Summary
Summary Law of Delict (DLR320)
- Course
- DLR 320 (DLR320)
- Institution
- University Of Pretoria (UP)
Chapter 5 summary DLR320
[Show more]
Seller
Follow
Content preview
Law of delict – determines which individual interest are recognized.- When are these interests protected
- How balance is restored.
Chapter 5 – Contributory fault
- Fault = defendant
- Cf = conduct of plaintiff
- Cf- defense that comes up when we talk about fault (mostly road
accident cases)
Both plaintiff + defendants fault
- Why cf a defense? = can be served on part of plaintiff to render
plaintiff’s claim worthless
- Plaintiff’s cf limits defendants liability.
- Cf = also called ‘ the negligence lottery’
Common law position:
- Cf used to be regulated by common law
- Fault of plaintiff precludes him from claiming damages from defendant.
- 2 people at fault = neither can claim damages, unless one was more to
blame than other.
- Cf now regulated by Apportionment of Damages Act 34/1956 (ADA).
ADA:
- S1(1)(a) = Any person suffers damage which is caused partly by his own
fault + partly by another person, claim in respect of that damage shall
not be defeated by reason of fault of the claimant, but the damages
recoverable in respect thereof shall be reduced by the court to such
extent as the court may deem just + equitable having regard to the
degree in which the claimant was at fault in relation to the damage.
- S1(1)(b) = damage ito (a) be regarded as having caused by a person’s
fault notwithstanding the fact that another person had an opportunity of
avoiding the consequences thereof + negligence failed to do so.
Created by Jalene Terblanche
Note: This document is protected under the Copyright Act
Illegal distribution of the document is not allowed
,= both parties at fault
= courts don’t decide percentages – they interpret ADA + have discretion when
determining the fault of each party.
- Apportion of damages = plaintiff receives a reduction in damages bc he
was also at fault.
- Criterion for AOD = reasonable person test for negligence (Kruger v
Coetzee case)
Objective test applies when dealing with the deviation from the
standard of care which applies to all person in the community.
Use this test to determine the casual nexus = courts must be
satisfied that the negligent acts/omission of both parties are
casually connected to the damage.
Cf + factual causation must be clearly distinguished
- ADA doesn’t apply to strict liability (liability without fault)
- ADA applies when damage is partly caused by fault of plaintiff + partly
caused by fault of defendant.
- Method of determining bearer of portion of damage:
Comparison of the respective degrees of negligence of parties
involved.
Each party’s degree of negligence = determined by expressing its
deviation from the standard of the reasonable person as %
The 2 %’s are compared iot allocate responsibility of damage.
- AOD calculation = Jones v Santam case
P claimed obo 9-year old daughter for injuries of being knocked
down by a car. Child ran into oncoming traffic to cross road.
Motorist = negligent bc special care when driving close to children.
Child = contributory negligent bc ito the objective test, child did
not meet standard of care required od reasonable person.
Child = culpae capax (capable of their actions)
Carefulness of conduct of each party must be measured
separately against the standard of the reasonable person.
Plaintiff couldn’t prevent accident
His negligence was ‘different’ from that of wrongdoer.
- Example: ratio 70:80 = 7:8 = (7+8=15)
Created by Jalene Terblanche
Note: This document is protected under the Copyright Act
Illegal distribution of the document is not allowed
, 7/15 x 100/1 = 46.7% + 8/15 x 100/1 = 53.3%
- Plaintiff= claims damages, wants to claim 100%, but as his also at fault,
claim must be reduced.
- Examle: P receives 53.3% of R100 000, thus R53 300.
- AA Mutual Insurance Ltd v Nomeka 1967 (3) SA 45 (A): degree of
plaintiff’s fault automatically determines the degree of fault in
dependant.
Ex: plaintiff = 40% negligent thus defendant automatically 60%.
DON’T USE THIS METHOD
- Automatic approach= determination of plaintiff’s % of contributory
negligence automatically fixes the % of defendant’s negligence.
- Independent approach= measure every actor’s conduct against the
standard of the reasonable person.
- Uijs case = seatbelt case.
Onus of proof:
- Defendant raises defense of contributory negligence obo plaintiff
(defendant must prove such a defense on balance of probability)
- ADA doesn’t apply to reach of contract.
Voluntary assumption of risk + cf:
- Consent to injury + consent to risk of injury (volenti non fit iniuria)
- If voluntary assumption of risk is present = NO delictual claim.
- Attorney = argue voluntary assumption of risk as ground of justification,
if unsuccessful = argue under fault.
Rescue cases:
- Involve voluntary assumption of risk + cf
- Someone who consciously endangers himself, in rescue situation will not
be blamed for contributory negligence or intent = rescue case can be
used as a defense to exclude delictual liability.
- Ex where rescue cases will fail = defendant X negligently sets house on
fire, Plaintiff runs in to savage jacket, gets injured. X not liable for Y’s
injuries bc Y’s contributory intent will cancel X’s negligence since his
Created by Jalene Terblanche
Note: This document is protected under the Copyright Act
Illegal distribution of the document is not allowed
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller Passthattest. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R100,00. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
62890 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy summaries for 14 years now