Law of delict Comprehensive Summary

DELICT NOTES


A) INTRODUCTORY TOPICS

Definition:
 A delict is a civil wrong doing aimed at claming damages and falls under Private Law.
 A delict is an unlawful, noteworthy act or omission (intentional fault or negligence)
causing damage to persons or property or injury to personality
 A delict can be caused by a positive act or by failing to act.

Liability for breach of Contract:
 In a contract, there is prior voluntary consent (i.e. you chose that you want to
be bound
 In delict, you don’t voluntarily give consent.
 OVERLAP: a surgeon leaving a swab in the patient = breach of contract and
delictual liability.
Liability based on Unjustified Enrichment:
 To prove unjustified enrichment, the other party must have been enriched

2. Principle Basis for Delictual Liability
2.1: The Actio injuriarum and the Legis Aquiliae

Delictual Claims

Actio Injuriarum Actio Legis Aquiliae
 NON-PATRIMONIAL DAMAGES  PATRIMONIAL DAMAGES
 Sentimental Damages  Any kind of financial loss, e.g.
 Damages to the corpus (body), property, money, etc
dignitas (dignity) or repatas  There is a either intentional or
(reputation) negligent conduct.
 Action when someone infringes your
personality rights.
 They must have acted intentional
conduct.
 Everyone has 3 personality rights:
1. Dignity – right to your own self
worth
2. Bodily Integrity – right to you
personal space
3. Reputation – what other people
think of you

Action for Pain & Suffering
 NON-PATRIMONIAL DAMAGES
 You only have a right to bodily integrity




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, DELICT NOTES


2.2.: Other Delictual Actions

 Strict Liability:
o You can be charged under strict liability even if you acted without negligence and
as a reasonable person would have.
o Mostly done by way of legislation
 Actio de Pauperie
o When you own a domestic animal and it acts out of character and harms someone.
o You are liable even if you took ALL the necessary precautions.
 Actio de Pastu
o This action is against the owner of an animal who eats your plants
 Actio de Feris
o This action is for someone who brings a wild animal into a public place and the
animal causes harm to someone.
 Common Law Actions Regarding Neighbours
o Effusis vel delictus – action if you throw or pour something at someone
o Suspendi vel positi – if suspended or positioned objects fall on someone, you are
liable
o Nuisance – you are liable if you are a nuisance.

2.3.: Other Forms of Delictual Liability

 Vicarious Liability
 You are held liable for the actions of others, even if you are not responsible. (This
does not AUTOMATICALLY apply to children)
 Usually arises because of a specific relationship between the defendant and the
person responsible such as:
1) Employment:
o If an employee commits a delict, the employer can be held liable
because the employee is a representative of the employer.
o The employee must be on duty – not on a frolic of his own
2) Principle Agent:
o If someone commits a delict while they are acting as your agent, then
you are liable
3) Owner of the Car v Driver of the Car:
o Depends on whether the driver gave permission
o Similar to strict liability
o Usually arises because of a specific relationship between the defendant
and the person responsible such as:
 Test: see where the discretion is so great in time and space that he can reasonably
be said to be doing his function.




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, DELICT NOTES



B) AQUILIAN LIABILITY

1. General

 Elements of Aquilian Liability
 All the following elements must be met for there to be an Aquilian action:
1. Conduct:
o Acting or Failing to Act in a specific way.
o Conduct on the part of the defendant.
2. Fault:
o In the form of either Intention or Negligence.
3. Wrongfulness:
o If the conduct was not legally permissible
4. Patrimonial Loss or Harm:
o In the form of financial loss
5. Causation:
o E.g.: break lights mot working in a head-on collision
o Two Aspects
1. Factual Causation
o Whether you were factually the cause of the harm
2. Legal Causation
o Even if you could have prevented something, you won’t be held liable.
o Limits liability
 If all these elements are not proven, then the defendant will win. Even if the facts
are proven the defendant can state a defence.

 Defences
1. Automatism:
o Involuntary conduct
2. Diminished Capacity:
o Not at fault
3. Contributory Negligence:
o The defendant was not only at fault (Seatbelt and Crash helmet cases)
o Plaintiff’s claim will therefore be decreased
4. Justification of Wrongfulness:
o Self-defence
o Necessity (an ambulance speeding)
o Provocation
o Consent (an operation)
o Statutory Authority (official capacity – a policeman arresting someone)

 Onus of Proof
o The onus is generally on the defendant; except in the case of AUTOMATISM.



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, DELICT NOTES




2. Focus on the elements of Aquilian Liability
2.1.: Conduct:

 General:
o In order to constitute a delict, one person must have caused damage or harm to
another person by means of an act or conduct.
o Conduct constitutes the damage-causing event in the case of a delict.
o A Juristic person can also be held liable in a delict - the organs (directors)
 Nature and Consequences of Conduct
o Conduct may be defined as a voluntary human act or omission.
o For delictual liability, conduct displays the following:
1. Only the act of a human is accepted as conduct. (for animals see 2.2)
2. Human action constitutes conduct only if it is performed voluntarily. This
does not mean that the person must have willed or desired his conduct. It also
does not mean that a person’s conduct should be rational or explicable
(conduct by a baby or a mentally ill person is usually voluntary). When a
defendant claims that he did not act voluntarily, he is raising the defence of
AUTOMATISM.
3. Conduct may be in the form of either a positive act (active conduct - a
commissio) or an omission (omission)
 Nature and Consequences of Conduct
o The act of the wrongdoer must be voluntary for delictual liability.
 LEGAL QUESTION: could the wrongdoer have acted differently if there
was a policeman present?
o A defendant may argue that the conduct complained of did not satisfy the
requirements for voluntary conduct, i.o.w. he says that he acted mechanically
(Automatism)
o The following conditions may cause a person to act involuntarily: sleep, fainting,
epileptic fit, serious intoxication, a blackout, reflex movements, mental disease,
etc
o The defence of Automatism will NOT succeed if the defendant intentionally
created the situation in which he acted involuntarily This is known as actio
libera in causa. (this includes drinking, knowing that you will be driving later
and sleeping next to a new-born baby and foreseeing the possibility that you will
smother her)
 Commission (commissio) and Omission (omissio)
o COMMISSION: you contributed to the to the danger (+ve act)
o OMISSION: you didn’t contribute to the act, but you could have stopped it.
o An omission is more restricted than liability for a positive act (commission)
o For policy reasons the law is hesitant in finding that there was a legal duty
(where the law places a duty on someone to act positively) on someone to act
positively and so prevent damage to another. (neighbour smells smoke and does
nothing or the police failing to arrest someone and the criminal then goes and
kills someone)


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