DLR 320 - Law of Damages - M. Du Buisson
DLR 320 - Law of Damages - M. Du Buisson
DLR 320 - Law of Damages - M. Du Buisson
du Buisson
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DLR 320 Damages Notes M. du Buisson
General Causiastic
● Constitutional Provisions
Dendy Case
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● The plaintiff brought a claim for satisfaction against the defendant. The defendant argued
that he was entitled to satisfaction because the defendant had infringed his Section 10 right
to dignity, under the Constitution of the Republic of South Africa (the "Constitution").
● Satisfaction is a common law remedy, catered for by the law of delict, enforced by the actio
iniuriarum. It serves the purpose of ameliorating the harm done to a person's personality
rights, such as dignitas. The harm, complained of in this instance, however, was the
infringement of a constitutional right. Typically, the infringement of a constitutional right
was not understood as "harm" for purposes of the common-law delict. Rather, typically, the
infringement of a constitutional right is understood to be protected by constitutional
remedies
● Accordingly, owing to the categorical disjuncture between infringement and remedy, the
defendant raised an exception to the plaintiff's particulars of claim, excepting to the absence
of a cause of action. It was alleged that because the common-law delict did not recognise
an infringement of a constitutional right as an actionable harm that the plaintiff, therefore,
had no cause of action.
● To circumvent the dilemma, it was argued by the plaintiff that the common-law delict,
particularly iniuria, was inconsistent with the Constitution. The alleged inconsistency was
argued to arise from the common-law delict not recognising the infringement of a right in
Chapter 2, Bill of Rights, as a violation of the common-law dignitas and accordingly, an
iniuria. In effect, the argument was that the common law should be developed so as to lend
the plaintiff a cause of action.
● The essential question with which the court was faced was: should the common law of
iniuria be developed so as to per se/necessarily include infringements of the BOR rights,
e.g. S 10 right to dignity, on the basis of recognising it as an infringement of the
common-law dignitas.
● The court held that it was unnecessary - it is inappropriate to develop iniuria to per
se/necessarily include infringements of the BOR because whether or not anything at all
constitutes an iniuria will depend upon whether or not it meets the two-leg test of inuria. It
was held that the test was constitutional because it was sufficiently flexible to
accommodate the development of new iniuria which were in line with the spirit, purport,
and objects of the Bill of Rights.
● Even though there may be overlaps between the law of delict and the constitutional rights
violations, the elements of a delict MUST still be proven.
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● Concrete approach
○ (mainly used in practice)
○ Actual patrimonial position before the wrongful act
compared to the actual patrimonial position after the
wrongful act = i.e. RECEIPTS
○ Should not be used in instances where there has been a
hypothetical loss
● Sum-formula approach
○ Is the hypothetical matrimonial sum (-) subtract the actual
patrimonial sum
○ Deals mostly with anticipated or hypothetical calculations
not based on accurate concrete numbers
○ Recognised by SCA in Transnet case
■ Side note: Do animals contribute to a person's patrimony ? = No
● Time of assessment ?
○ Date and time of commission of the delict is the decisive moment
■ Earliest date on which all the elements of a delict are present
○ Regarding damage, this doesn't mean that the full extent of damage should have
occurred
○ If all the other requirements of a delict are present, the date on which the date on
which the first damage is manifested is used
■ General Accident Insurance v Summers = Loss of support and earning
capacity expected after the date of the trial must be assessed at a date of trial
and not date of the delict
● Prospective patrimonial damage (Lucrum cessans)
● Speculative process through which loss is quantified = it raises theoretical and
practical issues
○ Also means the partial frustration of an expectation that a patrimonial assets
will accrue or the creation of an expectation of debt
● Damage that has not yet been suffered at the time of assessment
● Prospective damage is 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 resulting from an earlier damage causing event
● Once and For All Rule = a plaintiff who claims damages on a specific cause of
action has only one chance to claim for all damages already suffered and for any
prospective loss
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○ Kicks in once a delict has been established and applies to compensation and
satisfaction
○ Must claim all damage (pat, non-pat, pain and suffering) - already sustained
and expected in future - as a result of single cause of action
○ Prescription commences when cause of action accrues and debt iro payment
of damages is claimable
■ Prescription generally concluded after period of 3 years = Claim
should be instituted within this period
○ Elements of delict are present (ie some damage must has occurred)
■ P aware/should reasonably be aware of debtor's identity and facts of
cause of action
○ P who has sued successfully/unsuccessfully for part of damage may not sue
for another part if both claims based on single cause of action (may not sue
twice for the same action)
■ Practical advice from lecturer: The moment you meet with your
client that you must know the extent of the harm and must inform
them that you will and must account for all prospective claims for
this harm
● Types or forms of prospective loss
○ Future expenses on account of damage causing event
■ Medication/ treatment and rehabilitation
○ Loss of income or future earning capacity
■ Earning capacity due to delict that caused a disability
○ Loss of business and professional profit
■ Reduced profit = cow example
○ Loss of prospective support
■ Death of a breadwinner
○ Loss of chance to gain benefit
■ Race horse example
● Recovery requirements
○ A claim cannot be instituted merely to recover damages for prospective loss,
since a cause of action only exists if some damage has already been caused
■ Thus some form of damage must have already occurred
○ Damages are awarded for damage already sustained, as well as loss that is
expected to occur in future
○ Prospective damages are awarded as ancillary to accrued damages
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Examples
1. X assaulted by Y, suffers pain and suffering, humiliation and medical expenses: one cause of
action for all 3 forms of delictual action.
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2. X rides his bicycle and is injured when Y negligently runs into him. X suffers bodily injuries
and damage to bicycle: one cause of action both forms of harm
3. Y drives his car negligently, injuring X and causing damage to X's car: two causes of action
due to legislation. Damage to property (car) may be claimed from insurers whereas damages
for medical expenses, loss of income, loss of earning capacity, pain and suffering will be
instituted against RAF.
4. X and his child, Y, injured in collision with negligent Z: medical expenses already incurred
5. X and wife Y in a collision caused by negligent Z; X seriously injured and dies after 3
months, and Y injured. 3 causes of action: damage to property (car), medical costs and loss of
support due to wrongful death of a breadwinner - all claims flow from the same accident
however cause of action may rise at different times
- i.e. CoA for bodily injuries arises at time of accident while CoA for loss of support
only arises at the death of the breadwinner - cannot claim until then.
- What if X dies after 3 years? Fresh claim for loss of support? Conflict with once and
for all rules?
6. Y sprays poison on his farm and negligently causes death of X's cattle - they die at different
intervals. Prescription raised from first materialisation of damage. Not renewed with each
death.
- In negligence cases, the CoA is the unlawful act + damage. As soon as damage occurs all
consequent damage can be recovered.
7. X has recovered damages from Y, caused through Y's negligent conduct; claim finalised and
then X suffers further unforeseen complications.
- Once and for all = no further claim, despite X inability to anticipate such complications. Onus
on him to bear expense personally
8. X is unlawfully detained and assaulted by Y: Detention and assault different causes of action
The collateral source rule and compensating advantages (res inter alios acta)
Sometimes damages and compensation thereof results in a gain for the plaintiff. I.e Sebastien was
injured in an accident that was caused by a negligent Gabby, whereby she pays him out R2000 in
medical expenses. Sebsatien’s nonna feels bad for him and gives him R1000.
Question: should the R1000 he receives from his Nonna neutralise the R2000 damages he received
from his offender ?
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These considerations are taken into account when apportioning in terms of the collateral
principle
● Medical benefits or sick leave where the medical scheme or employer is contractually or
statutorily obligated to do so
● A pension paid out to an injured person if the beneficiary had a contractual or statutory
obligation o such pension, as well as a disability pension
● The amount of damages someone receives from the compensation commissioner
● Medical treatment an injured person receives free off charge in a provincial hospital
● The marriage prospects of a widow who claims for loss of support due to the death of a
breadwinner
● Savings on income tax due to lost income
● Amount which the plaintiff received from the liability insurer of the defendant and the
amount the plaintiff received from the wrongdoer himself
● A plaintiff’s possible saving on living expenses on account of his injuries
● Accelerated benefits from the estate of the deceased breadwinner
● A welfare payment received in a foreign country by virtue of the fact that the plaintiff was
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Based on the maxim res inter alios acta to disregard certain benefits that the plaintiff may
incur
- The conclusion should be that an advantage by the plaintiff be disregarded
- This principle is resolved in terms of public policy and equity
- The main takeaway from this is that a plaintiff should not allowed to recover an
excess of his actual loss
- This necessitates a balance/ weighing up interest and losses of the plaintiff and
defendant in line with community values
● Mitigation of loss
○ The principle is that the plaintiff should not incur damages for loss which is a factual
result of the defendant's conduct but is which could actually have been prevented if
the plaintiff had taken reasonable steps to do so
○ The standard of reasonableness is not very high
■ The plaintiff is obligated to take reasonable steps to limit the damage caused
by the defendants delict
■ Person who has taken reasonable steps to mitigate his loss may also recover
damages for any loss caused by such reasonable steps
■ Where the person has reduced his damages by taking reasonable steps in
mitigation, the offender is only liable to compensate for the actual loss
sustained even if person did more than the law required of him
■ Burden of proof to mitigate damages initially rests on the defendant
Quantum of damages
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Onus of proof for damages = In general the plaintiff must prove on a balance of probabilities that he
suffered damage and prove what the extent of that damage is
Non-patrimonial loss
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● Intentional infringements to personality are usually claimed through the actio iniuriarum
● It is designed to award personal satisfaction for the impairment of a personality right
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(2) Causation
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● There must be a causal connection between the harm suffered and the conduct
● Determined from the facts of the case and relevant probabilities
● Test for determining causation
○ There is factual and legal causation
■ Factual causation is determining the link between to things
■ Determining a causal nexus is a question of fact
■ Based on relevant probabilities
● Question of ‘what is probable” should not be based on mathematical
thought process
● Factual causation: did the offenders conduct materially contribute to
the harm
○ Must first prove factual causation before you can prove legal
causation
● If the answer is yes then you move to legal causation
○ Normative enquiry into weather the factual link is strong
enough
○ Usually all approaches/ theories adopt the conditio sine qua non theory
Factual Causation
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● Legal Causation
○ We use it to limit the accountability of the wrongdoer
■ You cannot hold someone accountable for endless consequences of a conduct
● punishment has to stop somewhere
○ Legal causation acts a s liability break = NB for test purposes
○ Sidenote: there are alway 2 trials = one for merits and one for sentencing
● 6 approaches to legal causation but the courts determine a flexible approach
○ Flexible
■ S v Mokgethi case
● A robber shot a paraplegic an he later died from septicemia
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○ Wilson v Brit = negligent pole struck P on head, by the had a previous brain surgery
from a stabbing
■ Once proved D acted wrongfully and negligently, their responsibility
embraces in harm flowing form a latent physical condition of the plaintiff,
however unforeseeable or abnormal
○ Smit v Abrahams = accepted the practice of the flexible approach and imputed
damages to the defendant despite the damage not being foreseeable
■ Plaintiff was a financial egg skull who’s car had been written off in an
accident
■ He did not have money to replace the car so he rented one
■ The court ruled that he was able to claim the expenditure he incurred from
renting the car, from the respondent
(3) Conduct
● In order to constitute a delict, a person must have caused damage or harm to another person
by means of an act or conduct
○ It is the damage causing event in a delict
● (a) Conduct is a voluntary human act or omission
○ It must be human and not that of an animal
■ Can use an animal as an instrument
■ Juristic persons act through organs/ human and may thus be held liable for
such acts
● I.e. permission give by boss to a staff member
● (b) It must be voluntary and susceptible to the control of the will of the person concerned
○ Control by human will = means the person in question has the mental ability to
control his muscular movements
● Must be capable of making a decision about his conduct
○ Does not mean that the person has willed or desired this result
○ It is the voluntary act that is closest to the harmful consequence that is considered
and relevant and it is thus unnecessary to consider prior voluntary acts
○ Involuntary conduct = automatism
■ Automatism
● Defence of having acted involuntarily or was rendered incapable of
controlling their movements at the time
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(4) Fault
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○ Provocation = where a person under provocation loses his temper and becomes
passionately angry, he may be said to lack accountability
■ Get so angry and cannot think clearly - blind with rage
● Contributory Fault
○ While fault refers to the defendant's conduct, contributory fault refers to the conduct
of the plaintiff
○ Primarily relevant in limiting the extent of the defendant's liability
○ Regulated by the Appointment of Damages Act
○ Not an actual division on damages award between D and P but refers more to the
reduction of damages received by the plaintiff because of his own fault (negligence)
regarding the damage suffered
○ D, who has intentionally caused harm to P, cannot raise defence of contributory
negligence on P's part (as at common law)
■ Defence of contributory intent
● Where P intentionally contributed to own loss while D merely
negligent - P forfeits claim
● Where D caused loss intentionally and P's conduct also intentional -
Act only appears to make provision for defence of contributory
negligence and not defence of contributory intent
● But: Greater Johannesburg Transitional Metropolitan Council V
ABSA Bank Ltd t/a Volkskas Bank 1997 2 SA 691 (W) - held that
defence of contributory intention could succeed where both P and D
acted with intention
○ APPORTIONMENT OF DAMAGES
■ Not possible literally to apportion damages - P receives a reduction in
damages
■ Criterion = reasonable person test for negligence
■ Each party's degree of negligence is determined by expressing its deviation
from the standard of the reasonable person as a percentage
■ Act applies iro damage partly caused by fault of P and partly by fault of D
■ Does not apply to strict liability (liability without fault)
■ Comparison of respective degrees of negligence - expressed as deviation
from standard of reasonable person as percentage - two percentages
compared to allocate responsibility iro damage
■ Cases: South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A)
● Basic principles for the apportionment of damages
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child's behalf, the alleged personal liability of the parent arising from the
latter’s contributory negligence
● Fault in respect of damage or damage causing event
○ Q: What if you are not responsible for the damage causing event, but your negligence
increased your damage
■ Not wearing a seatbelt in car accident
■ Bowkers Park v SAR and H = “the section leaves no doubt that contributory
negligence relates to fault with regard to damage and not fault with regard to
the damage-causing event”
○ Contributory negligence of the plaintiff is only relevant insofar as it has led to an
increase in the damage
■ Section 13 = "For the purpose of this section ‘fault’ includes any act or
omission which would, but for the provision of this section, have given rise to
the defence of contributory negligence."
■ The Act erroneously construes fault as an act or omission.
● Fault is generally the legal blameworthiness of a person for their
wrongful conduct.
■ Apportionment Act does not apply to contractual breach
● Thoroughbred Breeders’ Association of South Africa v Price
Waterhouse
○ P sued his auditor for breach of contract
○ His complaint was that, during the routine annual audit, the
auditor failed to discover that the plaintiff’s financial director
was systematically stealing from him – auditor’s defence was
inter alia that the P was himself negligent in his control of the
financial director and that, due to his contributory
negligence, his claim was subject to reduction in terms of the
Apportionment of Damages Act
○ The essence of the court’s decision was that the Act was
historically not intended to apply to claims for breach of
contract, but only to amend the law of delict
○ P’s negligent conduct AFTER the harmful event causing
damage is not the subject of apportionment ito
Apportionment of Damages Act rather a matter of legal
causation
○ Focus of Act for purposes of contributory negligence is on
pre-delictual negligence.
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● Moral and social pressures may induce a person to expose himself to a risk in an effort to
rescue another from a danger created by the Ds negligent conduct
● This is sufficient to negate voluntary assumption of risk
● Where the danger is so extreme as to be out of proportion to the value of the interest
protected, the rescue operation is unreasonable and may constitute contributory intent or
negligence on the part of the rescuer
● Forms of liability without fault
○ Generally sued for intentionally causing harm or not paying attention
○ Fault theory: cannot be delict without fault
○ Liability without fault?
■ Industrial revolution hugely increased exposure of individuals to risk of harm
[eg self driving cars]
■ Growing need for protection lead to the development of liability without
fault/risk/absolute/strict liability
○ Fairness considerations
■ Creation of risk
■ Advantages risk creator enjoys from products (profit)
■ D exercises control over enterprise
■ transfer of risk to insurer
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○ (2) Force Majeure (act of God) and fault on part of prejudiced person
generally recognised as defences
○ (3) Strict liability normally imposed by statute or case law for activities
creating extraordinary increase in risk of harm to community
○ (4) Statutory strict liability – extent of liability normally curtailed by fixing
maximum amounts of compensation [eg trapped miner]
○ (5) No fault liability mostly restricted to damage to life, limb and property –
therefore does not include
● Animals
○ (1) Actio de pauperie - injury by domestic animal acting contrary to its own
nature
○ (2) Actio de pastu - damage caused by animal acting in accordance with its
nature
○ (3) Actio de feris - damage caused by wild animals
Vicarious Liability
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○ Owner liable where he allows someone else (who is not his employee) to drive his car
and the driver negligently causes an accident,
○ Accident caused negligently
■ (1) Owner must request driver to drive or supervise driving
■ (2) Vehicle must be driven in interest of owner (patrimonial and social)
■ (3) Owner must retain right/power of control over manner in which vehicle is
driven
● (4) State – public school
○ State exclusively liable for damage or loss caused by delict (eg, by teachers or
learners) associated with an educational activity of a public school.
○ Statutory vicarious liability created by South African Schools Act s 60(1):
■ State will be “liable for any damage or loss caused as a result of any act or
omission in connection with any educational activity conducted by a public
school and for which such public school would have been liable but for the
provisions of this section”
● CPA
○ Previously had to prove all elements of delict to sue for harm from product
○ CPA changed this position
■ Manufacturer of goods held liable for harm caused to consumers by unsafe or
defective goods, irrespective of presence or absence of negligence – strict
liability
■ Don’t need to prove someone at the factory made a mistake
■ The fact the product was on the shelf, you consumed it and your XP harm
entitles you.
● Common law principles changed by statute because of policy
considerations, fairness considerations and development of the law
● EXAMPLES
○ (1) Pusha P is employed by Daytona as a driver. Pusha transports goods between
Pretoria and Johannesburg. One day, on his way to deliver a consignment to a
supplier in Johannesburg, he decides to take a detour to Kempton Park to visit his
girlfriend Donda. Because of his excitement to see bae, he drives at an excessive
speed while still texting Donda. Pusha P collides with Adonis. Adonis’ car is a
write-off. Who is liable for the damage?
○ (2) Depay is the owner of two German Sheppard's. Depay walks the dogs on a daily
basis. One day, Frenkie walks past and throws a stone at the dogs. One of the dogs
jumps onto Frenkie, causing him to fall backwards and twist his ankle. Frenkies’
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Examples
After suffering a traumatising break up, Kanye East decided to check himself into a mental
institution. One morning, while medicated, he takes one of the vehicles from Weskoppies
Psychiatric Hospital and drives into town.
At the same time, Skete Davidson (aged 17) is walking his younger sister, Kimberly (7) to school.
The two of them walked alongside the road at a leisurely pace when the motor vehicle driven by
Kanye East came speeding down the road. Kanye East cuts the corner and drives into Skete and
Kim, seriously injuring them.
Question 1
After being bumped by Kanye East, Kimberly picks up a few stones and starts throwing them
towards Kanye. While doing so, Kim also damages the vehicle by breaking the windows and
denting the doors. Is she at fault?
Answer
Kim is 7, and a person under this age in culpa in capax - this is an rebuttable presumption that she
lacks accountability. Whether she is at fault or not will have to be investigated further, but in terms of
accountability there is a rebuttable presumption that she is not at fault.
Question 2
Just before Kanye bumped into them, Skete Davidson was busy on his phone, engaged on the
latest twitter thread for #MenAreTrash. While laughing at one of the memes, he fails to pay
attention to the road and doesn't check both sides before crossing. Is he at fault for any damage
suffered to the vehicle driven by Kanye?
Accountability is the basis for fault. Skete is 17 and for purposes of the law he is presumed to be
culpa capax. If he wishes to prove that he is culpa in capax, he will need to prove it in court and until
such time that happens he is presumed to be accountable.
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Question 3
Kanye East, before his traumatic break up, was regarded as a genius. But since the trauma, he
has been suffering from a mental illness which was diagnosed at Weskoppies. On the day he
stole the hospital vehicle, his nurse failed to administer the correct dosage of his medication to
help him manage his mental illness. While driving the stolen vehicle, Kanye notices Skete
crossing the road while distracted. Kanye can see that a collision is inevitable but fails to stop. Is
he at fault?
Mental illness may be used to exclude accountability, which is the basis for fault. Despite not taking
the meds there is no automatic assumption that he isn't accountable. However, he foresaw the damage
and its consequences, as him not taking his meds did not exclude him from causing the accident. Thus
he cannot rely on his mental illness.
Question 4
Assume Kanye East's motivation for escaping from Weskoppies was to get back his lost lover
from her current boyfriend Bruce Brenner. While driving, Kanye remembers that Bruce used to
be an athlete and this intimidates him. He then decides to get some "liquid encouragement"
from the local tops and consumes several millilitres of a mixture of Red Bull and Jagermiester.
The alcohol begins to take effect and he feels a bit more confident. He then speeds towards the
home of Bruce Brenner to "give him a piece of his mind". It is at this stage where the collision
with Skete and Kim occurs. Is Kanye at fault ?
South Africa is a zero tolerance nation, although he was intoxicated and MAY exclude fault there - he
cannot. He chose to drink alcohol and could reasonably have foreseen the consequences of his actions.
Question 5
Bruce Brenner, who now works as a scientist since his athletic career ended, is at home on this
particular day after being suspended from work for his angry outbursts. His colleagues have
described him as "going green" during these fits of rage where he tends to "smash" things.
Bruce also happens to be the step-father of Kim and Skete and witnessed the entire collision
from his kitchen window. Bruce becomes angry as he sees this and becomes even more
infuriated once he realises it's Kanye East who was driving. He then grabs a meat hammer and
proceeds to the scene of a collision and unleashes all his fury on the vehicle driven by Kanye. Is
Bruce Brenner at fault ?
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Intent
● Refers to the reprehensible state of mind of an accountable person directing their will at a
wrongful result they cause, while conscious of the wrongfulness of this conduct
○ Elements of intent
■ Direction of will
● Direct intent (dolus directus) is where the wrongdoer actually desires
a particular consequence of their conduct (it doesn't matter whether
the result is certain or possible)
● Indirect intent (dolus indirectus) is where the wrongdoer direct
intends the consequence but at the same time acknowledges that
another consequence will inevitably occur
○ I don't intend to harm your clothing when I shoot you but I
do anyways
● Dolus eventualis = where the wrongdoer does not desire a particular
result but foresees the possibility and reconciles themselves with that
fact
● Luxuria (conscious negligence) = where the wrongdoer foresees the
possibility but does not reconcile themselves with the fact
○ Even if you can foresee, even if the reason is unreasonable to
other peoples = its like if I complement a girl on losing
weight but then she commits suicide
● Dolus determinatus = direct a will and carry it out / decides on an act
and carries it out
● Dolus indeterminatus = take a bomb in a mall to kill people but
you didn't know how many or who you’d kill
● Consciousness (knowledge of wrongfulness)
○ Intent is a technical term which refers to a willed act, which in addition is subjectively
known to be wrongful.
○ Must know (realise) or at least foresee possibility that conduct is wrongful - ie,
conduct is contrary to law or is an infringement of another's right(s)
○ Remember ignorance (generally) isn't a defence in the law
○ A mistake usually excludes intent because there is no conscious wrongful conduct
■ eg. mistakenly acting in private defence (putative defence).
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Negligence
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● Where harm was reasonably foreseeable, did the defendant take adequate and reasonable
steps to prevent the materialisation damage?
● The mere fact that foreseeable damage materialised does not necessarily mean that steps
indeed taken to prevent the damage were unreasonable
○ The degree or extent of the risk created by the defendant
○ The gravity or seriousness of the possible consequences if the risk of the harm that
materialises
○ Utility or the importance of an actors conduct (ambulance in traffic jam)
○ The burden pertaining to the cost and difficulty of eliminating risk (closing gates so
dogs do not attack strangers)
■ If you could have prevented something - would you be negligent Yes or NO?
= YES!
NB footnote 169: In Herschel v Mrupe 1954 3 SA 464 (A) 477 Schreiner JA stated: *[T]he
circumstances may be such that a reasonable man would foresee the possibility of harm but would
nevertheless consider that the slightness of the chance that the risk would turn into actual harm,
correlated with the probable lack of seriousness if it did, would require no precautionary action on
his part [and if the harm, if it happened, would probably be trivial, the reasonable man might not
guard against it even if the chances of its happening were fair or substantial." An example may be
found in Wasserman v Union Government 1934 AD 228: A swarm of bees hived in the roof of a
police station. While a policeman attempted to locate the bees, he was stung on his lip and died.
The question arose whether the defendant was negligent in not driving out the bees. The court held
that the reasonable person would not have taken steps to prevent the harm from occurring. From the
judgement it may be concluded that although it was reasonably foreseeable that someone could be
stung by a bee, death was not reasonably foreseeable; and because the reasonable person would not
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have guarded against someone merely being stung by a bee (slight harm) the defendant was not
negligent. See also De Jager v Taaf Hamman Holdings (Edms) Bk 1993 1 SA 281 (O) where it was
found that the risk of danger to the general public created by an independent subcontractor was
foreseeable, but that a reasonable person in position of first defendant would not have taken steps to
prevent such danger. See all Oosthuizen y Van Heerden Van Bush Africa Safaris 2014, 6 SA 423
(GP) 432-433 where the risk of infecting a neighbour's cattle with "snotsiekish From blue
wildebeest was very low. (See further Van Rensburg Juridiese Kousaliteit 252-253; Van der Walt
and Midgley Delict 254 ff; Fagan Aquilian Liability
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■ Road Accident Fund v Mtati 2005 (6) SA 215 = Case pertained to the father
of a child, whose wife was in a car accident during her pregnancy
○ In court a quo the RAF entered a special plea saying that the
unborn child did not retain legal subjectivity and thus could
not be completed as the fund may only be paid to ‘persons’
○ They furthered this argument and went on to plea that there
was consequently no duty of care to be extended to the child
by the driver
○ The court went on to state that the naciturus fiction need not
always be used and warned against combining the specific
elements of delict = especially wrongfulness and damage
○ Nasciturus fiction need not be expanded in the law of delict =
an ordinary delictual action is that is all that is needed in
most cases
■ Elements can be separated in time and space and
need not all happen at once
■ Lee case = demonstrates a more flexible approach to the but for test
● Court held that a strict approach to this test would result in injustice
and thus the flexible approach is required
● Facts
○ P detained in max security prison for around 5 years
○ While in prison, became ill and diagnosed with TB
○ After release, instituted action for damages
○ Said D/s servants at prison had by their conduct caused him
to become indicted with TB
○ He succeeded with his claim in the HC
○ HC decision was overturned by the SCA: factual causation
was not proved
○ CC distinguished between factual and legal causation
● Mechanical application of but for test may
lead to injustice, therefore flexibility
required
● There is no magic formula for all of the
cases - depends on facts of each case
● Factual causation in its simplest form:
weather one fact flows from another
● No need to produce policy considerations
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Part 2: Wrongfulness
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