legal duty rested on the defendant to act positively to prevent harm from occurring and he failed to comply with that duty. PRIOR CONDUCT: A person acts prima facie wrongfully when he creates a new source of danger b.m.o a commission and then fails to eliminate that danger, with the result that harm is caused to another person. Prior conduct isn’t a prerequisite for the existence of a legal duty – but at one stage this was the only category where liability was imposed on a failure to act. Downloaded by Thomas Mboya () lOMoARcPSD| CLS cc © Delict Pack 16 Critical Law Studies CC © 1st introduced in Halliwell case – prior conduct had to be present before one would be liable for an omission. MUNICIPLITY CASES: Halliwell v JHB municipal council: The council laid cobblestones adjacent to tramlines in road surface (experiment) – these wore smooth. H was in his horse cart, they slipped; injuries: AD: where road authority constructs, in such a way as to introduce a new source of danger which would other wise not have existed, it must take due steps to guard against that danger. I.E. with the creation of a new danger (prior conduct) legal duty arises Failure to comply with the legal duty = OMMISSION. Silva’s Fishing Corporation v Maweza (1957): The defendant was the owner of a fishing fleet, the engine of one of his boats failed and the boat drifted out to open sea for 9 days during which the defendant failed to take steps to rescue it and it was eventually lost in a storm. The plaintiff’s husband drowned and she instituted action against the defendant. Majority: 3/5: prior conduct – present since the defendant created a potentially dangerous situation by providing the boat and consenting to the fishing run from which he would benefit financially. Therefore a legal duty rests on the defendant to take steps to rescue the crew. Minority: STEYN JA – was critical of the Halliwell approach ….. That liability for omissions was based on prior conduct ONLY. Regal v African Superslate (1963): The applicant applied for an interdict to compel the respondent, his neighbor who lived further up the river, to take steps to prevent slate being washed down by the river onto the applicants land. The court decided that prior conduct WASN’T AN INDESPENSIBLE REQUIREMENT FOR A LEGAL DUTY TO ACT. It was suggested that you look to see if the loss could be prevented by reasonable measures. In this case the steps that would have been necessary to prevent the washing down of the slate – building of a dam wall – not in relation therefore there was no duty on the respondent to prevent the loss. Problem: in this case it was thought that the rejection of prior conduct was limited to interdicts