LU 4 FAULT AND FORMS OF

LIABILITY WITHOUT FAULT

Prescribed material
• PM: Chapter 8, 10, 14, 15, 32 and 35
• Stedall and Another v Aspeling and Another 2018 2 SA 75 (SCA)
• Netherlands Insurance v Van der Vyver 1968 1 SA 412 (A).
• Kruger v Coetzee 1966 (2) SA 428 (A).
• Lampert v Hefer 1955 2 SA 507 (A).
• Greater Johannesburg Transitional Council v ABSA 1997 2 SA 691 (W).
• Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC).
• Fourie v Van der Spuy and De Jongh Inc. and Others 2020 1 SA 560 (GP).
• Stearns v Robispec (Pty) Ltd (27949/2017) [2020] ZAGPJHC (9 March 2020)
• MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA)
• Roux v Hattingh 2012 (6) SA 428 (SCA)
• Jansen, R Neethling, J “Delictual capacity and (Contributory) Negligence of Minors” Journal of Contemporary Roman-Dutch law 2017
(80) 474.
• Neethling, J Potgieter, J Wrongfulness and delictual liability for rugby injuries: Roux v Hattingh (SCA) 2014 SALJ 131.
Theme 1
• LO1: Define accountability.
• LO2: Explain the factors that may negate accountability.
• LO3: Discuss how the Child Justice Act 75 of 2008 changed the common law position with regard to the accountability of children
(see material on VC Learn)
• LO3: Comprehensively discuss the legal principles and requirements governing intent as a form of fault.
• LO4: Differentiate between the different forms of intent by illustrating it with examples.
• LO5: Distinguish between intent and motive.
• LO6: Discuss the test used to establish negligence as set out in Kruger v Coetzee 1966 (2) SA 428 (A).
• LO8: Describe the concept of gross negligence with reference to case law.
• LO9: Distinguish between negligent misstatement and an omission.
• LO10: Describe the general characteristics of a reasonable person.
• LO11: Discuss the approach taken by our courts to the negligence of children and experts, respectively.
• LO12: Explain the meaning of an expert
• LO13: With reference to case law, explain the nature of the foreseeability of harm, including the difference between the abstract and
the concrete approach thereto.
• LO14: With reference to case law, describe the four factors that make up the preventability leg of the negligence test.
• LO15: Explain why negligence should be judged in the circumstances, and describe the factors that should be taken into account in
this investigation;
• LO16: Describe the effect of the res ipsa loquitor maxim.
• LO17: Explain the distinction between wrongfulness and negligence.
• LO18: Briefly distinguish between fault and contributory fault.
• LO19: Briefly describe the common law position with respect to contributory fault.
• LO20: Describe the content and effect on the common law of section 1(1)(a) and (b) of the Apportionment of Damages Act 34 of
1956;
• LO21: Evaluate the application of the defence of contributory negligence.
• LO22: Describe the two approaches taken by the courts to the apportionment of damages, as well as the view that these approaches
can be reconciled;
• LO23: Distinguish between voluntary assumption of risk as a defence excluding wrongfulness and voluntary assumption of risk as a
ground that cancels fault.
• LO24: Describe contributory intent in relation to Lampert v Hefer 1955 2 SA 507 (A).
• LO25: Describe consent to the risk of injury and contributory intent in relation to Netherlands Insurance v Van der Vyver 1968 1 SA
412 (A).
• LO26: Discuss the ruling in Greater Johannesburg Transitional Council v ABSA 1997 2 SA 691 (W) with respect
to contributory intent.
• LO27: Apply the legal principles relating to the element of fault and forms of liability without fault to a set of
facts, with reference to relevant authority.
• LO28: Discuss the liability of an attorney in handling a trust account without negligence with reference to the
case of Fourie v Van der Spuy and De Jongh Inc. and Others 2020 1 SA 560 (GP).
We
are
here
Prior to determining whether defendant’s wrongful
conduct is blameworthy/culpable (ie whether there is fault
on his part), it must be established whether he has capacity
to be held accountable – this means that person’s mental
ability must be such that intent or negligence may be
imputed to him
A person is accountable (culpae capax) if that person
has necessary mental ability to distinguish between
right and wrong AND if he can also act in accordance
with such appreciation.
Person must have required mental ability at time
of commission of act
If a person lacks accountability at relevant time,
there can be no fault on his part – accountability
can thus be seen as basis of fault.
NB Only role that diminished accountability may
possibly play in delictual liability is to reduce
quantum of satisfaction (damages) claimable in
terms of actio iniuriarum
 Youth

Factors Mental
Provocation negating illness or
accountability disease **See tb
pg 140-143
for
discussion
on these
factors
Intoxication
 Common law position
Youth INFANS (0-7years) IRREBUTTABLE
PRESUMPTION - DOLI INCAPAX ie no legal
capacity. Can never have capacity.
IMPUBES (7+ to 14 years) REBUTTABLE
PRESUMPTION DOLI INCAPAX . Can be proven
to have capacity.
14-18 CULPA CAPAX- considered to be adults in
respect of accountability unless proven
otherwise they are legally accountable
SEE Weber and Eskom judgments pgs 141 and
142 Tb.
 Child Justice Act 75 of 2008 changed common law position
with regard to accountability of children

CULPA CAPAX
Impubes
CULPA INCAPAX
Rebuttable
Infans presumption
CULPA
INCAPAX
Irrebutable
presumption
 MENTAL DISEASE/ILLNESS/EMOTIONAL DISTRESS

If at the time of the delict, defendant was suffering from

MENTAL DISEASE/ILLNESS/EMOTIONAL DISTRESS
which rendered him/her incapable of distinguishing right
from wrong and acting in accordance with this distinction
See S v Campher on pgs 142-143
INTOXICATION
MAY render person
unaccountable BUT where
person takes intoxicating
substance whilst accountable
THEN commits delict, he/she
may be held accountable
See S v Chretien pg 143 Tb
 PROVOCATION
Impacts wrongfulness as well
MAY also be relevant in relation to
ACCOUNTABILITY or FAULT in the form of
negligence
Possible to be provoked to such a degree
that there is a loss of understanding right
from wrong AND ability to act in
accordance with that understanding
Once it has been established that
defendant was accountable (ie culpa
capax) at relevant stage, it must be
determined whether he acted
culpably (intentionally or negligently).
SO WHAT IS FAULT??
Components of FAULT
• ACCOUNTABILITY ie ABILITY/MATURITY
• CULPABILITY (NEGLIENCE OR INTENTION) ie mindset or conduct
• General requirement for delictual liability = fault
(culpa in a wide sense)
• Fault (legal blameworthiness or reprehensible state
of mind or conduct of someone who has acted
wrongfully)
• Two main forms of fault are recognised

DOLUS (INTENTION) CULPA NARROW

SENSE (NEGLIGENCE)
 In a sense fault is a SUBJECTIVE
element of a delict because to a large
extent it is concerned with a person's
attitude or disposition
BUT
Test for negligence is OBJECTIVE in nature
WHICH IS DETERMINED FIRST BY COURTS – WRONGFULNESS
OR FAULT?
Courts follow pragmatic approach, depending on the
circumstances either element may be decided first.
 Actions Intent Negligence
Actio legis Aquiliae Need not be present, Must be present for
but if it is, then it will liability (unless intent
suffice for liability * is present)
Actio iniuriarum Generally required for Generally insufficient
liability ** for liability **
Action for pain and Need not be present, Must be present for
suffering but if it is, then it will liability (unless intent
suffice for liability is present)

* Easier to prove negligence (objective test) than it is to prove intent (subjective test) – therefore, when
instituting a claim based on actio legis Aquiliae, one will usually not try to prove more difficult form of fault
(intent), but rather negligence.

** Say ‘generally’ because there are exceptions where actio iniuriarum can be instituted without having to
prove intent (e.g. liability of press for defamation)
Intent
A person acts intentionally if his will is directed at a result
which he causes while conscious of wrongfulness of his
conduct.
Intention therefore has two elements :
1. Direction of will – result of conduct was the principal
object or one which was foreseen might follow from his
conduct
2. Consciousness (knowledge) of wrongfulness.
 DIRECTION OF THE WILL

direct dolus
indirect eventualis
 e.g. X wants to kill Y.
(a)Direct intent (dolus directus) X takes his gun,
– this form is present where presses it against Y’s
wrongdoer actually desires a head and pulls the
particular consequence of his trigger. Shot goes off, Y
conduct is shot in head and
Does not matter is the result is dies.
achieved in a manner not
foreseen. Eg A wants to kill B by
shooting him. B falls off a cliff
and dies whilst trying to escape
being shot
(b)Indirect intent (dolus
indirectus) – this form is
present where a wrongdoer
directly intends one
consequence of his conduct
but at same time has
understands that another
consequence will
unavoidably or inevitably
also occur.
DOLUS DIRECTUS TO KILL NEIGHBOUR’S BIRD
DOLUS INDIRECTUS TO BREAK NEIGBOUR’S
WINDOWS
(c) Dolus eventualis – this form is
present where wrongdoer, while
not desiring a particular result, BUT
foresees possibility that he may
cause harmful result and reconciles
himself to this fact i.e. he
nevertheless performs act which
brings about consequence in
question. See Tb pgs 146-147
NB DIFFERENCE BETWEEN DOLUS EVENTUALIS
AND NEGLIGENCE:
Negligence – question is whether consequence
objectively seen, was reasonably foreseeable ?
Dolus eventualis – question is whether wrongdoer
actually subjectively foresaw possibility of
consequence ?
Definite intent (dolus determinatus) vs indefinite intent (dolus
indeterminatus)
Definite intent = where a wrongdoer's will is directed at a result
which he causes while he has a specific person or object in mind
– this form may be present in case of direct intent, indirect intent
and dolus eventualis.
Indefinite intent = where a wrongdoer's will is directed at
result which he causes while he has no specific person or
object in mind
e.g. in case of a person placing a time-bomb in a busy shop.
He does not know precisely who will be hurt or what damage
will be caused, but he nevertheless has intent in respect of
consequences of his conduct.

See Tb 147 for discussion on Pistorius case

 INTENT v MOTIVE
Intent =technical legal term that denotes willed conduct which wrongdoer knows
is wrongful.
Motive = reason why a person acts in a particular way i.e. object he wishes to
achieve, his desire, or facts behind formation of his will.
e.g. Euthanasia - where person kills another in order to spare him suffering.
Motive was merciful but action of killing was wrongful and person will committing
murder

Despite differences between intent and motive, motive is clearly of evidentiary

value to prove direct intent – it may serve as evidence that someone acted with
direct intent.
Motive may serve as proof of consciousness of wrongfulness – it may be accepted
that a bad motive (malice or mala fides) usually indicates knowledge of wrong-
fulness while a good motive bona fides) usually indicates the opposite.
Mistake about causal chain of events
Is intent present where wrongdoer causes a result in a different manner from that foreseen
by him ?

X believes that result will be brought about in a certain manner –

result does ensue, but in a manner that differs from that
foreseen by X.
Examples

• X tries to kill Y by pushing her off a bridge into a river,

expecting that she will drown; in fact, Y is killed because, in
her fall, she hits one of bridge pillars.
• X shoots at Y, but misses; Y, who suffers from a weak heart
and nerves, dies of shock.
Intent depends on whether deviation is material or immaterial – AD held
that a marked deviation exists if actual causal chain is so different from
foreseen one that actual causal chain could not reasonably be regarded as
falling within wrongdoer’s own perception.
 NEGLIGENCE
Culpability = attitude or conduct of
carelessness, thoughtlessness or
imprudence because, by giving
insufficient attention to his actions
he failed to adhere to standard of
care legally required of him.
 NOTE: Negligence and omission
Negligence is a form of fault (ie failing to meet
standards of conduct or reasonable person)
Omission is a form of conduct (failing to ACT)
So… an omission can be performed
intentionally/negligently
Positive conduct can also be negligent or intentional

(Think of examples of each)

Criterion adopted by our law to establish whether
a person has acted carelessly and thus negligently
is objective standard of reasonable person i.e.
bonus paterfamilias [Good father of the family]
Defendant is negligent if a reasonable person in
his position would have acted differently.
NB Jones v Santam Bpk 1965 (2) SA 542 (A)
A person is guilty of culpa if his conduct falls
short of that of standard of diligens
paterfamilias – a standard that is always
objective and which varies only in regard to
demands arising in any particular
circumstances. It is a standard which is one
and same for everybody under same
circumstances.
Discussed further on relating to children
Can negligence and intention overlap ?
According to Van der Merwe and Olivier' negligence may only exist in
regard to a consequence if wrongdoer has not ‘intentionally’ caused
that consequence – in terms of this view intention and negligence are
mutually exclusive concepts in sense that one cannot be present
when other exists.
There are a number of decisions which tend to support view that a
person cannot act intentionally and negligently in respect of same
consequence.
On other hand, there are decisions in which it was stated that if
intent is present, negligence is included in intent.
See Neethling pgs 139-140
MV Stella Tingas Transnet Ltd t/a
Portnet v Owners of the MV Stella
Tingas 2003 (2) SA 473 (SCA)

Court describes gross negligence as follows :

“To qualify as gross negligence the conduct in question, although

falling short of dolus eventualis [ie intention], must involve a
departure from the standard of reasonable person to such an extent
that it may properly be categorised as extreme; it must demonstrate,
where there is found to be conscious risk-taking, a complete
obtuseness of mind or, where there is no conscious risk-taking, a
total failure to take care. If something less were required, the
distinction between ordinary and gross negligence would lose its
validity.”
Ordinary vs. gross negligence – although it makes no
difference for Aquilian liability whether defendant acted with
slight or gross negligence, some statutory provisions limit
liability to instances of ‘gross negligence’, and some
contractual exclusionary clauses also refer to this concept.

e.g. malicious prosecution as iniuria, it has already been held

that liability may be based on gross negligence instead of
intent and that it is therefore material to determine whether a
wrongdoer has acted with gross negligence.
General characteristics of a REASONABLE PERSON
“a fictional person with an ordinary degree of reason, prudence,
care, foresight, or intelligence whose conduct, conclusion, or
expectation in relation to a particular circumstance or fact is used
as an objective standard by which to measure or determine
something (as the existence of negligence).” [Link]
[Link]/legal/reasonable%20personaccessed 15/08/2020

• A fictitious person is concept created by law, not an

exceptionally gifted person or careful neither underdeveloped,
or reckless
• A reasonable person is a legal personification of qualities that
the community expects from its members in their daily conduct
Children and the reasonable person test
Should fact that wrongdoer is a child play a
role in application of reasonable person test ?
BEFORE : reasonable child test

AFTER : reasonable person test

 Jones v Santam 1965
Maria turned 9 years old on day of accident. Evidence showed her to be a
normal, intelligent child. She had grown up and lived in Springs, a town
where she was accustomed to busy motor traffic, and she was also
accustomed, in going to and from school, to walking over busy streets. She
had been told at school of danger of crossing streets or roads when traffic
was approaching and had been instructed as to precaution of looking first
before crossing. Her father said in evidence that his children had been
trained since they were very small to help themselves and that at time in
question Maria had reached stage where she was self-reliant.
On evidence before him, and after he had
himself seen child in witness box, judge
found her to be culpae capax in relation to
her conduct that afternoon two years
earlier.
See Neething pg 143 @ fn 108
According to this approach, in determining whether
child acted with culpa :
(a) It must be ascertained whether child concerned
met standard of care required of reasonable person.
(b)It must be asked whether child, if care shown by
him did not meet requirements of first test, was culpae
capax (accountable for his actions).
Note how court assessed only degree of care shown by 9 year
old Maria, without taking into account fact that she was a
child : “For a pedestrian to move suddenly in that manner in
front of oncoming traffic would clearly not be conduct of
diligens bonus paterfamilias and would thus, on application of
objective test, amount to negligence.”Neethling pg 143 fn 107
CRITICISM OF NEW APPROACH
[Link] cannot be measured against adult standards
[Link] to apportionment of damages when applying traditional
and new approaches. Traditional approach favoured child in event of
an apportionment of damages; his negligence percentage was
calculated with fact of his youthfulness in mind (a factor which
tends to bring percentage down). In new approach fact of childhood
is not taken into account in assessment of negligence percentage.
Thus percentage will not tend to drop merely because plaintiff is a
child.
[Link] case placed cart before horse by 1st inquiring into fault and
then into accountability. Logically one must 1st determine whether a
person is accountable before there can be any question of fault
Appellate Division cases confirm Jones view

1. Roxa v Mtshayi (fn 111 Neethling)

Court confirmed that reasonable-person test must be applied. Court correctly tested 1st for
accountability and 2nd for negligence.

2. Weber v Santam Versekeringsmaatskappy Bpk (Neethling 144)

Court also set out steps that should be followed :
• First test for accountability – SUBJECTIVELY : take particular situation into account and also all
relevant characteristics of particular child e.g. intelligence, maturity, background, education, ability,
impulsiveness, irresponsibility, and be careful not to place “an old head on young shoulders”
If child is found to be accountable, then :
• Test for negligence – OBJECTIVELY – with reasonable-person test, and ignore fact that a child is
involved.
3. Eskom Holdings v Hendricks (Neethling 145)
Court took cognisance of criticism of reasonable person test for children but held that in each case
must be determined whether child in question had developed emotional and intellectual maturity to
appreciate particular danger to be avoided and, if so, to act accordingly.
 With an expert such as a dentist, surgeon, electrician, etc.
test for negligence in regard to exercise of expert activity is
test of so-called REASONABLE EXPERT i.e. reasonable
dentist, reasonable medical doctor, reasonable attorney,
reasonable teacher, reasonable police officer, reasonable
banker, reasonable auditor, etc. – negligence of an expert is
sometimes referred to as professional negligence.

Standard of expertise is described as ‘reasonable’ because it is not highest degree of

expertise in relevant profession or occupation, but general or average level of such
expertise.

.
Van Wyk v Lewis 1924 AD 438, reference is made to “the general level of skill
and diligence possessed and exercised at the time by the members of the
branch of the profession to which the practitioner belongs”. In this case it was
held that, as far as medical profession was concerned, same expertise cannot be
expected from a general practitioner as from a specialist

Durr v ABSA Bank 1997 (3) SA 448 (SCA)

Case dealt with an investment broker. SCA approved of approach in Van Wyk v
Lewis and emphasised that it is for court to decide what is reasonable under
circumstances.
• It will pay much attention to views of profession but is not bound to adopt
them.
• In casu, appropriate standard was that of regional manager of broking
division of a financial institution professing investment skills and offering
expert investment advice.
 Imperitia culpae adnumeratur
Ignorance or lack of skill is deemed to be negligence.
Principle applies where a person
undertakes an activity for which expert
knowledge is required while such person
knows or should reasonably know that he
lacks requisite expert knowledge and
should therefore not undertake activity in
question.
See Neethling pg 147 @ fn 134
See
[Link]
-guarantees-meet-reality-health-care/
 **Concrete/relative
approach
Was a the GENERAL
NATURE and GENERAL
MANNER OF
Abstract approach OCCURRENCE/
Was ANY harmful consequence reasonably
consequence foreseeable? foreseeable ?
[FAVOURED APPROACH]

Reasonable FLEXIBLE
foreseeabilit CONCEPT
DEPENDS
See case law
y ON FACTS
pgs 157-161
for guidelines
developed by
courts
Application of foreseeability test – not possible to lay down hard-
and-fast rules because circumstances of each case are decisive.
As a broad guideline = foreseeability of harm will depend on
degree of probability of manifestation of harm (ie how great
chance or possibility is that it will occur).
Therefore, greater possibility that damage will occur, easier it will
be to establish that such damage was (reasonably) foreseeable
• LOMAGAUDI Case pg 157

• Broad Guidelines
• How real is the risk of harm
• If the harm does occur, what is the
extent of damage
• What are costs/difficulty in guarding
against the risk
Bolton v Stone 1951 AC 850
Here a cricket ball was hit out of a cricket field onto a public road where it
struck and injured a woman. The facts showed that cricket balls had been hit
out of field 6 times in 28 years, court held that under circumstances, risk of
causing harm in this manner was so small that reasonable person would not
have foreseen it.

Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 (3) SA 531 (E)
Plaintiff sustained serious injuries when he fell into an inspection pit in a
workshop on farm of defendant. It appeared that plaintiff had gone to farm to
borrow a particular tool. Sun was shining into workshop at relevant time.
Court found that negligence on part of defendant was not proved and held inter
alia that presence of pit, viewed in light of facts of case, did not present a real
danger. Such danger as it might have presented to an adult in plaintiff's position
was so slight (and therefore not reasonably foreseeable) as not to give rise to an
obligation to take steps to prevent harm.
Stratton v Spoornet 1994 (1) SA 803 (T)

Plaintiff's son aged 8 years sustained burns when he climbed an electric pylon abutting a railway line and
touched a high voltage cable.

Preiss J held that child's injuries were not reasonably foreseeable : “The issue of foreseeability can be
chartered with almost mathematical accuracy. That children, especially young boys at an adventurous or
exploratory age, would stray onto railway premises is virtually certain. There is no difficulty in ranging such
conduct within the realm of reasonable foreseeability. Far less likely, almost to the point of extreme remote-
ness, is possibility that the child would venture to climb a pylon right to the very top and pass the horizontal
barrier. To go on to contemplate possibility that such a child would then climb along the latticework takes one,
in my view, to the stage of such unlikelihood as to free a diligens paterfamilias from delictual liability. The
further possibility of an electric shock or a fall from the latticework is even more unlikely and involves a piling
of one unlikelihood upon another.”

For this conclusion judge relied on fact that there was no record of a similar accident : “The very fact that an
accident of this general kind has never occurred is, in my view, a cogent and compelling pointer to the
conclusion that this kind of harm does not fall within the realm of reasonable foreseeability.”
Would a reasonable person have foreseen possibility of harm occurring ?

No steps would need to be

taken so no negligence
What steps would a reasonable and therefore no delict
person have taken to PREVENT
harm from occurring ?
 Nature and extent of risk
Factors inherent in wrongdoer’s
relevant to conduct
preventability Seriousness of damage if risk
materialises and damage
follows
Relative importance of
wrongdoer’s conduct

Cost and difficulty of taking

precautionary measures
• SEE NGUBANE pg 163
• Court applied 4 preventability factors
• Balance the degree of risk and seriousness of injury
against the social need of conduct and the burden of
reducing risk.
• HELD SATS negligent for failing to prevent harm.
Summary by Van der Walt and Midgley of preventability
factors
Magnitude of risk must be balanced against utility
of conduct and difficulty, expense or other
disadvantage of discontinuing from conduct or
taking a particular precaution.
If magnitude of risk outweighs utility of conduct,
reasonable person would take measures to
prevent occurrence of harm; if actor failed to take
such measures, he acted negligently.
However, if burden of eliminating a risk of harm
outweighs magnitude of risk, reasonable person
would not take any steps to prevent occurrence of
foreseeable harm.
See Further…

Cape Metro Council v Graham pg 163-164

Enslin v Nhlapo pg 165
Shabalala v Metrorail pg 164-165
Negligence judged in light of surrounding circumstances
Pgs 170-174
To check wrongdoer’s behaviour against standard of a
reasonable person in his position

Greater care is required when someone works with things which are inherently dangerous
e.g. a loaded firearm, dynamite, a pressure cooker, a wet shop floor

Greater care is also expected when a person deals with individuals who suffer from some disability
or incapacity e.g. deaf-mutes, blind persons, children, intoxicated persons

Situation of sudden emergency

Reliance on fact that another person will act in a reasonable way

Specific statutory provision

Customs, usages and opinions of community

Where there is a
statutory presumption
of negligence, onus
rests on defendant to
rebut presumption of
negligence in order to
escape liability.
Not a presumption of negligence –
phrase is merely an argument on
probabilities that a plaintiff, who may
have little evidence at his disposal, may
use in order to convince court that
defendant acted negligently. Defendant
may still submit evidence to show that
occurrence in question bears no relation
to any negligent conduct on his part.
 Working on in groups you must explain
these concepts as a fairy tale
• Accountability- Explain the factors
that may negate accountability;
• Intention as a form of fault;
• Negligence as set out in Kruger v
Coetzee 1966 (2) SA 428 (A);
• Describe the general characteristics
of the reasonable person;
• Describe the effect of the res ipsa
loquitor maxim;
• Explain the distinction between
wrongfulness and negligence;
Contributory fault CHAPTER 35

FAULT CONTRIBUTORY FAULT

Relevant in limiting
extent of defendant’s
liability

Defendant’s Plaintiff’s Regulated by

Apportionment of
conduct conduct Damages Act
 South Africa
followed English Apportionment of
law : all or nothing Damages Act 34 of 1956
rule

Roman-Dutch (common law) :

Last opportunity rule
fault on plaintiff’s part = no
Davies v Mann
damages claim from defendant
Who was the decisive cause?
Apportionment of Damages Act
Section 1(1)(a) :
Where any person suffers damage which is caused partly by his own fault and partly by fault of
any other person, a claim in respect of that damage shall not be defeated by reason of fault of
claimant but damages recoverable in respect thereof shall be reduced by court to such extent as
court may deem just and equitable, having regard to degree in which claimant was at fault in
relation to damage.
Section 1(1)(b) :
Damage shall for purpose of paragraph (a) be regarded as having been caused by a person’s
fault notwithstanding fact that another person had an opportunity of avoiding consequences and
negligently failed to do so.

Effect of these provisions = to abolish ‘all-or-nothing’ principle of common law and to allow court
to apportion damage of each party in accordance with their relative degrees of fault.
 Plaintiff Defendant
1. Contributory negligence Negligence
Section 1 of Apportionment of Damages Act applies – not a
complete defence, but plaintiff’s damages will be reduced

2. Contributory negligence Intent

No defence for defendant – intent cancels out negligence
according to common law rule

3. Contributory intent Negligence

Plaintiff forfeits his claim – intent cancels out negligence
according to common law

4. Contributory intent Intent

According to Minister van Wet en Orde v Ntsane, it is doubtful
whether a defence of contributory intent may be raised in
terms of Act.
In Greater Johannesburg Transitional Metropolitan Council v
ABSA, court held section 1(1)(a) applies if there is intent on
both sides.
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd
t/a Volkskas Bank

W, who worked for ABSA, fraudulently

caused proceeds of these cheques to
T, an employee of GJTMC (ex Soweto City be credited to other accounts, causing
Council) stole cheques drawn in favour payee, Soweto City Council, losses to
of his employer and handed them to W. amounts reflected in these
GJTMC then instituted a claim for instruments.
damages against ABSA on basis of ABSA raised a defence of contributory
vicarious liability intent on basis of fraud of T who was
employed by Soweto City Council at all
relevant times.

Goldstein J gave judgment in favour of plaintiff but ordered a 50% reduction of amount of damages in accordance
with section 1(1)(a). Court held that section 1(1)(a) applies when form of fault on part of both plaintiff and
defendant is intent.
CRITERION FOR APPORTIONMENT OF DAMAGES
• Reasonable person test for negligence=
section 1(1)(a) only applies where damages
caused partly by fault of Pl and partly by Def
• Apportionment does not apply to strict
liability
• See approaches of South British Insurance,
Jones and General Accident cases
Before Jones v Santam, once plaintiff’s degree
of negligence had been established, it was
unnecessary to enquire into extent to which
defendant’s conduct had deviated from
standard of reasonable person (approach 1
South British Insurance pg 530)

Fact that plaintiff was 40% negligent (for example)

does not automatically mean that defendant was
60% negligent (approach 2 Jones v Santam pg 531)

To establish respective degrees of negligence, each party’s carefulness of

conduct must be measured separately against reasonable person standard
 standard of
reasonable
person
Plaintiff’s R10 000 Defendant’s
conduct damages conduct
deviated deviated
70% 80%
Calculation
Ratio between plaintiff’s and defendant’s degree of fault is 70 : 80 (7 : 8) Added together = 15

Plaintiff’s degree of fault is 7/15 x 100/1 = 46.7%

Defendant’s degree of fault = 8/15 x 100/1 = 53.3%

Because plaintiff is 46.7% to blame for his loss, he only gets compensation for 53.3% of damage he has
suffered : 53.3% of R10 000 = R5 330
Approach 3 – General Accident case – Court will consider othe factor not just degree of plaintiff’s fault

Approach 4- fair and reasonable result see pg 531

 Damage vs. Damage-causing event
Plaintiff’s negligence Plaintiff’s negligence was in
INCREASED his damage regard to EVENT ITSELF
(e.g. not wearing a seat-belt) (e.g. car accident)

King v Pearl Insurance Bowkers Park Komga v SAR and H

Court held that plaintiff’s failure to wear Plaintiff’s damages can be reduced if he
a crash helmet while driving a scooter has contributory negligence in regard to
was not contributory negligence – only damage suffered
damage-causing event counts
Approach accepted by

• Union National v
Failure to wear a seat-belt or helmet is Vitoria
• Vorster v AA Mutual
contributory negligence ! • General Accident v Uijs
 Does Apportionment of
Damages Act apply to damages
for loss suffered due to breach
of contract ?

Thoroughbred Breeders Association of South Africa v Price Waterhouse

Plaintiff sued his auditor for breach of contract. His complaint was that,
during routine annual audit, auditor failed to discover that plaintiff’s
financial director was systematically stealing from him.
Auditor’s defence was, inter alia, that plaintiff was himself negligent in
his control of financial director and that, due to his contributory
negligence, his claim was subject to reduction in terms of
Apportionment of Damages Act.

Essence of court’s decision = Act was historically not intended to apply to

claims for breach of contract, but only to amend law of delict.
Gibson v Berkowitz
Plaintiff’s negligent conduct BEFORE damage-
causing event.

Only relevant for purposes of apportionment of

damages

Plaintiff’s conduct AFTER event.

Must be considered when determining legal causation

(which may, of course, exclude a defendant's liability
for harmful consequences which are too remote, and
this way reduce plaintiff’s damage and therefore his
damages)
May mean consent to
injury or consent to
risk of injury

Ground of justification
negating wrongfulness

OR
Ground that cancels
fault in respect of
contributory fault

Not a ground of
justification
 Lampert v Hefer 1955
Plaintiff took her seat as a passenger in sidecar
of defendant’s motorcycle, well aware that
defendant was so intoxicated that he was
incapable of maintaining proper control of
motor cycle. An accident occurred in which
plaintiff sustained injuries and defendant was
killed. Plaintiff claimed damages from
defendant’s estate.

Case was before passing of Apportionment of Damages Act 1956 so last

opportunity rule was still in place – plaintiff would have had last opportunity of
avoiding any damages to herself so no remedy was available to her.
Suppose that this
case happened
after 1956 …
Possible defences available to defendant

Plaintiff consented to injury ?

Consent as a ground of justification (negating wrongfulness) was

absent because consent to serious bodily injury would have
been contra bonos mores

Plaintiff acted with contributory negligence ?

Plaintiff’s actions go beyond what reasonable person would

have done in this situation
Plaintiff acted with contributory intent ?

Plaintiff, well aware of danger and possibility of injury,

nevertheless decided to expose herself to risk

Where there is an actual assumption of risk, injured party

chooses freely, with full knowledge of danger, to run risk –
not negligent but an intentional exposure to risk.

Where, however, injured party should have been aware of

danger, but was not, there is clearly no assumption of risk,
but only contributory negligence.
Netherlands Insurance Co.v Van der Vyver

O’s wife suspected him of cheating on her.

She hired a private detective, V, to spy on her
husband. V followed O in his car to a lonely
spot in veld. O had a woman with him in his
car. When V approached O’s car, O started to
drive off. V leapt onto bonnet to obscure O’s
view and to make him stop. O accelerated,
however, and began to swerve from side to
side, clearly with object of dislodging V, who
was clinging on for dear life. Six kilometres
further, O succeeded in dislodging V. Court a quo held that O was 50%
V sustained injuries and he claimed negligent and V was 50% negligent.
compensation from insurer of O’s motor car. V, therefore, obtained only half his
damages
On appeal, court rejected O’s defence that V had consented (as a ground of
justification) to risk of injury.
In order to succeed with this defence, requirements are that :
• V must have realised nature and extent of risk and
• V must have voluntarily consented to it.
Court found that, when he leapt onto bonnet, V neither knew nor thought that
O would continue driving – V assumed subjectively that O would stop. V was
therefore unaware of danger which O’s conduct posed to him (V). There could
thus have been no question of consent on V’s part.
Court declared that, although V had been aware of risk, this would still not have
meant that he had consented to it.

Yet even if V had consented, his consent to risk of serious physical injury would
have been invalid as being contra bonos mores.
Court then considered O’s defence that V had contributory intent. Referring to his
defence, Van Blerk JA declared :
“No authority from our case law was cited for the statement that contributory intent
is an independent defence, nor was reference made to any of the authoritative
sources of our law recognising it.”
AD was therefore not prepared in principle to acknowledge such a defence.
Court held that O was solely responsible for damages suffered by V.

While contributory intent is not found as a defence eo nomine (by that name) in our
authorities, concept has been developed in law in order to explain a form of well-known
defence of volenti non fit iniuria. Thus, a defendant who relies on contributory intent
relies, to use different terminology, on a form of volenti non fit iniuria.

This particular form is present in a case when defendant escapes liability because
plaintiff has exposed himself voluntarily and ‘intentionally’ to risk of injury.
Rescue cases and voluntary assumption of risk

Example

Mr Burn negligently sets a house on fire. Mr

Silly runs into burning house to salvage his
jacket and is injured by flames. Mr Burn is
not liable for Mr Silly’s injuries, because they
were not reasonably foreseeable – it is
clearly not reasonably foreseeable that
another person would expose himself to risk
of either serious injury or loss of life just to
recover a jacket.
If Mr Silly was a fireman who had to enter
house in course of performing his duties,
Mr Burn might well be liable because he
should have foreseen that fire brigade
would have to intervene.

Suppose, however, that Mr Silly entered house to rescue a baby and

was injured by flames – here Mr Burn would also be liable, because
he should have foreseen that there could be a baby in house and
that someone would enter house to rescue baby.
COMPLETE THIS ON VC LEARN
Activity 4.1.3: Fault and Forms of
Liability without Fault
You have 20 minutes