ACCOUN TABILI T Y

Question 1 - [20]

Discuss accountability as a prerequisite for finding a person blameworthy when

establishing delictual liability & discuss the defences to exclude accountability. In your
answer briefly refer to applicable case law.

Question 2 - [20]

According to our law, a person may lack the necessary mental capacity where one or
more factors are present, name and explain the 4 factors

Question 3 - [5]

When is a child accountable? Discuss

Question 4 - [10]

How is the negligence of a child wrongdoer determined? Discuss.

 IN TEN T

 Name & describe the three forms of intent and provide appropriate examples

 Explain the requirements for contributory intent with reference to case law

 X places a powerful time bomb in a busy shop. It explodes an hour later, injuring five
people. Did X act with intent with reference to the victims’ injuries? Explain.
 GENERAL
QUESTION 1 - [15]

Peter is employed as a greengrocer by the Supashop supermarket. Peter chops up

lettuce leaves in the fruit and vegetable section to make a salad mix. Some lettuce

leaves land on the floor of the shop. Martha, a housewife shopping for fresh produce,

slips on a leaf and falls, breaking her left arm.

Martha wishes to institute a delictual action against Supashop. Advise her on the

following aspects:

1. Did Peter have fault in respect of Martha’s injuries? Refer in your advice to both

forms of fault and cite relevant case law. (10)

2. Accept that fault was present on Peter’s part. Advise Martha now on whether

Supashop can be held liable instead of Peter. (5)

QUESTION 2

X negligently sets a house on fire. Y runs into the burning house to salvage his jacket.

Y is injured by the flames.

1. Will X be liable for Y’s injuries? Explain.

2. Will your answer be different to that in 1 if Y runs into the burning house to rescue

a baby? Explain.
QUESTION 3

John invites his friend, Peter, for a test flight in his newly restored Tiger aeroplane.

Peter, accepts the invitation. While in the air, John decides to give Peter the adventure

of his life by attempting a few tricks with the aeroplane. John’s flying abilities fall short;

the aeroplane’s wing hits a tree, and miraculously stops in one piece. John sustains

minor injuries. Peter, however, who on impact with the ground was flung from the

aeroplane, is seriously injured.

Peter institutes a delictual action against John, claiming R150 000 for damages

he allegedly suffered. John raises two defences:

1. John’s first defence is that he has not yet completed his training as a pilot and

has not yet been taught all the know-how. Can such a defence succeed?

2. Alternatively, John raises the defence of contributory negligence:

a) Peter did not buckle up as requested by John. On behalf of John, it is alleged that

Peter would not have been flung from the aeroplane if he had buckled up, and

evidence shows that he would then only have suffered R100 000 damages.

Aviation rules require that a person should use his or her safety belt. Can such a

defence succeed? Support your answer by means of case law.

b) Assume that John’s second defence succeeds and the court finds that Peter was

30% negligent. Is John automatically 70% negligent? Explain by referring to case

law.

c) Assume further that the court finds John 70% negligent. Calculate Peter’s

damages.
QUESTION 4

John invites his friend, Peter, for a test flight in his newly restored Tiger Moth

aeroplane. Peter, who loves adventure, accepts the invitation. While in the air, John

decides to give Peter the adventure of his life by attempting a few tricks with the

aeroplane. John’s flying abilities fall short; the aeroplane’s wing hits a tree, ploughs a

few metres over the ground, and miraculously stops in one piece. John sustains minor

injuries. Peter, however, who on impact with the ground was flung from the aeroplane,

is seriously injured. Peter institutes a delictual action against John, claiming R150 000

for damages he allegedly suffered.

John raises the following defence: Voluntary assumption of the risk:

1. Explain the meaning of such a defence

2. Name the requirements of this defence and explain whether it can possibly

succeed in these circumstances. Refer to relevant case law.

QUESTION 5 - [10]

X, an extremely intelligent child aged seven years and one month, is urged by friends

to shatter the windshield of Y’s car with a brick.

If Y were to claim form X personally, which defence would be available to X.

QUESTION 6 - [10]

Briefly explain, by means of an example, how the abstract and the concrete (or

relative) approaches with regard to foreseeability - in the process of establishing

negligence – differ

QUESTION 7 - [5]

X, an aged person who has spent his entire life in a rural community in a remote part

of the country, visits relatives in Pietermaritzburg for the first time. Being utterly

unaware with the traffic situation in a big city, he ignores a red traffic light and in doing

so causes an accident.

Will his lack of experience be a consideration in his favour in the process of judging

his conduct as possibly negligent?

QUESTION 8 - [15]

X, a 10-year-old farm boy, visits his cousin, Y, in the city. During the visit X

demonstrates the use of the so-called clay stick, to Y. X is very keen on this game, in

which he indulges every day on the farm. X does not realise how busy it is in the

vicinity. Although he has aimed the ball of clay at an open field nearby, under the

impression that his conduct is safe enough, he hits Z who is busy practicing with his

German Shepherd dog.

Can X’s conduct be regarded as negligent under these circumstances?

QUESTION 9 - [5]

Explain whether a breach of a statutory duty constitutes negligence.

QUESTION 10 - [4]

Briefly discuss Dolus directus.

QUESTION 11 - [6]

Distinguish between Dolus eventualis and luxuria

QUESTION 12 - [5]

Kerri was born with hydrocephalus (a medical condition where excessive fluid

accumulates in the brain). When she was 5 she underwent surgery in which a shunt

was inserted to drain excess cerebrospinal fluid and water from her brain. A few years

later, she began to complain of headaches. Her parents consulted a neurosurgeon,

Dr Black, who advised them that Kerri required a new shunt which could be inserted

in one operation. (A neurosurgeon is a specialist physician who specialises in surgery

on the brain and other parts of the nervous system.)

Dr Black attempted to insert the shunt but was unable to position it correctly in Kerri’s

brain. A further three operations followed in an attempt to insert the shunt.

The first two unsuccessful operations caused severe brain injury which caused

cognitive, memory, speech, visual and mobility problems.

Kerri’s parents sue Dr Black for committing a delict. Dr Black argues that she did not

act negligently as she performed the surgery exactly as a reasonable person would

have. With reference to the facts given would you agree with the doctor’s argument?

Refer only to the TEST FOR NEGLIGENCE that is applicable to this case.
QUESTION 13 - [5]

Workers employed by the University of KwaZulu-Natal, Pietermaritzburg, are engaged

in repairing underground drainage pipes in the parking area outside the chemistry

building. They have removed a manhole cover in order to gain access to the pipes. A

framework, made of steel rods surrounds the open manhole and the workers have

woven red and white tape around this framework to alert pedestrian and vehicular

traffic to the danger.

By five o’ clock, the two workers have not completed the repair work, and they leave

the manhole cover open overnight when they go off duty. The cover is made of pre-

cast iron, which is extremely heavy, and it would be very difficult and time–consuming

for the two workers to replace the cover and remove it again in the morning.

During the course of the evening, two brothers from one of the nearby houses, Abe,

aged ten and Ben aged 15, climb through the cage and down the manhole ladder. On

reaching the bottom, Abe strikes a match to see his surroundings. An explosion

occurs, and Abe is severely burnt. Ben, who is still near the top of the manhole, is

knocked off the ladder and breaks his arm in falling to the bottom of the manhole.

The University has conceded on all issues with the exception of the negligence

element. The University has also raised the contributory negligence of the children as

a defence.

Assume that the University would be vicariously liable if the workers can be proved to

have committed a delict, and assume that the measure of damages is not in issue.

Advise Abe and Ben’s father whether he could successfully sue the University of
KwaZulu-Natal for the losses suffered as a result of the injuries suffered by Abe and

Ben.

Limit your answer only to the negligence argument in respect of the University and the

defence of contributory negligence raised by the University. Do not discuss any other

elements other than the applicable law of fault

QUESTION 14 - [30]

Mike hires a mountain bike from Steadywheels Mountain Bike Park and goes for a

ride on one of the mountain bikes trials in the park. Even though Mike’s safety helmet

is in the boot of his car, he neglects to put on his helmet before he goes for the ride.

Along a steep part of the trial, the front wheel of the rental bike suddenly comes off,

mike falls and sustains serious injuries.

It transpires that David, an employee of Steadywheels, had not fastened the front

wheel of the bike properly when he had serviced it. In addition, it transpired that Mike’s

injuries would have been substantially less serious if he had worn his helmet.

Mike wants to institute a delictual claim against Steadywheels. Write a properly

substantiated opinion on the feasibility of such a claim:

(a) you may accept that Steadywheels will argue that there was no fault on its part

and will not contest the other elements of delictual liability.

(b) In addition, you should also consider whether any defence is available to

Steadywheels and what the effect of such a defence, if available, would be.

(c) Furthermore, you should give an opinion on the fact that Mike’s claim will be

instituted against Steadywheels, rather then David.

QUESTION 15 - [15]

Joseph is an intelligent twelve-year-old boy. His dream is to be a world-class cricket

player one day. While practicing in his parents’ back yard, he hits a ball with all his

might. The ball shatters a big window in the neighbour’s house.

Discuss in detail whether Joseph was negligent.

QUESTION 16 - [10]

Johnny is an intelligent thirteen-year-old boy. He dreams to be a great scientist one

day. After much research on the internet, Johnny builds a rocket in his parents9

backyard. One day he decides to launch the rocket. The rocket ascends at great

speed to a height of 200metres.Then it bursts into flames. It falls onto the thatched

roof of the neighbours lapa.

The lapa burns down. Discuss only, but in detail, whether Johnny was negligent
QUESTION 17 - [10]

Tom is an energetic and intelligent thirteen-year-old boy. He has built a sturdy

soapbox-cart. He pulls it to the top of a steep hill to test drive his new vehicle. He gives

the cart a push, jumps in and grabs hold of the steering wheel. The cart goes downhill

at a terrific speed, but the steering mechanism and the brakes do not operate very

effectively.

Tom crashes into the neighbours expensive sports car that is, as usual, parked on the

sidewalk. Tom causes a lot of damage, Discuss only but in detail whether tom was

negligent

QUESTION 18 - [5]

One afternoon Koos home unexpectedly to find his neighbour having intercourse with

his daughter, the seventeen-year-old Tana, on the couch. Without a moment’s

hesitation, Koos grabbed his neighbour and assaulted him severely.

His neighbour institutes an action for damages based on the assault against Koos.

Koos claims that he did not have fault. Discuss the correctness of his claim
QUESTION 19 - [10]

Mr A runs a business in a nature reserve on a mountainside. In winter the peaks are

covered in snow. Visitors are able to drive up the mountainside on a road made by Mr

A, and park. Near the parking area there is a steep precipice falling to the deep gorge

below. When there has been heavy snowfall, the edge is not visible.

Mr and Mrs B visited the reserve and parked their 4X4 on the high hill. Fresh snow

covers the ground, and underneath the snow is an invisible layer of hard slippery ice.

Mr B walked to the edge of the hill to see the view, unaware of where the hill ended,

as there was no fence or warning sign, and the snowfall concealed the edge. Because

the conditions were so dangerous and slippery, Mr B slipped and fell to his death over

the edge of the precipice.

Once before someone else had fallen over the edge after a snowfall, but she had

survived by grabbing onto vegetation. Mr A had been warned at the time that it was

not safe to allow vehicles access to the top of the reserve when conditions were so

dangerous; that warning signs should be put up; and that catching fences should be

erected to prevent people from falling down to the gorge below.

Mrs B brings a claim for damages against Mr A for loss of support for herself and their

children.

a) Describe the test used to establish whether Mr A was negligent. Provide the name

of the case in which this test was authoritatively set out. (5)

b) Was Mr A negligent? Apply the test you have identified in (a) to the facts. (use

factors of preventability leg). (5)

QUESTION 20 - [24]

X and Y go to a party. In the course of the evening X consumes an entire bottle of

rum. Y notices that X is drinking too much, but nevertheless accepts X’s offer to drive

her home. On the way to Y’s home, X loses control of the vehicle and collides at high

speed with a tree. Y sustains back injuries for which she is hospitalised for a period of

two weeks.

Y wishes to recover her medical expenses from X. Answer the following questions

with reference to the above set of facts:

a) X claims that he did not act voluntarily, for purposes of delictual liability. Identify

his defence and briefly discuss the merits thereof. (3)

b) Assume that the court finds that X had acted. X now claims that Y consented to

the risk of injury. Discuss the merits of his defence. (5)

c) Assume that X’s reliance on consent to the risk of injury fails. Did X act

intentionally? Briefly discuss. (3)

d) Assume X did not act intentionally: Did he act negligently? Briefly discuss with

reference to case law. (3)

e) Assume X had indeed acted negligently. X now claims that Y had contributory

intent in respect of her damage. Discuss the merits of this assertion and indicate

what the effect of a successful reliance on this assertion would be. (5)

f) Assume that X’s defence of contributory intention fails. X now avers that, since

Y did not fasten her seatbelt, she was contributory negligent in respect of her

own injuries. Discuss the merits of this defence and indicate what the effect of

a successful reliance on this defence would be.

QUESTION 21 - [17]

X agrees with Y that he will build Y’s new home. During the building operations X is

irritated by the municipal inspector and he gives him a slap in the face.

The inspector sues Y vicariously. Answer the following questions:

1. Is there an employer – employee relationship between X and Y for the purposes of

vicarious liability? [5]

2. If there is indeed an employer –employee relationship:

a. what is the position if the inspector provoked X by slapping him first? [2]

b. Was X acting within the scope of his employment when he slapped the

inspector [10]
QUESTION 22 - [6]

A institutes a delictual claim against B on the basis of B's delict committed against

him. Accept that all the delictual elements, including fault, are present on B's part. A

suffers R45 000 damage.

(a) Should the court determine that there is 20% contributory negligence on A's part,

are there enough particulars to enable you to calculate the amount which A will be

able to claim from B? Discuss. (2)

(b) Should the court determine that there is 30% contributory negligence on A's part

and 60% negligence on B's part, which amount can A claim? Mention the name of

the first judgment in which the relevant method of calculation was set out.

Demonstrate the steps of your calculation. (4)

QUESTION 23 - [10]

Yehudah and Sam are friends and work colleagues who meet every Saturday morning

to play tennis. They are both competent and competitive players. One morning, during

an especially close match, Yehudah serves a fault by hitting the ball into the net. He

is furious about his mistake and because it is game point, he is determined to serve

an ace (a serve which the other player is unable to return) in order to win the game.

He summons up all his strength and slams the ball with full force towards Sam’s side

of the court.

However, while Yehudah is serving Sam runs towards the net, anticipating that

Yehudah will serve the ball short, so that it lands just beyond the net on Sam’s side of

the court.

Owing to Sam’s change in position on her side of the court, the ball served by Yehudah

hits Sam directly in her left eye. She falls to the ground in great pain and has to be

taken to hospital.

Unfortunately, Sam loses most of her vision in her left eye. Sam wishes to sue

Yehudah in delict for past and future medical expenses and pain and suffering arising

out of the harm caused to her by Yehudah’s conduct.

Sam approaches you for legal advice. With reference to relevant case law, explain to

her:

1. Whether Yehudah intentionally caused her injury

2. Whether Yehudah acted negligently in causing her injury.

QUESTION 24 - [15]

X, a motorcyclist who is not wearing a crash-helmet, is in a stationary position at a red

traffic light. He is suddenly struck from behind by Y who has not been applying his

mind to his driving, but has been joking with the passengers in his car.

The accident causes serious damage to X:

• R1 000 worth of damage to his motor cycle;

• R4 000 for medical treatment following a fracture of one of his legs;

• R24 000 for medical treatment in consequence of his head injuries

Evidence shows that X would have sustained no head injuries if he had been wearing

a crash helmet as required by the law.

1. it is urged on X’s behalf that his conduct is not in any way blameworthy with regard

to the occurrence of the accident [ viz that he has no fault with regard thereto] and

that his failure to wear the helmet is thus irrelevant for the purposes of determining

the amounts of his claims. Discuss the merits of this argument. [10]

2. Suppose that X would only have sustained minor head injuries had he been

wearing the helmet and that his medical expenses on that count would have

amounted to a mere R4 000. Calculate the amount of damages which X will be

able to claim with regard to head injuries, if it is established that X is 20 % negligent

and Y 60 % [5]
QUESTION 25 - [20]

Benny, a 13-year old boy, takes pot shots with his catapult at an empty can in the

backyard of his parent’s house. He misses and hits an extremely expensive sculpture

in the neighbours’ garden instead. The sculpture is now badly damaged.

Discuss only, but in detail, whether Benny was negligent, referring to relevant case

law.

QUESTION 26 - [4]

X, a barber, cuts the hair of Y. Y complains of a small mole on his neck and cautions

X to be mindful of it. X offers to remove the mole with a razor, as he has done this on

several previous occasions for other clients. Y entrusts this little task to X who forthwith

proceeds effecting the tiny operation. Afterwards X simply disposes of the piece of

discoloured skin and disinfects the wound with methylated spirits.

Sometime later the wound inflames and a subsequent examination shows that the

mole was in fact a malignant tumour.

Medical evidence reveals that the correct surgical method of removal, coupled with

an early diagnosis would probably have prevented the complication.

Can X's conduct under these circumstances be viewed as negligent? (Accept that X

acted wrongfully.)
QUESTION 27 - [15]

Read the set of facts below and answer the questions that follow:

Sipho, a motorcyclist who is not wearing a crash helmet, is in a stationary position at

a red traffic light. His motor cycle is suddenly struck from behind by Bradley who has

not been applying his mind to his driving.

The accident causes serious damage to Sipho; inter alia R55 000 damage for medical

treatment following a leg fracture; and R125 000 for medical treatment of head injuries.

Evidence shows that Sipho would have sustained no head injuries if he had been

wearing a crash helmet as required by law.

1. Name the Act which deals with contributory fault. (1)

2. Briefly discuss the concept of contributory fault with reference to the Act in 2.1

above. (5)

3. Sipho argues that he has no fault with regard to the occurrence of the accident and

that his failure to wear the helmet is thus irrelevant for purposes of determining the

amount of his claim. Discuss the validity of this argument. (3)

4. Explain to Bradley how a court will assess the relevance of the contributory

fault of the parties. (6)

QUESTION 28 - [30]

Workmen employed by the University of KwaZulu Natal, Pietermaritzburg, are

engaged in repairing underground drainage pipes in the parking area outside the

chemistry building. They have removed a manhole cover in order to gain access to

the pipes. A framework, made of steel rods spaced approximately 20cm apart both

vertically and horizontally, surrounds the open man-hole to a height of about 1,8m;

and the workers have woven red and white tape around this framework to alert

pedestrian and vehicular traffic to the danger.

By five o’ clock the two workers have not completed the repair work, and they leave

the manhole cover open overnight when they go of duty. The cover is made of pre-

cast iron, which is extremely heavy, and it would be very difficult and time –consuming

for the two workers to replace the cover and remove it again in the morning.

During the course of the evening, two brothers from one of the nearby houses, Abe,

aged 10 and Ben aged 15 years climb through the cage and down the manhole ladder.

On reaching the bottom, Abe strikes a match to see his surroundings. An explosion

occurs, and Abe is severely burnt. Ben, who is still near the top of the manhole, is

knocked of the ladder and breaks his arm in falling to the bottom of the manhole.

Advise the boy’s father whether he could successfully sue the University of KwaZulu

Natal for the losses suffered as a result of the injuries suffered by Abe and Ben. Briefly

consider what defence(s), if any, the University might raise.

Assume that the University would be vicariously liable if the workers can be proved to

have committed a delict, and assume that the measure of damages is not in issue.

You should:
QUESTION 29 - [25]

Kabelo, a senior lab assistant at the University of Limpopo, has been involved

in an accident that he alleges was the result of Mr. Mudau’s “recklessness”.

Kabelo tells you that Mr. Mudau failed to stop at a stop sign and did not indicate

the direction in which he intended to turn.

He has heard from Mr. Bapela that cases of delict are not as easy as he thinks

and that he must allege and prove negligence on the part of Mr. Mudau in order

to succeed with his claim for damages.

Explain to Kabelo, in simple non-professional language, the test for negligence.

Your explanation must be comprehensive enough to cover the possibility of an

apportioned liability since Kabelo has told you that he was not wearing a

seatbelt at the time of the accident. (25).

QUESTION 30 - [10]

Florence’s daughter is part of a group of children going on the trip. They are all

between the ages of eight and ten years. While crossing the road to get onto the

bus to go on the trip, are involved in a collision with a distracted driver.

They normally used the designated school crossing in Lynnwood Road but, on

that particular day, they were very excited about the school trip and decided to

cross Lynnwood Road at a point closer to the school bus, instead of walking

another 300 meters to the zebra crossing.

1. Can the driver successfully rely on contributory fault as a factor? Refer to

relevant authority in your discussion [5]

2. Assuming that it is established that both the driver and the learners had acted

negligently, and assuming that the driver was 70% negligent, while the

learners were 20% negligent, how would a court calculate the amount of

damages that the learners would be entitled to claim? You may assume that

the total amount of damages is R2 000 000. [5]