Theme 3

Question 1

What are the five rules of aquilian?

Answer 1

• Harm
• Conduct
• Fault
• Wrongfulness
• Causation

Question 2

What is patrimonial harm as defined by Warneke?

Answer 2

Patrimonial harm is loss in the form of an infringement of a person’s right or loss in respect to property, profit or prospective gains, which leads to negative financial consequences for a person’s estate or net worth (Warneke)

Question 3

What is patrimonial harm as defined by Jowell?

Answer 3

Patrimonial harm is defined as the reduction of a person’s estate (Jowell)

Question 4

What are the common forms of patrimonal hamr?

Answer 4

Common forms of patrimonial harm: (Warneke)
- Physical harm to tangible property
- Physical harm to the victim’s body
- Pure economic loss

Question 5

When can someone claim patrimonal harm in relation to there spouse?

Answer 5

A husband who can show that due to his wife’s death, he faces real negative financial consequences can claim patrimonial loss. (Warneke)

Question 6

When can a person claim loss of earnings?

Answer 6

A claim where a victim suffers a bodily injury that results in the victim not being able to work and so there is a loss of income, is properly called a claim for “loss of earning capacity”. (Byleveldt)

Question 7

What are different types of income losses?

Answer 7

• Lawful income
• Criminal income
• Income that is not criminal but still “contrary to public policy”
• Income derived from a “colourless statutory prohibition”

Question 8

What is criminal income?

Answer 8

Criminal income: A criminal who loses income will never be able to use the criminal income as a benchmark for showing the extent of harm suffered. You cannot suffer loss in respect to illegal loss or income, as this would be contra bons moris. (Dhlamini)

Question 9

What is the onus of proof for patrimonial harm?

Answer 9

• The onus of proof for patrimonial harm must be proven on a balance of probabilities with reference to evidence (Jowell)
• A distinction between prospective and present losses must be made. When proving prospective loss, it is sufficient to prove the possibility of the loss and the present loss is proven on a balance of probabilities (Jowell)

Question 10

What is conduct?

Answer 10

Conduct refers to a positive act (doing something) or an omission (failure to act) (Ewels)

Question 11

What are the two requirments of conduct?

Answer 11

Two requirements for conduct in delicts: (Molefe)
- It must be executed by a human being
- The conduct must be voluntary- You must be physically able to subject your body to conscious will

Question 12

What is an omission?

Answer 12

• An omission is a failure to act; this is not prima facie unlawful and will only be unlawful if proven (Ewels)
• An omission in a delictual claim can be considered unlawful if the legal convictions of the community (LCC) require that the omission be regarded as wrongful (Mashongwa)

Question 13

What is the defence of automatism?

Answer 13

The defence of automatism demonstrates that voluntariness was in fact lacking (Molefe)

Question 14

What are the facts in Molefe?

Answer 14

Freddy Mahaeng who went to the Minimarket in Welkom tripped on a banana peel and hit his head on the floor. His head wasn’t sore, but he felt pain in his leg. He felt okay and started driving home. He suddenly felt hot, nauseous, and then experienced a sudden, unforeseen, and uncontrollable blackout. He swerved his car into the opposite lane and collided with Mr Molefe. (Molefe)

Question 15

Who has the onus of proof on automatism?

Answer 15

The onus of proof is on the claimant to prove automatism/involuntarieness at the time through medical evidence (Molefe)

Question 16

What are the facts in Wessel?

Answer 16

An insulin-dependent diabetic who knew that he was prone to having hypoglycaemic attacks that could be prevented by eating regularly, but failed to eat regularly while driving a car. He was involuntary at the time of the car crash; however, he was an experienced diabetic, and a reasonable man would have taken steps to prevent the blood sugar crash, like taking a mid-morning snack. (Wessels)

Question 17

What is the prerequisite of fault?

Answer 17

The prerequisite of fault is capacity. Once capacity is established, Intention or negligence will have to be established

Question 18

Define Capacity

Answer 18

Capacity is defined as cognition (the ability to distinguish between right and wrong) and conation, the ability to act in accordance with this appreciation (Webber v Santam)

Question 19

What determines capacity?

Answer 19

Capacity is determined by Age, Mental health and intoxication (Webber v Santam)

Question 20

What is the common law on the capacity of age of infants?

Answer 20

• Infants are under the age of 7 - a child under the age of 7 years is irrebuttably presumed to lack capacity for fault (Van Oudtshoorn v Northern Assurance)

Question 21

What is the common law on the capacity of age of preteens?

Answer 21

Preteens are between 7 and 14 rebuttably presumed to lack capacity for fault; evidence can be brought to show that the preteen has the capacity (Eskom v Hendricks)

Question 22

What is the common law on the capacity of age of teens?

Answer 22

Teenagers are those over the age of 14 - they are rebuttably presumed to have the capacity for fault

Question 23

What is used to determine whether a 7-14 year old has capacity for fault?

Answer 23

• The child’s intelligence to appreciate danger;
• The child’s knowledge of how to avoid the danger;
• The child’s maturity for impulse control.
  Jones NO v Santam

Question 24

Does a persons rage mean they dont have capacity?

Answer 24

A person who is filled with rage cannot claim that they lacked capacity; our law requires people to control their anger (S v Eadie)

Question 25

What was held in S v Chretien on the degree of when intoxication denotes voluntariness?

Answer 25

- If the wrongdoer causes harm to another in that state, then it is clearly a matter of automatism. - If the wrongdoer got himself into the state of automatism on purpose, then it would be a case for the actio in libera causa - The person could simultaneously be sober enough to act voluntarily but drunk enough to lack cognition and conation - Section 1 of the Criminal Law Amendment holds that a person cannot use intoxication as a defence, as they will be liable for the same charge.

Question 26

How is intention established?

Answer 26

Intention is established by there being a direction of will and consciousness of wrongfulness (Dantex v Brenner)

Question 27

what are the types of intent?

Answer 27

Types of intent (Postorius) - Directus (direct intent) - Indirectus (indirect intent) - Doclus eventualis (foresight) - Where you subjectively foresee the possibility of harm and recklessly proceed with your high-risk conduct in any event.

Question 28

How do you establish Dolus in a delict case?

Answer 28

Knowledge of a right, without a subjective intention to cause harm by infringing that right, is insufficient to establish dolus (intention) for the purposes of delictual liability in cases of intentional contractual interference (Dantex Investment Holdings v Brenner)

Question 29

How is intention proven?

Answer 29

Intention is Proven through: (Pistorius) - Subjective Test: The court must determine what the accused actually foresaw and actually reconciled themselves with, not what a reasonable person ought to have foreseen - Inference from Objective Facts: Intention is rarely proven by direct evidence; it is typically inferred from the objective facts and circumstances surrounding the incident.

Question 30

What are the three requirments of negligence?

Answer 30

Culpa arieses if a reasonable man (dilgens paterfamilias) in the defendant's position (Kruger) - Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing patrimonial loss - Would take reasonable steps to guard against such an occurrence - Failed to take such steps

Question 31

What are the four componenets (Kruger)?

Answer 31

Negligence four components (Kruger) - The appropriate standard of care of a reasonable person - Reasonable foreseeability - Reasonable Prevability - Whether the wrongdoer took reasonable steps

Question 32

What is the general rule of a negligence?

Answer 32

The general rule is that all wrongdoers are held to the standard of a reasonable person (Kruger)

Question 33

What is the reaonable standard?

Answer 33

- The reasonable person is the average prudent person (Paine) - The reasonable person is not a physical person but an objective standard (Weber) - The reasonable person is not timorous, fainthearted, or scared to take risks. They live in the world, do things, and take reasonable chances; they protect their own interests and expect others to do the same. (Herschel)

Question 34

What is the reaonable organ of state?

Answer 34

The reasonable organ of state is sourced from the constitution, which states that the state must take reasonable measures to advance the realisation of the rights in the Bill of Rights (AK v Minister of Police)

Question 35

What is the reaonable practioiner?

Answer 35

- A reasonable practitioner is established by the standard of conduct of the reasonable practitioner in the particular professional field based on expert evidence established in logical reasoning. The expert has considered comparative risks and benefits and has reached a defensible conclusion, creating a benchmark (Michael v Linksfield Park Clinic) - A reasonable doctor is one bound to employ reasonable skill and care with regard to the profession they belong to (Blythl)

Question 36

What is the reaonable police officer?

Answer 36

A reasonable police officer must follow the standard of a reasonable organ of state, which is based on the available resources and the positive obligation to take reasonable and appropriate measures to fulfil rights. (AK v Minister of Police)

Question 37

What is a reaonable banker?

Answer 37

A reasonable banker does not profess to have skills he does not have and therefore must seek the necessary skills to fufill his function (Durr)

Question 38

What is a sudden emergency?

Answer 38

Sudden emergency only applied in cases where negligence was created by a third party, the person themselves or by an act of God. And to determine if in a sudden emergency, a person acted recklessly, we take into account the circumstances, as well as if the person has any skill in regard to the ability to cope with dangerous situations. (Brown v Hunt)

Question 39

What are the factors of a concrete theory?

Answer 39

- Would the reasonable person have foreseen harm of the general kind that actually occurred in this case? And would the reasonable person have foreseen the general kind of causal sequence by which that harm occurred? (Boberg and Mukheibir). - Concrete forseablity is a narrow test, that asks two specific questions (Mukheiber) - The majority in the SCA endorse the concrete forseablility test. (Sea harvest) - The court considered whether a reasonable person would have foreseen the possibility of a firework entering the chimney of the factory in the remote area. The court established that, due to the remoteness of the possibility, a reasonable person would not have considered it (Sea Harvest)

Question 40

What are the factors of a absolute theory?

Answer 40

- Asks whether any kind of harm was reasonably foreseeable (Sea Harvest ) - Abstract foreseeability is a wide test, as the reasonable foreseeability is attached to conduct that increases the risk of harm without having a specific foresight of the consequence (Sea Harvest) - The minority in Sea Harvest (SCA) endorsed the abstract forseablility test. (Sea harvest) - The court established that it was reasonably foreseeable that a fire was foreseeable in a factory without a sprinkler system, therefore establishing abstract foreseeability. This stated that it was foreseeable and preventable. However, taking into account the legal causation, they established that the harm is "too remote" because the causal chain of events was not reasonably foreseeable (Sea Harvest)

Question 41

What factors affect the reaonable preventability?

Answer 41

There are four considerations in each case which influence the reaction of the reasonable man in a situation: (Ngubane) - the degree or extent of the risk created by the actor's conduct - the gravity of the possible consequences if the risk of harm materialises - the utility of the actor's conduct - the burden of eliminating the risk of harm.

Question 42

What are the factors under the resonable preventablility extent of the risk?

Answer 42

If the evidence shows that the risk of harm was generally high or increasing leading up to the damage-causing event, it is likely that preventative steps should have been taken. (Graham)

Question 43

What are the factors under the resonable preventablility, the gravicty of the consequnces extent of the risk?

Answer 43

- When serious consequences to the body or life are at stake, it becomes more likely that steps should be taken to prevent the harm (Ngubane). - A reasonable man will consider the seriousness of the harm and the chances of its happening. If the consequences of an action would cause serious harm, a reasonable man would guard against it; however, if the consequences are trivial, he will not guard against it (Ngubane). - The reasonable person might not guard against the risk if the alternatives posed just as much risk (Mohofe)

Question 44

What are the factors under the resonable preventablility, utility of actors conduct?

Answer 44

- If there is a greater social good being served by the actor’s conduct, that would be a consideration weighing against the taking of preventative steps (Mohofe). - A reasonable person would not have avoided their duty simply because it involved a foreseeable risk, especially when the alternative (doing nothing) could have led to even greater harm (Mohofe).

Question 45

What are the factors under the resonable preventablility, burden ?

Answer 45

- The higher the cost, the less likely it will be that preventative steps need to be taken (Mostert) - The cost or burden of a preventative measure is low; a defendant is expected to take that measure to prevent foreseeable harm (Avonmore). - A reasonable person is not expected to undertake the prevention of a foreseeable event that would have a huge cost and is not highly probable (Mostert)

Question 46

What affects the resonable preventable steps?

Answer 46

- If reasonable preventative steps were taken, there can be no negligence, even if harm occurred. If the preventative steps were not taken, then we could establish negligence. (Kruger)

Question 47

Which test absolute or concrete should be used?

Answer 47

You can choose which theory you want to use based on the circumstances of the case; there is no hard and fast rule (Sea Harvest)

Question 48

How should the resonable preventablity be weighed up?

Answer 48

We weigh up the first two factors with the last two factors, to establish if preventable steps should have been taken (Ngubane) When the first two factors, high risk and severe consequences, are strongly present, the obligation to take preventative steps becomes very strong. (Ngubane)