Fault (culpa)
Refers to the blameworthy attitude or conduct of some one who has acted wrongfully.
Two main forms of fault: intention (dolus) and negligence. fault can only be present if a person has
acted wrongfully.
actio leges Aquiliae & the action for pain and suffering require either intention or negligence.
actio iniuria generally requires intent and negligence is insufficient.
Accountability (121-123)
A person is accountable (culpae capax) if he has the necessary mental ability to distinguish
between right and wrong and if he can act in accordance with such appreciation. He must
have the required mental ability at the time of the commission of the act for which the law intends
to blame him. Accountability is the basis of fault. A Person can lack the required mental
capacity due to the following factors:
Youth
>7 years = irrebuttable presumption of not accounable.
7 – 14 = rebuttable presumption of not accounable.
14 + = rebuttable presumption of accountable.
{Eskom Holding Ltd v Hendricks 2005 (5) SA 503 (SCA)}
Mental disease or illness
person cannot distinguish between right and wrong
person cannot act in accordance with his distinction.
Intoxication or similar drug induced condition
May be culpae incapax
consumption may be a negligent act, as preformed when accountable.
Anger due to provocation
under provocation loses his temper and becomes passionatly angry may be said to lack
accountability. Provocation is usually regarded as a ground for justification.
Intent (dolus) (123-128)
A person acts intentionally if his will is directed at a result which he causes while consciuos
of the wrongfulness of his conduct
dolus directus (Direct intent)
wrongdoer desires a particular consequence of his conduct (irrespective of probability of
consequence occurring)
dolus indirectus (Indirect intent)
wrongdoer directly intents one consequence of his conduct but at the same time has
knowledge that another consequence will unavoidably or inevitably occur (does not desire
consequence but must occur to achieve another consequence
dolus eventualis
wrongdoer does not desire result but forsees the possibility of the result and nevertheless
preforms the act which brings about the consequence.
dolus determinatus (definite intent)
wrongdoer`s will is directed at a result which he causes while he has a specific person or
object in mind.
dolus indeterminatus (indefinite intent)
wrongdoer`s will is directed at a result which he causes while he has no specific person or
object in mind (doesnt know exactly who or what will be effected but has intent with regard
to the consequences of his conduct)
Consciousness (knowledge) of wrongfulness
wrongdoer must know (realise) or foresee the possibility that his conduct is wrongful
(contrary to law or an infringement of another's rights). The general rule for delictual liability
is that any mistake with regard to either a relevant fact or to the law excludes intent.
Motive and Mistake as to the causal chain of events
Motive in general indicates the reason for someone's conduct. Motive may prove direct
intent or consciousness of wrongfulness. Bad motive (malice or mala fides) usually indicates
knowledge of wrongfulness while a good motive (bona fides) usually indicates the opposite.
Mistake as to the causal chain of events, wrongdoer causes a result in a manner different
from that foreseen by him. Intention is absent when a marked deviation exists in the casual chain
so different from the foreseen one that the actual chain cannot reasonably be regarded as falling
within the actor's own perception
Negligence (128-156)
Three stage test for negligence
(1) Would a reasonable person in the position of the defendant forsee the reasonable possibility
of his conduct causing harm?
(2) Would a reasonable person take steps to guard against such occurrence?
(3) Did the defendant fail to take such steps?
{Kruger v Coetzee 1966 (2) SA 428 (A)}
(1) Reasonable forseeability
Relative v Abstract
With the abstract approach we question whether harm to others was in general
foreseeability, extent of damage or exact consequences that occurred is not required.
It suffices if damage in general was reasonably foreseeable to someone. Must be
accompanied with legal causation.
The relative approach is much stricter and requires that the particular consequence
must be reasonably foreseeable (at in general), not just damage in general. Particulars
of harm follow
Extent of Harm
Relative approach: liable for only forseen harm/extent of for seen harm
Abstract approach: liable for all damage as i foresaw the harm.
{Botes v Van Deventer 1966 (3) SA 182 (A)} = Used abstract approach to determine
extent of harm for which defendant is liable.
Manner in which harm occurs
Abstract approach: liable if RP saw general manner of harm unless legal causation
determines other wise.
Relative approach: RP must at least see the general manner in which harm will occur.
As to how certain must someone be that harm will result? -> High enough possibility
of harm occuring that reasonable person would of safe guarded against it.
{Minister van polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101 (A)} =
It is sufficient if you see the general manner in which harm will result, therefore
abstract approach.
Kind of Harm: unforeseeable harm
Must the kind of harm actually suffered be reasonably foreseeable?
Relative approach: Kind of harm actually occurred must be reasonable foreseeable.
Abstract approach: It is sufficient that some harm was reasonably foreseeable
{Murray v Union & South West Africa Insurance Co Ltd 1979 (2) SA 825 (D)} =
Use Relative approach: If Reasoanle person would have not reasonably forseen the
harm or it is so trivial that they would have not taken step to protect against it then
not negligent.
Kind of harm vs Extent of harm
{Murray v Union Brain and Co Ltd}
Plaintiff to which harm was caused: unforeseeable plaintiff
Are Defendants liable to unforeseeable plaintiffs?
Abstract approach: If RP foresaw to anyone he id liable to everyone.
Relative approach: RP only foresaw harm to certain person or persons, he is not
liable to unforeseeable plaintiffs.
{Palsgraf v Long Island Railroad Company 162 NE 99, 59 ALR 1253 (1928)= Use
relative approach, RP would not foresee harm to unforeseen plaintiff, not negligent.
{Bourhill v Young (1943) AC 92 (HL (SC))}= Use relative approach, negligence is
according to foreseeable plaintiffs not unforeseeable ones, therefore not negligent
{Workmen's Compensation Commissioner v De Villiers 1949 (1) SA 474 (C)= Used
relative approach, defendant was not negligent in relation to unforeseen plaintiffs.
{JHB Consolidated Inv Co Ltd v Langleigh Construction (Pty) Ltd 1991 (1) SA 576
(A) = Court looks to see if negligence toward foreseeable person, if not then no
negligence towards unforeseeable plaintiff. (Abstract)
{Daniels v General Accounts Insurance Co Ltd 1992 (1) SA 757 (C)} = As above,
court examined if defendant acted negligently towards foreseeable plainitiffs
since he didnt not he is to negligent towards unforeseeable plaintiffs.(Abstract)
{Moni v Mutual & Federal Versekeringsmaatskappy Bpk 1992 (2) SA 600 (T)}=
Abstract approach
In General use relative approach
Foreseeability of wrongful conduct on part of others
{General Accident Insurance Co South Africa Ltd v Xhego 1992 (1) 580 (A)} = Can
be negligent if it is reasonably foreseeable other will act wrongfully an do not take
precautions.
{Stansbie v Troman (1948) 2 KB 48 (CA)}= Can be negligent for someone's
intentional wrong
{Van der Merve v Union Government (1936) TPD 185}= RP will presume other will
not drive carefully so would anticipate it and guard against it
{Moore v Minister of Posts and Telegraphs 1949 (1) SA 815 (A)}= RP will expect
other road users to act lawfully but were they do not you must be on your
guard.
EG anticipate people to speed.
{Marine and Tradr Insurance Co Ltd v Singh (1980) (1) SA 5 (A)}= RP can foresee
people acting against the law or negligently in certain circumstances and so must
guard against it. Though the relative blameworthiness will affect the allocation of damages.
(2) Reasonable prevent ability
Would the reasonable person the position of the defendant take reasonable steps to
safe guard against the harm.
{Robertson v Durbam Turf Club and Others 1970 (4) SA 649 (N)}= Defendant does
not have to take all steps to prevent harm just reasonable ones.
If Defendant takes precautions but harm still occurs they are not negligent as acted as
RP would have.
Seriousness of the harm
{Wasserman v Union Government 1943 AD 228} = If foreseeable harm is not
serious RP would not take precautions thus no negligence even if actual harm is
serious.
Probability of Harm occuring
{Bolton v Stone (1951) AC 850 (HL)}= No Negligence is possibility of harm
occuring is so remote RP would not guard against it.
Cost and Difficulty of taking precautionary measures
{Lomangunti Sheetmetal and Engineering (Pvt) Ltd v Basson1973 (4) SA 523 (RA)}
{Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A)}= If Seriousness of harm
outweighs the burden of precaution then RP would take steps to prevent it, If not no
steps needed.
Social utility of the harm producing conduct
{Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA)} =
Negligence of Experts
{Van Wyk v Lewis} and {Buls v Tsatsarolakis}= RP changes to standard of
reasonable professional in you regional area.
{Durr v ABSA Bank Ltd and Another 1997 (3) SA 448 (SCA)}= If person professes
to be an expert but is not you perform negligence test as if he were.
