Delict 2025 study material semester 2
Delict questions 2025
Question (doctrine of sudden emergency)
As John drives into a filling station, he notices that some spilt petrol has caught fire. He stops,
gets out of his car, and runs to the car-wash bay. He grabs hold of a bucket full of water, hurries
over to the fire, and empties the bucket on it. Because burning petrol can float on water, John’s
action does not extinguish the fire, but rather displaces it to a spot directly under Tom’s car.
Tom has a powder-based fire extinguisher in the boot of his car. He gets it out and manages to
extinguish the fire. However, his car is extensively damaged already. Tom wishes to institute a
delictual claim against John.
Discuss only, but in detail, whether there was fault on John’s part.
According to Neethling, Potgieter), fault refers to blameworthy conduct which the law attributes
to a person because they failed to act as a reasonable person would have acted under similar
circumstances. Fault may exist in the form of intention (dolus) or negligence (culpa). Since
there is no evidence that John intended to cause harm to Tom’s car, the relevant enquiry here is
whether John’s conduct was negligent.
Negligence is determined objectively, using the well-known reasonable person test formulated
in the case of Kruger v Coetzee 1966 (2) SA 428 (A). In this case, Holmes JA stated that a
person is negligent if (a) a reasonable person in the same circumstances would have foreseen
the reasonable possibility of his conduct causing harm to another, (b) would have taken
reasonable steps to guard against such an occurrence, and (c) the defendant failed to take
those steps. Thus, negligence involves a twofold enquiry: firstly, whether harm was reasonably
foreseeable, and secondly, whether the defendant failed to take reasonable precautions to
prevent it.
The law further recognises that conduct which might otherwise be considered negligent may not
be so regarded if it occurs in an emergency situation. When a person is confronted with an
unexpected danger and acts impulsively to avert harm, the standard of care required is not that
of detached calm reasoning, but rather that of a reasonable person in the same
circumstances of emergency. As the Appellate Division observed in Silva’s Fishing
Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A), the law allows for human imperfection in
moments of crisis. Similarly, in Wells v Shield Insurance Co Ltd 1965 (2) SA 865 (C), it was held
that a rescuer who acts quickly and in good faith to prevent harm should not be lightly found
negligent merely because his actions were unsuccessful. Therefore, in determining negligence,
the court must take into account the urgency, stress and danger of the situation confronting
the defendant. The question is not whether the defendant’s actions were the best possible, but
whether they were reasonable in the circumstances.
When John arrived at the filling station, he saw that some spilt petrol had caught fire.
Recognising the danger to persons and property, he instinctively acted to help. He grabbed the
nearest bucket of water and poured it onto the flames. Unfortunately, burning petrol floats on
water, and his action inadvertently caused the fire to spread beneath Tom’s car, which was
subsequently damaged. Applying the test for negligence, the first question is whether a
reasonable person in John’s position would have foreseen the possibility that using water on a
,petrol fire might spread the flames and cause harm. The reasonable person is not a person of
exceptional skill or technical knowledge, but an average, prudent individual. It is unlikely that the
ordinary person would appreciate the chemical reaction between burning petrol and water.
Unless John had specific training or expertise in fire safety, it cannot be said that he should
have foreseen this consequence. The harm was therefore not reasonably foreseeable to a
person of average knowledge and experience. The second part of the test requires asking
whether a reasonable person in the same circumstances would have taken different or more
effective steps to prevent harm. Considering the emergency nature of the situation, there was
no time for careful deliberation. John’s immediate instinct to act was motivated by concern for
safety and to prevent the spread of the fire. In such circumstances, it cannot be expected that
he pause to analyse the chemical properties of petrol or to search for a more suitable
extinguisher. The law does not require perfection, only reasonableness. As Neethling and
Potgieter emphasise, a person who acts “in a moment of emergency or to rescue others” will not
be judged with the same strictness as one who acts under calm conditions.
Furthermore, John’s conduct cannot be said to display carelessness or reckless disregard for
others. On the contrary, it was an act of public-spirited assistance, undertaken in good faith to
avert a greater danger. The fact that his action unintentionally worsened the situation does not
mean he was negligent. The law does not punish well-intentioned mistakes made under
pressure, provided they were reasonable in context. In light of the principles discussed, it is
submitted that John’s conduct was not negligent and therefore not blameworthy in the sense
required by the law of delict. Applying the Kruger v Coetzee test, a reasonable person in John’s
position would not have foreseen the risk of spreading the fire by using water, nor can it be said
that he failed to take reasonable precautions under the circumstances. The emergency situation
required immediate action, and John’s spontaneous response was both understandable and
reasonable. Accordingly, there was no fault on John’s part. He acted as any reasonable person
might have done in a sudden and dangerous situation, and his well-intentioned but unfortunate
act does not attract delictual liability
Question
John works at the control tower of the O.R. Tambo Airport. His responsibility is to regulate the
movements of the aeroplanes landing and taking off. Due to a sudden sharp drop in John’s
blood pressure, he loses consciousness for five minutes. During this period of unconsciousness,
two aeroplanes collide because John did not give the pilots the correct instructions. Did John act
for the purpose of the law of delict? Would it make a difference to your answer if John has
already been under medical treatment for a diagnosed condition of low blood pressure, but
failed to take his prescribed blood pressure medication when he should have done so earlier
that morning?
Discuss in detail with reference to authority.
The question is whether John’s loss of consciousness and consequent failure to prevent a
collision constitute “conduct” for delictual purposes. Conduct is the first element of delict.
Without voluntary conduct, there can be no delictual liability. According to Van der Walt &
Midgley (Law of Delict, 8th ed, p. 28–30):
, “Human action only constitutes conduct if it is performed voluntarily, i.e., if it is susceptible to
control by the will of the person involved.” An act is voluntary when it is subject to the control of
a person’s will and involuntary when it occurs in a state of unconsciousness or automatism
such as during an epileptic fit, blackout, or fainting episode. Thus, if a person acts without
consciousness, their bodily movements are not regarded as conduct in law.
The defence of automatism
This is known as the defence of automatism, defined as a state in which a person’s bodily
movements occur without conscious control. Neethling and Potgieter: “Where a defendant
claims that for some reason he did not act voluntarily, he relies on the defence of automatism
that he acted mechanically.” If automatism is established, the conduct element fails, and the
delictual inquiry ends there (R v Schoonwinkel 1953 3 SA 136 (C); Molefe v Mahaeng 1999 1
SA 562 (SCA)). ohn suffers a sudden, unforeseen drop in blood pressure, loses consciousness
for five minutes, and during this period fails to direct two aircraft, resulting in a collision.
His omission (failure to act) occurred while unconscious.
According to Van der Walt & Midgley and the case law, an omission is only voluntary if
the person was capable of acting at the time. Here, John lacked the capacity to
control his actions he could not give instructions or communicate.
John’s unconsciousness means there was no voluntary conduct. His omission was
involuntary; therefore, he did not act for the purposes of delict. This aligns with S v Trickett
1973 3 SA 526 (T) and Molefe v Mahaeng, where courts held that a sudden blackout negates
voluntariness if it was not reasonably foreseeable.
If John knew of his low blood pressure condition, was under treatment, and negligently failed
to take his medication, the analysis changes. The defence of automatism will not protect a
person whose own prior voluntary conduct led to the involuntary state. Neethling and
Potgieter emphasized that “The defence of automatism will not succeed where the defendant
intentionally or negligently created the situation in which he acts involuntarily… The defendant
will be held liable for his culpable conduct in creating the state of automatism.” This is known as
the doctrine of actio libera in causa — liability based on prior voluntary conduct that
foreseeably led to the later harm (R v Schoonwinkel, The Government v Marine and Trade
Insurance Co Ltd 1973 3 SA 797 (D)). f John knew of his blood pressure problem and the risk
of losing consciousness, yet failed to take his prescribed medication before starting work at the
control tower (a position demanding constant alertness) a reasonable person in his position
would have foreseen the risk of harm and taken precautions. His prior voluntary omission
(failure to medicate) thus becomes the relevant voluntary conduct for delictual purposes.
Scenario Voluntary conduct? Delictual consequence
Sudden, unforeseeable No – involuntary John did not act for purposes of
blackout conduct (automatism). delict → no liability.
Failure to take prescribed Yes – earlier voluntary John’s earlier failure is voluntary
medication (foreseeable omission (negligent). conduct → possible delictual
blackout) liability.
Delict questions 2025
Question (doctrine of sudden emergency)
As John drives into a filling station, he notices that some spilt petrol has caught fire. He stops,
gets out of his car, and runs to the car-wash bay. He grabs hold of a bucket full of water, hurries
over to the fire, and empties the bucket on it. Because burning petrol can float on water, John’s
action does not extinguish the fire, but rather displaces it to a spot directly under Tom’s car.
Tom has a powder-based fire extinguisher in the boot of his car. He gets it out and manages to
extinguish the fire. However, his car is extensively damaged already. Tom wishes to institute a
delictual claim against John.
Discuss only, but in detail, whether there was fault on John’s part.
According to Neethling, Potgieter), fault refers to blameworthy conduct which the law attributes
to a person because they failed to act as a reasonable person would have acted under similar
circumstances. Fault may exist in the form of intention (dolus) or negligence (culpa). Since
there is no evidence that John intended to cause harm to Tom’s car, the relevant enquiry here is
whether John’s conduct was negligent.
Negligence is determined objectively, using the well-known reasonable person test formulated
in the case of Kruger v Coetzee 1966 (2) SA 428 (A). In this case, Holmes JA stated that a
person is negligent if (a) a reasonable person in the same circumstances would have foreseen
the reasonable possibility of his conduct causing harm to another, (b) would have taken
reasonable steps to guard against such an occurrence, and (c) the defendant failed to take
those steps. Thus, negligence involves a twofold enquiry: firstly, whether harm was reasonably
foreseeable, and secondly, whether the defendant failed to take reasonable precautions to
prevent it.
The law further recognises that conduct which might otherwise be considered negligent may not
be so regarded if it occurs in an emergency situation. When a person is confronted with an
unexpected danger and acts impulsively to avert harm, the standard of care required is not that
of detached calm reasoning, but rather that of a reasonable person in the same
circumstances of emergency. As the Appellate Division observed in Silva’s Fishing
Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A), the law allows for human imperfection in
moments of crisis. Similarly, in Wells v Shield Insurance Co Ltd 1965 (2) SA 865 (C), it was held
that a rescuer who acts quickly and in good faith to prevent harm should not be lightly found
negligent merely because his actions were unsuccessful. Therefore, in determining negligence,
the court must take into account the urgency, stress and danger of the situation confronting
the defendant. The question is not whether the defendant’s actions were the best possible, but
whether they were reasonable in the circumstances.
When John arrived at the filling station, he saw that some spilt petrol had caught fire.
Recognising the danger to persons and property, he instinctively acted to help. He grabbed the
nearest bucket of water and poured it onto the flames. Unfortunately, burning petrol floats on
water, and his action inadvertently caused the fire to spread beneath Tom’s car, which was
subsequently damaged. Applying the test for negligence, the first question is whether a
reasonable person in John’s position would have foreseen the possibility that using water on a
,petrol fire might spread the flames and cause harm. The reasonable person is not a person of
exceptional skill or technical knowledge, but an average, prudent individual. It is unlikely that the
ordinary person would appreciate the chemical reaction between burning petrol and water.
Unless John had specific training or expertise in fire safety, it cannot be said that he should
have foreseen this consequence. The harm was therefore not reasonably foreseeable to a
person of average knowledge and experience. The second part of the test requires asking
whether a reasonable person in the same circumstances would have taken different or more
effective steps to prevent harm. Considering the emergency nature of the situation, there was
no time for careful deliberation. John’s immediate instinct to act was motivated by concern for
safety and to prevent the spread of the fire. In such circumstances, it cannot be expected that
he pause to analyse the chemical properties of petrol or to search for a more suitable
extinguisher. The law does not require perfection, only reasonableness. As Neethling and
Potgieter emphasise, a person who acts “in a moment of emergency or to rescue others” will not
be judged with the same strictness as one who acts under calm conditions.
Furthermore, John’s conduct cannot be said to display carelessness or reckless disregard for
others. On the contrary, it was an act of public-spirited assistance, undertaken in good faith to
avert a greater danger. The fact that his action unintentionally worsened the situation does not
mean he was negligent. The law does not punish well-intentioned mistakes made under
pressure, provided they were reasonable in context. In light of the principles discussed, it is
submitted that John’s conduct was not negligent and therefore not blameworthy in the sense
required by the law of delict. Applying the Kruger v Coetzee test, a reasonable person in John’s
position would not have foreseen the risk of spreading the fire by using water, nor can it be said
that he failed to take reasonable precautions under the circumstances. The emergency situation
required immediate action, and John’s spontaneous response was both understandable and
reasonable. Accordingly, there was no fault on John’s part. He acted as any reasonable person
might have done in a sudden and dangerous situation, and his well-intentioned but unfortunate
act does not attract delictual liability
Question
John works at the control tower of the O.R. Tambo Airport. His responsibility is to regulate the
movements of the aeroplanes landing and taking off. Due to a sudden sharp drop in John’s
blood pressure, he loses consciousness for five minutes. During this period of unconsciousness,
two aeroplanes collide because John did not give the pilots the correct instructions. Did John act
for the purpose of the law of delict? Would it make a difference to your answer if John has
already been under medical treatment for a diagnosed condition of low blood pressure, but
failed to take his prescribed blood pressure medication when he should have done so earlier
that morning?
Discuss in detail with reference to authority.
The question is whether John’s loss of consciousness and consequent failure to prevent a
collision constitute “conduct” for delictual purposes. Conduct is the first element of delict.
Without voluntary conduct, there can be no delictual liability. According to Van der Walt &
Midgley (Law of Delict, 8th ed, p. 28–30):
, “Human action only constitutes conduct if it is performed voluntarily, i.e., if it is susceptible to
control by the will of the person involved.” An act is voluntary when it is subject to the control of
a person’s will and involuntary when it occurs in a state of unconsciousness or automatism
such as during an epileptic fit, blackout, or fainting episode. Thus, if a person acts without
consciousness, their bodily movements are not regarded as conduct in law.
The defence of automatism
This is known as the defence of automatism, defined as a state in which a person’s bodily
movements occur without conscious control. Neethling and Potgieter: “Where a defendant
claims that for some reason he did not act voluntarily, he relies on the defence of automatism
that he acted mechanically.” If automatism is established, the conduct element fails, and the
delictual inquiry ends there (R v Schoonwinkel 1953 3 SA 136 (C); Molefe v Mahaeng 1999 1
SA 562 (SCA)). ohn suffers a sudden, unforeseen drop in blood pressure, loses consciousness
for five minutes, and during this period fails to direct two aircraft, resulting in a collision.
His omission (failure to act) occurred while unconscious.
According to Van der Walt & Midgley and the case law, an omission is only voluntary if
the person was capable of acting at the time. Here, John lacked the capacity to
control his actions he could not give instructions or communicate.
John’s unconsciousness means there was no voluntary conduct. His omission was
involuntary; therefore, he did not act for the purposes of delict. This aligns with S v Trickett
1973 3 SA 526 (T) and Molefe v Mahaeng, where courts held that a sudden blackout negates
voluntariness if it was not reasonably foreseeable.
If John knew of his low blood pressure condition, was under treatment, and negligently failed
to take his medication, the analysis changes. The defence of automatism will not protect a
person whose own prior voluntary conduct led to the involuntary state. Neethling and
Potgieter emphasized that “The defence of automatism will not succeed where the defendant
intentionally or negligently created the situation in which he acts involuntarily… The defendant
will be held liable for his culpable conduct in creating the state of automatism.” This is known as
the doctrine of actio libera in causa — liability based on prior voluntary conduct that
foreseeably led to the later harm (R v Schoonwinkel, The Government v Marine and Trade
Insurance Co Ltd 1973 3 SA 797 (D)). f John knew of his blood pressure problem and the risk
of losing consciousness, yet failed to take his prescribed medication before starting work at the
control tower (a position demanding constant alertness) a reasonable person in his position
would have foreseen the risk of harm and taken precautions. His prior voluntary omission
(failure to medicate) thus becomes the relevant voluntary conduct for delictual purposes.
Scenario Voluntary conduct? Delictual consequence
Sudden, unforeseeable No – involuntary John did not act for purposes of
blackout conduct (automatism). delict → no liability.
Failure to take prescribed Yes – earlier voluntary John’s earlier failure is voluntary
medication (foreseeable omission (negligent). conduct → possible delictual
blackout) liability.
