DELICT SEM 1 SUMMARY
DELICT
WHAT IS A DELICT?
- Committed legally recognized wrong against another by intentionally or negligently
causing harm to a person or property in breach of a legally recognized non-
contractual duty and by committing wrong has caused victim to suffer loss not too
remote and owes legal duty to compensate for that loss
- Harm; conduct; fault (negligence or intent); wrongfulness (breach of legal duty not to
cause harm); loss; causation (of the harm and loss); and non-remoteness (of the loss)
NEGLIGENCE
Test
- Established in KRUGER V COETZEE
- Negligent if person in position of person who performed conduct
1. Would have foreseen the reasonable possibility of causing harm to another
2. Thus, would not have performed it
Reasonable person
- COETZEE V FOURIE
- Moderate and prudent common sense
- Not overly concerned nor anxious
1. Foreseen reasonable possibility of harm
- Contemplate in advance
- Likelihood over mere possibility (SAULS)
2. Would have reacted differently
- VAN DER WALY & SCHREINER JA
- if magnitude of risk outweighs utility of conduct (benefits) and burden of preventing
conduct, and the person still acts
- = negligent
- If burden outweighs magnitude, and person acts
- = not negligent
- P = possibility; H = seriousness; B = burden
- Negligent = P x H > B
- Not negligent = P x H < B
Harm not loss
- Harm: non-economic
- Loss: economic
- Judgement discuss harm being foreseeable, not loss
- Must minus patrimonial association, thus everyone is of same economic status and
property value
, - If considered loss, then burden could be more than P x H if person was poor, and
damages would be low
Reasonable expert
1. Practicing profession or occupation
2. Partaking in activity that requires expertise
3. Professed to have expertise to harmed person
- Can’t be applied just because they have that expertise
- Thus, can be negligent if expertise and not negligent if didn’t
- Would be punishing merely for having expertise
Abstract and relative approaches to negligence
Harm sufferer
- Relative (MKHATSWE)
- Harm needs to be negligent in relation to harm sufferer independently
- It is not sufficient that A was negligent to B and thus is liable for T’s harm as T’s harm
was not foreseeable
- Just because negligence established for one harm sufferer, does not carry to other
harm sufferer
Harm suffered
- Abstract
- Liability and negligence for initial harm is sufficient to be liable for further harm
- No need for reasonable person to foresee further harm
- RAF V RUSSEL
- GRONEWELD – supports this theory even if initial harm was intentional
- HERSCHEL – applies even in relation to property, not bodily harm
Manner in which harm occurred
- Abstract
- What could have occurred vs what occurred
- Does not have to foresee the exact cause of harm but is sufficient to have foreseen
the general manner
- Would have had same outcome of harm, doesn’t matter type of harm or how that
harm would have occurred (MASHONGWA V PRASA)
Extent of harm
- Abstract (but not much case law)
- Liable for all harm (even though one was of much lesser extent than the other)
- If abstract approach to harm suffered, then will take abstract approach to extent of
harm (BESTER)
, INTENT
Conduct where intent is sufficient and necessary
- Must be formed with intent
- If merely negligent, would be lawful
1. Incorrect decisions made during adjudicative process (TELEMATRIX)
2. Failures to comply with administrative justice in award of tender (STEENKAMP)
3. Interference with contractual relationship (LE ROUX V DAY
4. Injurious falsehood (MATTHEWS V YOUNG)
Increases likelihood of wrongfulness
- If intention rather than negligence
- Prima facie wrongful if intentional but not if negligent
- Mostly seen in misstatements causing pure economic loss
Exclusion of cost benefit reasoning
- Intentional ham does not have this mechanism
Consciousness of wrongfulness
- Lots of case aw where no consciousness but still charged with intent (STOFFBERG V
ELLIOT)
- Scholars believe it is necessary
Object of intention
- No need for intention to cause loss or subsequent loss after harm
- For bodily injury cases, must have intended bodily injury (sufficient)
- For pure economic loss, must have intended to deceive, impairing freedom and
autonomy (STANDARD BANK V COETZEE)
- Abstract approach
DELICT
WHAT IS A DELICT?
- Committed legally recognized wrong against another by intentionally or negligently
causing harm to a person or property in breach of a legally recognized non-
contractual duty and by committing wrong has caused victim to suffer loss not too
remote and owes legal duty to compensate for that loss
- Harm; conduct; fault (negligence or intent); wrongfulness (breach of legal duty not to
cause harm); loss; causation (of the harm and loss); and non-remoteness (of the loss)
NEGLIGENCE
Test
- Established in KRUGER V COETZEE
- Negligent if person in position of person who performed conduct
1. Would have foreseen the reasonable possibility of causing harm to another
2. Thus, would not have performed it
Reasonable person
- COETZEE V FOURIE
- Moderate and prudent common sense
- Not overly concerned nor anxious
1. Foreseen reasonable possibility of harm
- Contemplate in advance
- Likelihood over mere possibility (SAULS)
2. Would have reacted differently
- VAN DER WALY & SCHREINER JA
- if magnitude of risk outweighs utility of conduct (benefits) and burden of preventing
conduct, and the person still acts
- = negligent
- If burden outweighs magnitude, and person acts
- = not negligent
- P = possibility; H = seriousness; B = burden
- Negligent = P x H > B
- Not negligent = P x H < B
Harm not loss
- Harm: non-economic
- Loss: economic
- Judgement discuss harm being foreseeable, not loss
- Must minus patrimonial association, thus everyone is of same economic status and
property value
, - If considered loss, then burden could be more than P x H if person was poor, and
damages would be low
Reasonable expert
1. Practicing profession or occupation
2. Partaking in activity that requires expertise
3. Professed to have expertise to harmed person
- Can’t be applied just because they have that expertise
- Thus, can be negligent if expertise and not negligent if didn’t
- Would be punishing merely for having expertise
Abstract and relative approaches to negligence
Harm sufferer
- Relative (MKHATSWE)
- Harm needs to be negligent in relation to harm sufferer independently
- It is not sufficient that A was negligent to B and thus is liable for T’s harm as T’s harm
was not foreseeable
- Just because negligence established for one harm sufferer, does not carry to other
harm sufferer
Harm suffered
- Abstract
- Liability and negligence for initial harm is sufficient to be liable for further harm
- No need for reasonable person to foresee further harm
- RAF V RUSSEL
- GRONEWELD – supports this theory even if initial harm was intentional
- HERSCHEL – applies even in relation to property, not bodily harm
Manner in which harm occurred
- Abstract
- What could have occurred vs what occurred
- Does not have to foresee the exact cause of harm but is sufficient to have foreseen
the general manner
- Would have had same outcome of harm, doesn’t matter type of harm or how that
harm would have occurred (MASHONGWA V PRASA)
Extent of harm
- Abstract (but not much case law)
- Liable for all harm (even though one was of much lesser extent than the other)
- If abstract approach to harm suffered, then will take abstract approach to extent of
harm (BESTER)
, INTENT
Conduct where intent is sufficient and necessary
- Must be formed with intent
- If merely negligent, would be lawful
1. Incorrect decisions made during adjudicative process (TELEMATRIX)
2. Failures to comply with administrative justice in award of tender (STEENKAMP)
3. Interference with contractual relationship (LE ROUX V DAY
4. Injurious falsehood (MATTHEWS V YOUNG)
Increases likelihood of wrongfulness
- If intention rather than negligence
- Prima facie wrongful if intentional but not if negligent
- Mostly seen in misstatements causing pure economic loss
Exclusion of cost benefit reasoning
- Intentional ham does not have this mechanism
Consciousness of wrongfulness
- Lots of case aw where no consciousness but still charged with intent (STOFFBERG V
ELLIOT)
- Scholars believe it is necessary
Object of intention
- No need for intention to cause loss or subsequent loss after harm
- For bodily injury cases, must have intended bodily injury (sufficient)
- For pure economic loss, must have intended to deceive, impairing freedom and
autonomy (STANDARD BANK V COETZEE)
- Abstract approach
