DLR 320 - Law of Damages - M. Du Buisson

DLR 320 Damages Notes M.
du Buisson
Introduction: Historical Development of law of delict

● 3 Historical actions
○ Actio legis Aquiliae - patrimonial harm or damnum iniuria datumn
○ Actio iniuriarum — for non patrimonial harm relating to personality interests
(iniuria) / directed st satisfaction
○ Germanic action for pain and suffering - relating to actual pain and suffering,
disfigurement, psychiatric injury, and loss of amenities of life associated with bodily
injury (impairment of bodily or physical/ mental integrity)
● Part of substantive private law / law of obligations
● A wrongdoer is obliged to make compensation for the damage suffered, the person prejudiced
has a corresponding right to claim obligations
○ The premise that the law of damage is founded upon is that damage rests where it
falls and that is that each person must bear the damage he suffers
● Delict v Breach of Contract
○ Delict = Constituted by an infringement of a legally recognised interest of another
party and remedies are directly aimed at compensation and not fulfilment (part of
private law / law of obligations)
○ Breach of Contract is constituted by non-fulfilment of a contractual obligation by a
contracting party, which act in a wrongful or culpable way causing harm to the other
contracting party
■ Primarily seeks for the enforcement/ fulfilment of contractual obligations,
whereby claims for damages are secondary
● Delict v Crime
○ Delicts are compensatory in nature
■ Delicts are compensatory in nature - compensated the aggrieved party for the
harm caused by the wrongdoer and is private in nature
■ Crime is public law and is penal in nature and seeks to punish the wrongdoer
● Delict: Is the conduct of a person that in a wrongful and culpable way causes harm to
another = determined by a generalising approach
● 5 Elements of a delict
○ Conduct /Act
○ Wrongfulness / Unlawfulness
○ Cupla/ Fault
○ Causation
○ Harm
● Functions
○ Compensation - aimed at financially restituting parties
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DLR 320 Damages Notes M. du Buisson
○ Protection - not only rights but interests too

○ Education - is limited / education via warning
○ Promotion - socially accepted compromises on conflicting views or to promote social
order
○ Provision
○ Deterrence
○ Reallocation - reallocation of losses/ to shift the loss from the victim to the wrongdoer
● Some acts constitute both a delict and a crime
● General v Caustiastic Approach
General Causiastic
● General principles regulate delictual liabilities ● Separate torts with own

irrespective General principles regulate delictual requirements: The aggrieved party
liability (Flows from the five generic requirements may only render the wrongdoer
for delictual liability) irrespective of which liable if his\her conduct satisfies all
individual interest is impaired or the way in which the requirements of a specific
the impairment was caused. delict/tort.
● The generalising approach is able to accommodate
changing circumstances and more situations more
easily than the casuistic approach, since the latter
requires a constant creation of new delicts
○ Usually slow legislative approach.
● Constitutional Provisions
● Section 9(3) prevents the state from from unfairly discriminating

● Section 9(4) prevents persons from unfairly discriminating
● Section 2
● Section 36
● Section 39(2) court interprets legislation or developes the common law it must take
into account the spirit purport etc
Dendy Case
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● The plaintiff brought a claim for satisfaction against the defendant. The defendant argued
that he was entitled to satisfaction because the defendant had infringed his Section 10 right
to dignity, under the Constitution of the Republic of South Africa (the "Constitution").
● Satisfaction is a common law remedy, catered for by the law of delict, enforced by the actio
iniuriarum. It serves the purpose of ameliorating the harm done to a person's personality
rights, such as dignitas. The harm, complained of in this instance, however, was the
infringement of a constitutional right. Typically, the infringement of a constitutional right
was not understood as "harm" for purposes of the common-law delict. Rather, typically, the
infringement of a constitutional right is understood to be protected by constitutional
remedies
● Accordingly, owing to the categorical disjuncture between infringement and remedy, the
defendant raised an exception to the plaintiff's particulars of claim, excepting to the absence
of a cause of action. It was alleged that because the common-law delict did not recognise
an infringement of a constitutional right as an actionable harm that the plaintiff, therefore,
had no cause of action.
● To circumvent the dilemma, it was argued by the plaintiff that the common-law delict,
particularly iniuria, was inconsistent with the Constitution. The alleged inconsistency was
argued to arise from the common-law delict not recognising the infringement of a right in
Chapter 2, Bill of Rights, as a violation of the common-law dignitas and accordingly, an
iniuria. In effect, the argument was that the common law should be developed so as to lend
the plaintiff a cause of action.
● The essential question with which the court was faced was: should the common law of
iniuria be developed so as to per se/necessarily include infringements of the BOR rights,
e.g. S 10 right to dignity, on the basis of recognising it as an infringement of the
common-law dignitas.
● The court held that it was unnecessary - it is inappropriate to develop iniuria to per
se/necessarily include infringements of the BOR because whether or not anything at all
constitutes an iniuria will depend upon whether or not it meets the two-leg test of inuria. It
was held that the test was constitutional because it was sufficiently flexible to
accommodate the development of new iniuria which were in line with the spirit, purport,
and objects of the Bill of Rights.
● Even though there may be overlaps between the law of delict and the constitutional rights
violations, the elements of a delict MUST still be proven.
● Impact of the constitution

○ Adjusting
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○ Changing the existing legal rules

○ Introducing new legal rules
■ Eg. a woman is pregnant and fails to mention it, she can hold the doctor liable
in delict
■ Child went to doctor for wrongful life, and court refused to introduce new
legal principle to encompass this argument
○ Application of established rules to a new set of facts
● Delict in a multicultural society
○ no clear distinction between delict and criminal law group context- group rights and
group liability
○ Ubuntu
○ Muslim and Hindi Influence = claims for loss of support defamation - restrictive
approach and remedies
(1) Damage /Harm

● Delict is a wrongful act which as harmful consequences
● It has a compensatory function = (a) compensation for damage or (b) satisfaction
● Damages are suffered but also enjoyed
■ Must write both words every single time
○ Damages/ harm = the detrimental impact of any patrimonial or personality interest
deemed worthy of protection by the law
○ Only harm in respect of legally recognised patrimonial and non-patrimonial interests
of a person qualifies as damage
○ Damage is only that education in the utility of interest which has been brought by an
uncertain event
■ Something that is certain to take place = like a prospective loss
○ Patrimonial = directly expressed in money terms
■ Objectively expressed in market value with more precision
■ Quantifiable with market value
○ Non - patrimonial = indirectly expressed in money terms
■ Subjectively expressed = feelings (equitable estimate)
■ Here your personality interest is reduced
● Both are mutually exclusive but share common denominator
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○ Diminution in utility/ use = both patrimonial and non-patrimonial are similar in so

far that after both forms of damages occurred you retain something that is not useful
to you now, like a damaged car or wounded pride
○ Need not be measurable in monetary terms
○ Both are aimed at compensation
○ Quality and utility of an interest protected by law is infringed
● Patrimonial loss and Patrimony
○ Is the diminution in the utility of a patrimonial interest in satisfying the legally
recognised needs of the person entitled to such interest
■ Detrimental impact on any patrimonial interest deemed worthy of protection
by the law
○ Refers to a loss or reduction in value of a positive assets in someone's patrimony
○ This also includes the creation or increase of a negative element of such a patrimony
(a patrimonial debt)
○ Seen as a factual and economic concept = normally determined using objective
criteria
■ Non - patrimonial losses = assessed by an equitable estimate
○ Everything which a person possess which has monetary value
○ The utility or quality of these patrimonial elements is always measured in money
○ This concepts consists of one's subjective rights with a monetary value, including an
expectation to acquire patrimonial rights with a monetary value
● Warneke Case = Provided the definition of patrimony
○ Patrimony is defined as the universitas of rights and duties
○ It is a juridical concept = this is the preferred doctrine
○ It extends to all patrimonial rights and expectations to acquire patrimonial rights
○ They are all legally enforceable obligations
■ Positive elements
● Patrimonial rights + expectations (E.g earning capacity)
● Determined by market value
■ Negative aspects
● Created through burdens (eg. Debts)
● Also extends to an expectation of debt
● Where a person will have to reasonably incur a debt as a result of the
delict
● Always measured in monetary terms and is determined with the
‘value at proper time’ criterion
■ Causes of patrimonial harm/damage
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● Loss of a patrimonial element : Utility of an object or an object in its

entirety is lost or an increase does not take place
○ Taxi is destroyed
● Reduction in value of a patrimonial element: Utility value of a
positive element of an estate is reduced
○ Car is damaged/ just the radio is stolen
○ Factory machine is destroyed and now you wont make as
much profit as may have anticipated
● Increase in debt
○ A negative element comes into existence, is increased or
accelerated
○ Like the incurrence of debt by way of medical expenses
■ These expenses are damages
○ Maintenance of child increases when they are ill
■ This is an increase in expenses
● Forms of patrimonial loss
○ Profit: Damnum emergens and lucrum cessans
■ Lucrum cessans = loss of a profit for prospective loss and the loss of a
patrimonial expectancy
■ Damnum emergens = all other forms of damage / in particular to refer to
damage suffered up to the date of trial
○ Damage to property and pure economic (financial) loss
■ Physical damage to property damage
■ Pure economic loss = loss that doesn't arise directly from damage to the
plaintiff’s person or property (Uber driver example)
○ Direct and consequential losses
■ Direct loss = the immediate or direct result of a damage causing event (taxi is
damaged)
■ Consequential damage event = loss that flows from a direct loss (taxi
business cannot continue and thus loses profit)
○ General (intrinsic) and external (extrinsic) damage
■ Intrinsic = damage rebuttably presumed to have come about by way of an
unlawful act
● Special damage = must be proven that it arose from an unlawful act
■ These are not used in practice
○ Assessment of patrimonial damage
■ We have 2 approaches
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● Concrete approach
○ (mainly used in practice)
○ Actual patrimonial position before the wrongful act
compared to the actual patrimonial position after the
wrongful act = i.e. RECEIPTS
○ Should not be used in instances where there has been a
hypothetical loss
● Sum-formula approach
○ Is the hypothetical matrimonial sum (-) subtract the actual
patrimonial sum
○ Deals mostly with anticipated or hypothetical calculations
not based on accurate concrete numbers
○ Recognised by SCA in Transnet case
■ Side note: Do animals contribute to a person's patrimony ? = No
● Time of assessment ?
○ Date and time of commission of the delict is the decisive moment
■ Earliest date on which all the elements of a delict are present
○ Regarding damage, this doesn't mean that the full extent of damage should have
occurred
○ If all the other requirements of a delict are present, the date on which the date on
which the first damage is manifested is used
■ General Accident Insurance v Summers = Loss of support and earning
capacity expected after the date of the trial must be assessed at a date of trial
and not date of the delict
● Prospective patrimonial damage (Lucrum cessans)
● Speculative process through which loss is quantified = it raises theoretical and
practical issues
○ Also means the partial frustration of an expectation that a patrimonial assets
will accrue or the creation of an expectation of debt
● Damage that has not yet been suffered at the time of assessment
● Prospective damage is damage in the form of patrimonial or non-patrimonial loss
which will, with a sufficient degree of probability, materialise after the date of
assessment of damage resulting from an earlier damage causing event
● Once and For All Rule = a plaintiff who claims damages on a specific cause of
action has only one chance to claim for all damages already suffered and for any
prospective loss
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○ Kicks in once a delict has been established and applies to compensation and
satisfaction
○ Must claim all damage (pat, non-pat, pain and suffering) - already sustained
and expected in future - as a result of single cause of action
○ Prescription commences when cause of action accrues and debt iro payment
of damages is claimable
■ Prescription generally concluded after period of 3 years = Claim
should be instituted within this period
○ Elements of delict are present (ie some damage must has occurred)
■ P aware/should reasonably be aware of debtor's identity and facts of
cause of action
○ P who has sued successfully/unsuccessfully for part of damage may not sue
for another part if both claims based on single cause of action (may not sue
twice for the same action)
■ Practical advice from lecturer: The moment you meet with your
client that you must know the extent of the harm and must inform
them that you will and must account for all prospective claims for
this harm
● Types or forms of prospective loss
○ Future expenses on account of damage causing event
■ Medication/ treatment and rehabilitation
○ Loss of income or future earning capacity
■ Earning capacity due to delict that caused a disability
○ Loss of business and professional profit
■ Reduced profit = cow example
○ Loss of prospective support
■ Death of a breadwinner
○ Loss of chance to gain benefit
■ Race horse example
● Recovery requirements
○ A claim cannot be instituted merely to recover damages for prospective loss,
since a cause of action only exists if some damage has already been caused
■ Thus some form of damage must have already occurred
○ Damages are awarded for damage already sustained, as well as loss that is
expected to occur in future
○ Prospective damages are awarded as ancillary to accrued damages
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○ X is exposed to radiation through Y's negligent conduct. X does not suffer

any immediate harm but there is a 30% chance that he may become seriously
ill within four years. X only has an action once the illness (and damage)
manifests itself.
○ Some present damage required (1st damage)
● Exceptions to once and for all rule (cannot claim in advance for these exceptions)
○ (1) Act that creates a nuisance
■ Can claim each time a damage occurs as a result of a nuisance
○ (2) Subsidence cases
■ Unlawful excavation = can claim each time damage occurs
○ (3) Continuing wrong
■ That causes damage = can claim as the damage occurs
■ E.g continued refusal to take back wrongly delivered sheep
(Symmonds v Rhodesia)
○ (4) Third-party liability
■ Future medical expenses as paid as they are incurred
■ RAF= qualifies what OFAR means in terms of the ACT and damage
& damage and when what must be claimed
● RAF does not apply to damage of assets or property - only to
personal injury
● Causes of action
○ Single cause theory
■ Every damage causing event constitutes only one cause of action
■ Emphasis placed on conduct that causes damage and not damage
self
■ All claims caused by same unlawful act
○ Alternative theory / Facta probanda approach (most used theory in practice)
■ COA = exists IF all requirements are present (facta probanda)
■ 1st damage must've occurred, not all damage
■ Two or more claims are compared
● if no substantial difference, then there is one cause of action
Examples
1. X assaulted by Y, suffers pain and suffering, humiliation and medical expenses: one cause of
action for all 3 forms of delictual action.
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2. X rides his bicycle and is injured when Y negligently runs into him. X suffers bodily injuries
and damage to bicycle: one cause of action both forms of harm
3. Y drives his car negligently, injuring X and causing damage to X's car: two causes of action
due to legislation. Damage to property (car) may be claimed from insurers whereas damages
for medical expenses, loss of income, loss of earning capacity, pain and suffering will be
instituted against RAF.
4. X and his child, Y, injured in collision with negligent Z: medical expenses already incurred
5. X and wife Y in a collision caused by negligent Z; X seriously injured and dies after 3
months, and Y injured. 3 causes of action: damage to property (car), medical costs and loss of
support due to wrongful death of a breadwinner - all claims flow from the same accident
however cause of action may rise at different times
- i.e. CoA for bodily injuries arises at time of accident while CoA for loss of support
only arises at the death of the breadwinner - cannot claim until then.
- What if X dies after 3 years? Fresh claim for loss of support? Conflict with once and
for all rules?
6. Y sprays poison on his farm and negligently causes death of X's cattle - they die at different
intervals. Prescription raised from first materialisation of damage. Not renewed with each
death.
- In negligence cases, the CoA is the unlawful act + damage. As soon as damage occurs all
consequent damage can be recovered.
7. X has recovered damages from Y, caused through Y's negligent conduct; claim finalised and
then X suffers further unforeseen complications.
- Once and for all = no further claim, despite X inability to anticipate such complications. Onus
on him to bear expense personally
8. X is unlawfully detained and assaulted by Y: Detention and assault different causes of action
Side note: Not discussed in class ↓
The collateral source rule and compensating advantages (res inter alios acta)
Sometimes damages and compensation thereof results in a gain for the plaintiff. I.e Sebastien was
injured in an accident that was caused by a negligent Gabby, whereby she pays him out R2000 in
medical expenses. Sebsatien’s nonna feels bad for him and gives him R1000.
Question: should the R1000 he receives from his Nonna neutralise the R2000 damages he received
from his offender ?
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There are 2 approaches to this problem

(1) The may hold the offender (Gabby) liable for all the damage she has caused OR
(2) That the offender is only responsible to compensate the aggrieved for the damage actually
sustained by him (Sebastien) = this would require apportionment of damage
The following benefits are NOT taken into account when a court apportions damages
● Benefits in terms of indemnity insurance and life assurance
● Benefits from a medical fund
● Contractually bound repairer
● Insurance money and payable pension paid to aggrieved parties, as a result of death of
dependent or breadwinner
● Discretionary payments of pension benefits to injured persons
● Donations
● Pension payments to a beneficiary in terms of the Military Pensions Act
● Benefits of concluding a beneficial contract on account of a delict
● Remarriage of a widow for the income capacity of her deceased husband
● The adoption of a child who claims for the loss of support on the account of the death of
his/ her parents
● Child support grants
● An award which is received as solace money (solatium)
These considerations are taken into account when apportioning in terms of the collateral
principle
● Medical benefits or sick leave where the medical scheme or employer is contractually or
statutorily obligated to do so
● A pension paid out to an injured person if the beneficiary had a contractual or statutory
obligation o such pension, as well as a disability pension
● The amount of damages someone receives from the compensation commissioner
● Medical treatment an injured person receives free off charge in a provincial hospital
● The marriage prospects of a widow who claims for loss of support due to the death of a
breadwinner
● Savings on income tax due to lost income
● Amount which the plaintiff received from the liability insurer of the defendant and the
amount the plaintiff received from the wrongdoer himself
● A plaintiff’s possible saving on living expenses on account of his injuries
● Accelerated benefits from the estate of the deceased breadwinner
● A welfare payment received in a foreign country by virtue of the fact that the plaintiff was
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injured and unable to fully support himself.
Based on the maxim res inter alios acta to disregard certain benefits that the plaintiff may
incur
- The conclusion should be that an advantage by the plaintiff be disregarded
- This principle is resolved in terms of public policy and equity
- The main takeaway from this is that a plaintiff should not allowed to recover an
excess of his actual loss
- This necessitates a balance/ weighing up interest and losses of the plaintiff and
defendant in line with community values
● Mitigation of loss
○ The principle is that the plaintiff should not incur damages for loss which is a factual
result of the defendant's conduct but is which could actually have been prevented if
the plaintiff had taken reasonable steps to do so
○ The standard of reasonableness is not very high
■ The plaintiff is obligated to take reasonable steps to limit the damage caused
by the defendants delict
■ Person who has taken reasonable steps to mitigate his loss may also recover
damages for any loss caused by such reasonable steps
■ Where the person has reduced his damages by taking reasonable steps in
mitigation, the offender is only liable to compensate for the actual loss
sustained even if person did more than the law required of him
■ Burden of proof to mitigate damages initially rests on the defendant
Quantum of damages
● The process whereby damages to be awarded are expressed in monetary terms

● The quantum of damages for pain and suffering must bear some relation in direct
proportion to the extent the loss suffered
● Damage is the object of an award
● Fairness and conservatism are also guidelines in the process of quantification
● Consideration of previous awards in similar cases are important guidelines
● Loss of income or support earned illegally (unlawful activity)
● Cannot claim patrimonial loss for loss of income or earning for unlawful
activities
● What is illegal in terms of this income is found in public policy
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● Frustration of expectation of such income is not legally seen as damage

● There is important distinction between loss of income and loss of earning
capacity
○ Loss of earning capacity is recoverable through damages
(Ferguson v Santam Insurance Case)
● Extended to action of dependents, although breadwinner was wrongfully and
culpable killed
○ But: if claim based on loss/impairment of earning capacity – not a
problem
○ So, dependants’ claim should be based on deceased’s earning
capacity and not tainted with immorality: Trading w/o liquor licence
v. selling heroine
○ Dlamini v MMF 1992 1 SA 802 (T) = Breadwinner earned income
as taxi-driver, but illegally = D has earning capacity and thus his
dependents (children) could claim for damages
Onus of proof for damages = In general the plaintiff must prove on a balance of probabilities that he
suffered damage and prove what the extent of that damage is
Non-patrimonial loss
● The detrimental impact or change in factual disturbance of personality interests deemed

worthy of protection by the law which does not affect the patrimony
● Usually described with reference to interest of personality = causes a reduction in the utility
of these personality traits
○ The rights of personality include: physical-mental integrity (e.g. shortened life
expectancy), liberty, reputation (e.g. defamation), dignity, privacy (e.g. trespassing),
identity and feelings.
○ Non-patrimonial loss has both subjective and objective elements
■ objective elements (where loss not only exists in the mind)
● your reputation amongst your peers is lowered) = external
manifestation
■ subjective elements (formed by individuals' reaction to the objective
impairment of their interests
● EG: the pain you feel after suffering an injustice such as bitterness
● These aren't readily predictable
○ Emotional reaction is an important factor in the assessment of the quantum of
damages
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○ Prospective injury to personality can be seen as the frustration of a justified

expectation that the quality or utility of personality interests will increase and not
diminish
Assessment of non-patrimonial losses
● Determined by a comparative method = similar to patrimonial loss

○ Before and after delict positions compared = In this way information is obtained on
the nature, seriousness, extent, intensity and duration of the objective part of the
losses as well as the impairment of the plaintiff’s feelings
○ There must be proof for this damage
■ “Once and for all” rule applies
■ Need to predict the kind of pain you will experience in future due to
impairment (expert – might need physio)
■ Time of assessment of damage: when 1st damage occurs
■ Plaintiff must mitigate lost
■ Form of damages is in money
■ Imperfect compensation
● However we recognise loss and try to compensate for the
inconvenience
In non-patrimonial loss, the affected interests do not have a direct or
natural monetary equivalent
● The use of comparable awards in comparable cases can assist in
fixing the quantum of damage – developing a kind of ‘market-value’
● Actio iniuriarum: applies to intentional infringement – satisfaction –
penal function
● Action for pain and suffering: applies to intentional or negligent
impairment – imperfect compensation – no penal function
○ In non-patrimonial loss, the affected interests do not have a direct or natural monetary
equivalent, but there are nevertheless sound reasons as to why a kind of imperfect
compensation is viable
● Recognised forms of loss
○ Pain and suffering = extends to suffering in the past and future
○ Shock (psychological injury and lesion) = the consequences of emotional shock are
usually identified with pain and suffering
■ Shock of a short duration is not normally actionable = it needs to be shock of
a serious nature
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○ Disfigurement = facial and bodily distortion

○ Loss of amenities = refers to anything that negates or diminishes the victims
enjoyment and quality of life
○ Shortened life expectancy = life expectancy of plaintiff has been reduced
■ The consciousness of the injured person plays an important secondary role
insofar as it is the only means through which he/she experiences the harm in
question
● Can only exist if it is subjectively experienced
■ Loss of amnesties is objectively identifiable and consciousness only comes
into the picture through affective loss, caused by the loss of amenities
● Theories of non-patrimonial loss (Bailey Case)
○ Abstract/ objective theory
■ Award measured by extent of injury
■ Typically expert will tell us how bad all of this is
○ Personal
■ Award measured by extent of loss of happiness
■ Compensation is awarded for pain subjectively experienced (like if you are
generally more sensitive person)
○ Personal function
■ Award measured by extent to which money can provide reasonable solace
■ Aimed to remove unhappiness
Unconsciousness and changed personality
● How do we award damage ?

○ Issue us that you need to be conscious in order for damage to occur = the operation of
a physical mind is needed for damage to incur
○ Thus conscious of awareness of the damage is needed
■ Pain does not exist if not consciously experienced
○ Twilight case = measure of communication with patient is sometimes possible
blinking (movement gestures)
○ Cabbage vegetative cases = permanently unconscious
○ Existence of injury not to be confused with compensability
■ Personal consciousness reduced - no or little insight into own condition - can
be compensated through damages
● Gerke & Collins cases
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○ In this case the plaintiff suffered brain injuries to an extent

that he would never regain consciousness again
○ He was totally unaware of his condition
○ The court then used English law and using an abstract
system and decided that subjective considerations do play a
role in in determining the quantum of damages
■ This case was later rejected in Collins v
Administrator, Cape
■ The court held that any damages awarded to a
plaintiff who cannot experience/ enjoy the
compensation amounts to a penalty to the defendant
■ Thus the subjective element must be present
■ The operation of an a conscious mind is thus a
prerequisite for the existence of a harm as pain
(physical) and suffering
■ Consciousness only excludes the subjective element and not the objective
part of the loss (NB this is only in terms of calculating/ quantifying damages)
● Assessment of damages in terms of physical and mental integrity
○ (a) The quantum (amount) of damages recoverable with the action for pain and
suffering must be in relation to the extent of the loss suffered
■ Take into account life expectancy, gender, status or culture, lifestyle and
degree of consciousness
○ (b) Must consider the object of an award = is it to counterbalance the unhappiness
experienced by the plaintiff or to help them overcome the setback
■ Court must have an object of an award when awarding damages in a
particular case
○ (c) Fairness and conservatism = merely states that decisions on awarding damages by
courts should not be made out of sympathy
■ Courts should rather ward to little than too much and should always disclose
their reasoning
○ (d) Locus classicus = taking the methods of calculations from previous courts into
account (Protea Assurance Case)
Iniuria = Injury to personality
● Intentional infringements to personality are usually claimed through the actio iniuriarum
● It is designed to award personal satisfaction for the impairment of a personality right
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● Object of an award = personal (psychological satisfaction) for offender to pay solatium

(solace money)
○ Effecting retribution for the injustices sustained by the plaintiff
■ In this case awards are are assessed on what is right and fair
■ You cannot count tears
● Defamation
○ Must consider both aggravating and extenuating circumstances in relation to the
extent o f the harm suffered by the plaintiff
■ Awareness of falsity of statements
■ Extent to which it was spread
■ Duration of its spreading
■ Repetition of statements etc.
General Class discussion (not for test purposes)

Liability without fault
DAMAGE CAUSED BY ANIMALS
1. Actio de pauperie = injury by domestic animal acting contrary to its own nature
2. Actio de pastu = damage caused by animal acting in accordance with its nature
3. Actio de feris = damage caused by wild animals
The actio de pauperie
- This action is at the disposal of a person who has been injured as a result of the conduct
of a domestic animal that has acted against its own nature and out of inner vice.
- This action has a Roman origin
- The noxal characteristic has fallen away
- Owner of the animal had to compensate or hand over the animal.
- * Today you may claim full damages from the owner.
(2) Causation
● The causal nexus/ link between conduct and damage is causation

○ Thus, one cannot be held liable if his act has not caused any damage of harm
○ Tip: do not use the word fault here
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● There must be a causal connection between the harm suffered and the conduct
● Determined from the facts of the case and relevant probabilities
● Test for determining causation
○ There is factual and legal causation
■ Factual causation is determining the link between to things
■ Determining a causal nexus is a question of fact
■ Based on relevant probabilities
● Question of ‘what is probable” should not be based on mathematical
thought process
● Factual causation: did the offenders conduct materially contribute to
the harm
○ Must first prove factual causation before you can prove legal
causation
● If the answer is yes then you move to legal causation
○ Normative enquiry into weather the factual link is strong
enough
○ Usually all approaches/ theories adopt the conditio sine qua non theory
Factual Causation
● But for test: conditio sine qua non

● An act is the juridically relevant joint cause of a result if the act in itself can be thought
away without the result disappearing simultaneously, but cannot, in conjunction with another
juridically relevant act or acts which can on their own be thought away without the result
disappearing simultaneously, be thought away without the result disappearing simultaneously
● This is a factual test
○ Sole cause
■ An act is the juridically relevant sole cause of a result if the act cannot be
thought away without the result disappearing simultaneously
■ “But for the conduct of A, B would not have suffered harm”
○ Joint cause
■ An act is the juridically relevant joint cause of a result if the act in itself can
be thought away without the result disappearing simultaneously, but cannot,
in conjunction with another juridically relevant act or acts which can on their
own be thought away without the result disappearing simultaneously, be
thought away without the result disappearing simultaneously
18
■ A and B jointly operate on C and C dies on the operation - A tried to stop

blood but was unable, B to remove tumour and succeeded”
● S v Daniels = 2 shots to back, 1 fatal shot to head = Can apportion
blame
● Omission and commission
○ Commission = mental elimination to see if the outcome would have been the same
without the act
○ Omission = hypothetical substitution to see if action would have prevented the harm
from occurring
● Criticism of But For Test (simply there to demonstrate that it can't apply to all delictual
cases that require a test for causation)
○ Results in clumsy, circular and indirect logic = thinking away one thing means you
have to think away a whole bunch of things
○ It fails in cases of cumulative and multiple causation = when there are multiple people
causing the same damage to the same person
○ Nothing more than an expression of a predetermined causal nexus
■ This test or practice of eliminating something the mind = doesn't erase the
predetermined
● When you inspect factual causation you must look at the conduct
○ If its a positive act (commission) = we think away or eliminate to determine factual
causation
○ Omission = you need to insert something (cum quo non)
■ Used to determine whether the absence of a thing caused a consequence
■ Determines if the wrongdoer would've done anything to prevent it
■ Applies a retrospective analysis and is recognised by courts
■ Not based on mathematics and pure science instead it is based on a more
common sense
■ S v Van As = policeman failed to look for missing children who later died
● Court asked if this failure or omission of him searching for them
resulted in their deaths
● Would him searching for them have resulted in their deaths - what
would the reasonable person have done ?
○ Note: never refer to reasonable conduct
● (1) First determine whether D could have done anything to prevent
the relevant consequence
● (2) Then weather the reasonable person in the position D would have
prevented the consequence
19
○ Lee v Minister of Correctional Services = demonstrates a more flexible approach to

the but for test
○ Court held that a strict approach to this test would result in injustice and thus the
flexible approach is required
○ Facts
■ P detained in max security prison for around 5 years
■ While in prison, became ill and diagnosed with TB
■ After release, instituted action for damages
■ Said D/s servants at prison had by their conduct caused him to become
indicted with TB
■ He succeeded with his claim in the HC
■ HC decision was overturned by the SCA: factual causation was not proved
■ CC distinguished between factual and legal causation
● Mechanical application of but for test may lead to injustice, therefore
flexibility required
● There is no magic formula for all of the cases - depends on facts of
each case
● Factual causation in its simplest form: weather one fact flows from
another
● No need to produce policy considerations
○ Material consideration test can be used to substitute the but for test
Factual causation is = Am I the cause ?

Legal causation is = How much of the cause am I ?
● Legal Causation
○ We use it to limit the accountability of the wrongdoer
■ You cannot hold someone accountable for endless consequences of a conduct
● punishment has to stop somewhere
○ Legal causation acts a s liability break = NB for test purposes
○ Sidenote: there are alway 2 trials = one for merits and one for sentencing
● 6 approaches to legal causation but the courts determine a flexible approach
○ Flexible
■ S v Mokgethi case
● A robber shot a paraplegic an he later died from septicemia
20
● There is no single and general criterion for legal causation which is

applicable in all instances = A flexible approach is accordingly
suggested
● Q: is there a close enough relationship between the wrongdoers
conduct and its consequence for such consequence to be imputed to
the wrongdoer in view of policy considerations based on
reasonableness, fairness and justice
■ A court is not bound beforehand to a single theory, but can choose case to
case in accordance with policy considerations
■ This means that even where a consequence is found to be foreseeable and a
direct consequence of the act, flexibility would enable a court to deny
liability should the result appear to be so unjust or unfair that it can be
regarded as untenable
○ Adequate causation = Satisfactory or sufficient
■ Adequate connection to the conduct = act is a legal cause of a situation id,
according to human experience, in normal course of events the act has the
tendency of bringing about that type of consequence
■ Was the damage reasonably to be expected to be a consequence of the act
■ There is not much difference between this and the test of reasonable
foreseeability
● Both refer to a result normally to be expected
■ Were the consequences ‘juridically relevant’ with reference to the cause
● If it is a atypical - there is no adequate relationship between the act
and the result and thus cannot said to have been the cause of the
result
○ Direct consequences = Speaks more to factual causation
■ An actor is liable for his direct conduct
■ Limited to physical injury because of potentially wide liability
■ A consequence need not immediately follow the cause immediately in time
and space in order to constitute a direct consequence
■ Must not be broken by novus actus intervenes
■ This has been limited by the foreseeability doctrine
○ Fault = the wrongdoer is only liable for for those consequences in which he had
fault
■ Negligence is determined by weather the wrongdoer would reasonably
have foreseen and prevented the nature experienced in the particular
case
21
■ Intent and negligence cannot serve as satisfactory criteria for legal

causation
○ Reasonable foreseeability = Van Rensburg Case
■ Was the consequence, as well as the causal progression between the act and
the consequence, at the time of the act foreseeable with such a degree of
probability that the consequence can, in the light of the circumstance,
reasonably be imputed to the alleged wrongdoer?
■ Van der Walt and Midgley interpret the approach of the courts as follows:
● only the general nature or the kind of harm which actually occurred
must have been reasonably foreseeable. The exact extent or precise
manner of occurrence need not have been reasonably foreseeable
● Where events took a completely unusual course, judge has to decide
whether causal progression was foreseeable with sufficient degree of
of probability to hold D liable for
■ Should not be seen as the single decisive criterion establishing causation
○ Novus actus interveniens (new intervening factor)
■ Is an independent event which after the wrongdoers act has been concluded,
either caused or contributed to the consequence concerned
■ New sequence disturbs the event
■ A novus may be brought by the culpable conduct of `p himself, a 3rd party or
force majeure
■ Can interrupt a factual or legal nexus legal causation requires that there isn't
any new trouble that causes us not to blame the factual wrongdoer
■ This concept is important as it limits the wrongdoers liability
■ An event will qualify as a novus only if the event is not reasonably
foreseeable
■ If the intervening cause was indeed reasonably foreseeable at the moment of
the act, such an event may not be considered to be a novus
■ Where a novus completely extinguished the causal connection = the actor
goes free
■ EG. X administers slow poisons to her husband, but then Z shoots and kills
him - where is the causal connection
● Talem Qualem Rule = you must take your victim as you find them (egg-skull cases)
○ Where the plaintiff has a weakness suffers a more serious injury of the offender's
conduct, than they would have, had they not had such weaknesses
○ Should also be liable for the harm which may be ascribed to the existence of the
weakness concerned
22
○ Wilson v Brit = negligent pole struck P on head, by the had a previous brain surgery
from a stabbing
■ Once proved D acted wrongfully and negligently, their responsibility
embraces in harm flowing form a latent physical condition of the plaintiff,
however unforeseeable or abnormal
○ Smit v Abrahams = accepted the practice of the flexible approach and imputed
damages to the defendant despite the damage not being foreseeable
■ Plaintiff was a financial egg skull who’s car had been written off in an
accident
■ He did not have money to replace the car so he rented one
■ The court ruled that he was able to claim the expenditure he incurred from
renting the car, from the respondent
(3) Conduct
● In order to constitute a delict, a person must have caused damage or harm to another person
by means of an act or conduct
○ It is the damage causing event in a delict
● (a) Conduct is a voluntary human act or omission
○ It must be human and not that of an animal
■ Can use an animal as an instrument
■ Juristic persons act through organs/ human and may thus be held liable for
such acts
● I.e. permission give by boss to a staff member
● (b) It must be voluntary and susceptible to the control of the will of the person concerned
○ Control by human will = means the person in question has the mental ability to
control his muscular movements
● Must be capable of making a decision about his conduct
○ Does not mean that the person has willed or desired this result
○ It is the voluntary act that is closest to the harmful consequence that is considered
and relevant and it is thus unnecessary to consider prior voluntary acts
○ Involuntary conduct = automatism
■ Automatism
● Defence of having acted involuntarily or was rendered incapable of
controlling their movements at the time
23
● Conditions underlying automatism

○ Compulsion: absolute (man overpowers you, grabs your
hand and forces it to stab someone = you had absolutely no
control over your muscular movement) or relative (someone
threatens you to key someone's car = you still used your own
muscular control)
○ E.g Unconsciousness, fainting, sleepwalking, seizures,
hypnosis mental disease, serious intoxication
■ It will not succeed in a case of actio liberio in causa
○ This is where you establish an intention/ negligence before
the wrongful act/ conduct
○ Defendant intentionally created the situation where he or she
acted involuntarily
○ This is also where the plaintiff demonstrates prior negligent
conduct by regarding state of automatism and where he/she
would reasonably have foreseen the harm
○ Here the goal is to prove that the conduct was voluntary and
not mechanical
○ “sane” automatism = not a result of mental illness
■ Onus is on the plaintiff to prove that the defendant
acted voluntarily
● This defence does not exclude conduct but only wrongfulness or fault
○ Molefe v Mahaeng = court held that there was no evidence
that a reasonable person in the defendants position could not
have seen the possible blackout whilst driving
■ Sane automatism = plaintiff must prove that the
defendant acted voluntarily
■ Mental illness = defendant must probably prove
absence of conduct
● Must be an act commission / omission
○ Law defines conduct: normative approach is followed, not a value base approach
● Side note: Look at footnote 30 for extreme dissociation
○ S v Mahlinza = extreme dissociation
■ Commision: Positive conduct
■ Omission: negative conduct
● Liability is more restricted - law is more hesitant to find legal duty
to act positively to prevent damage
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(4) Fault
● It takes two forms = in the form of intent or negligence

○ It is the subjective element in delict but he test for it is objective in nature
○ Fault refers to the legal blameworthiness (negligence) or the reprehensible
disposition of a person who acts with intent or negligence
○ Deals with blameworthiness/ culpability or reprehensible state of mind
● Court follows a pragmatic approach to it, meaning either of these two elements can be dealt
with first = FNB v Duvenhage
● Intent (dolus) = the reasonable person would have acted differently if the wrongful causing
of damage would have been foreseen and prevented by the reasonable person
○ Objective
■ Two aspects
● Direction of will
● Knowledge of wrongfulness = subjective
● Negligence (culpa) = Blameworthiness attached to the conduct of an accountable person, if
the reasonable person in their position would have affected differently
○ Reprehensible state of mind of an accountable person directing her/hers wrong result
whilst conscious of the wrongfulness of his her conduct
● Accountability = for a person to be held accountable
○ they must have the necessary mental ability to distinguish between right and wrong
○ can also act in accordance with such appreciation
● Without accountability there can be no fault (it is a prerequisite/ basis or existence of fault)
○ With no accountability there can be no fault
● Who may lack the necessary capacity ?
○ Under the age of 7 Infants = irrebuttable presumption and are thus not accountable
○ Between 7 and 14 = rebuttable presumption = lacks accountability
○ Between 14 and 18 years of age considered to be adults for purposes of accountability
○ Mental illness = where a person, because of mental illness or disease cannot
distinguish between right and wrong at a given moment. Or where they can make
such distinction, cannot act in appreciation of the distinction
■ Can be difficult to prove
○ Intoxication = people under the influence of intoxicating liquor or use of drugs and
MAY BE culpae incapax
○ May be held accountable for negligent consumption
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○ Provocation = where a person under provocation loses his temper and becomes
passionately angry, he may be said to lack accountability
■ Get so angry and cannot think clearly - blind with rage
● Contributory Fault
○ While fault refers to the defendant's conduct, contributory fault refers to the conduct
of the plaintiff
○ Primarily relevant in limiting the extent of the defendant's liability
○ Regulated by the Appointment of Damages Act
○ Not an actual division on damages award between D and P but refers more to the
reduction of damages received by the plaintiff because of his own fault (negligence)
regarding the damage suffered
○ D, who has intentionally caused harm to P, cannot raise defence of contributory
negligence on P's part (as at common law)
■ Defence of contributory intent
● Where P intentionally contributed to own loss while D merely
negligent - P forfeits claim
● Where D caused loss intentionally and P's conduct also intentional -
Act only appears to make provision for defence of contributory
negligence and not defence of contributory intent
● But: Greater Johannesburg Transitional Metropolitan Council V
ABSA Bank Ltd t/a Volkskas Bank 1997 2 SA 691 (W) - held that
defence of contributory intention could succeed where both P and D
acted with intention
○ APPORTIONMENT OF DAMAGES
■ Not possible literally to apportion damages - P receives a reduction in
damages
■ Criterion = reasonable person test for negligence
■ Each party's degree of negligence is determined by expressing its deviation
from the standard of the reasonable person as a percentage
■ Act applies iro damage partly caused by fault of P and partly by fault of D
■ Does not apply to strict liability (liability without fault)
■ Comparison of respective degrees of negligence - expressed as deviation
from standard of reasonable person as percentage - two percentages
compared to allocate responsibility iro damage
■ Cases: South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A)
● Basic principles for the apportionment of damages
26
● As far as the objective reasonable persons test applies, one is dealing

with a standard deviation care which applies to all persons in the
community
● Criterion for court to apportion damage is section 1(1)(a)
● There is a need to determine if there is a causal nexus between the
plaintiff/ defendant and the damage = determined with usual test and
NOT the previous ‘ last opportunity rule’
● Court do not attempt to deal with degrees of causation
● If the court is satisfied that the negligent acts or omissions are of both
parties are causally connected to the damage the question of
causation is resolved
■ Jones NO v Santam Bk 1965 (2) SA 542 (A) = Test for negligence was
described without foreseeability and preventability of damage
● Deals with determination of negligence with respect to children
● This criterion for negligence is always objective and the test of the
reasonable person is applied (diligens paterfamilias)
● Thus it requires a 2 step enquiry
○ (1) Did the child act with culpa = did they act with the care
required by a reasonable person
○ (2) If the first enquiry isn't met then it must be asked whether
the child is accountable
● It was unnecessary to enquire into the extent to which the defendant's
conduct deviated from the standard of a reasonable person
● In order to establish the respective degrees of either parties
negligence, the the carefulness of the conduct of each party must be
measured separately against the against the standard of the
reasonable person
■ AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A)
● Confirmed the approach in the Smit case
● The degree of fault to the plaintiff automatically determines that of
the defendants
○ It is argued by authors that the approach taken in the Jones
case is more preferable
■ General Accident Versekeringsmaatskappy SA Bk v Uijs 1993 (4) SA 228
(A) = Court held that it is impermissible to reduce a defendant's liability to a
minor child by setting off, against the claim brought by its parents on the
27
child's behalf, the alleged personal liability of the parent arising from the
latter’s contributory negligence
● Fault in respect of damage or damage causing event
○ Q: What if you are not responsible for the damage causing event, but your negligence
increased your damage
■ Not wearing a seatbelt in car accident
■ Bowkers Park v SAR and H = “the section leaves no doubt that contributory
negligence relates to fault with regard to damage and not fault with regard to
the damage-causing event”
○ Contributory negligence of the plaintiff is only relevant insofar as it has led to an
increase in the damage
■ Section 13 = "For the purpose of this section ‘fault’ includes any act or
omission which would, but for the provision of this section, have given rise to
the defence of contributory negligence."
■ The Act erroneously construes fault as an act or omission.
● Fault is generally the legal blameworthiness of a person for their
wrongful conduct.
■ Apportionment Act does not apply to contractual breach
● Thoroughbred Breeders’ Association of South Africa v Price
Waterhouse
○ P sued his auditor for breach of contract
○ His complaint was that, during the routine annual audit, the
auditor failed to discover that the plaintiff’s financial director
was systematically stealing from him – auditor’s defence was
inter alia that the P was himself negligent in his control of the
financial director and that, due to his contributory
negligence, his claim was subject to reduction in terms of the
Apportionment of Damages Act
○ The essence of the court’s decision was that the Act was
historically not intended to apply to claims for breach of
contract, but only to amend the law of delict
○ P’s negligent conduct AFTER the harmful event causing
damage is not the subject of apportionment ito
Apportionment of Damages Act rather a matter of legal
causation
○ Focus of Act for purposes of contributory negligence is on
pre-delictual negligence.
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● Voluntary assumption of risk

○ Under wrongfulness, we will discuss the meaning of consent to injury and consent to
the risk of injury as a ground of justification (volenti non fit inuria)
■ This negates wrongfulness [eg. sports players].
○ Such consent is sometimes referred to as voluntary assumption of risk
○ In respect of contributory fault, voluntary assumption of risk is a ground that cancels
fault and is not a ground of justification
○ Where there is an actual assumption of risk, the injured party chooses freely, with full
knowledge of the danger, to run the risk
○ Not a negligent but an intentional exposure to risk (contributory intent – directed will
to prejudicial outcome – not lawful goal eg save baby in burning house)
○ Where, however, the injured party should have been aware of the danger, but was not,
there is clearly no assumption of risk, but only contributory negligence
○ Where a P acts with contributory intent, the fault of the D (in the form of negligence)
is eliminated by the contributory intent of P
■ i.e.,although the D is also at fault, he is not held liable towards P because P
himself acts intentionally
○ Little authority for the so-called defence of contributory intent
○ The principle that the conscious taking of an unreasonable risk by the plaintiff cancels
fault on the part of the defendant, is a principle of common law and functions
independently of the Apportionment of Damages Act
● Rescue cases
○ D negligently sets a house on fire
○ P runs into the burning house to salvage his jacket
○ P is injured by the flames. D is not liable for Ps injuries, because Ps contributory
intent will cancel D negligence since his exposure to the flames to save a jacket can
be regarded as consciously unreasonable
○ On the other hand, where P voluntarily exposed himself to such a risk of harm in
order to save a baby, a different picture emerges because P’s exposure to the risk was
then consciously reasonable (acting towards a lawful goal) and he therefore lacked
contributory intent
■ D might be liable because he acted negligently since a reasonable person
would have foreseen that someone might go into the house to save the baby,
and would have acted differently by not setting the house alight
○ Similarly, if P was a fireman who had to enter the house in the course of performing
his duties, D might well be liable because of his negligence since he should have
foreseen that the fire brigade would have to intervene
29
● Moral and social pressures may induce a person to expose himself to a risk in an effort to
rescue another from a danger created by the Ds negligent conduct
● This is sufficient to negate voluntary assumption of risk
● Where the danger is so extreme as to be out of proportion to the value of the interest
protected, the rescue operation is unreasonable and may constitute contributory intent or
negligence on the part of the rescuer
● Forms of liability without fault
○ Generally sued for intentionally causing harm or not paying attention
○ Fault theory: cannot be delict without fault
○ Liability without fault?
■ Industrial revolution hugely increased exposure of individuals to risk of harm
[eg self driving cars]
■ Growing need for protection lead to the development of liability without
fault/risk/absolute/strict liability
○ Fairness considerations
■ Creation of risk
■ Advantages risk creator enjoys from products (profit)
■ D exercises control over enterprise
■ transfer of risk to insurer
● Characteristics of forms of liability without fault

○ (1) No fault required (act which is wrongful and causes harm)
30
○ (2) Force Majeure (act of God) and fault on part of prejudiced person
generally recognised as defences
○ (3) Strict liability normally imposed by statute or case law for activities
creating extraordinary increase in risk of harm to community
○ (4) Statutory strict liability – extent of liability normally curtailed by fixing
maximum amounts of compensation [eg trapped miner]
○ (5) No fault liability mostly restricted to damage to life, limb and property –
therefore does not include
● Animals
○ (1) Actio de pauperie - injury by domestic animal acting contrary to its own
nature
○ (2) Actio de pastu - damage caused by animal acting in accordance with its
nature
○ (3) Actio de feris - damage caused by wild animals
Vicarious Liability
● The strict liability of one person for the delict of another

● Indirectly liable for another’s damage as a result of a particular relationship between the
persons
○ (1) employer – employee
○ (2) principal – agent
○ (3) motor-car owner – motor-car driver
○ (4) state – public school
● Such delicts occur frequently (very relevant for practice)
● (1) Employer – employee
○ Where an employee acting within the scope of his employment, commits a delict, his
employer is fully liable for the damage
○ Rationale for liability
■ Own fault of employer (fault in the choice of employee) Interest/profit theory
(enjoy benefit + bear burden) Identification theory (E extension of R)
■ Solvency theory (R normally better financial position than E)
■ Risk/danger theory (entrusting E with work creates risk for harm)
○ 1. Existence of employer-employee relationship at time of delict contract of
service must exist
■ no need for remuneration but power to exercise control/authority (eg school
prefect).
○ 2. Employee must commit a delict (all 5 elements present)
31
■ D can raise delictual defences

○ 3. Employee must act within scope of employment
■ acts in the course (execution/fulfilment) of his duties ito employ contract
(sufficiently close connection)
■ E Promote own objectives/interests exclusively (completely unconnected
with those of R) – police drag/farm fire
■ the traditional view was that vicarious liability for intentional wrongdoing is
excluded
■ K v Minister of Safety and Security:
● K. sued to recover damages from the Minister of Safety and Security
from being raped and assaulted by three uniformed and on-duty
police sergeants
● Application for leave to appeal against an order of the SCA. The
applicant had instituted an action for damages in delict against the
Minister, seeking to hold him vicariously liable for her rape at the
hands of three policemen, employees of the respondent. O'Regan J,
for the Court, held that the common law of vicarious liability must be
applied by the courts in such a way that it is consistent with the terms
of the Constitution as well as the spirit, purport and objects of the Bill
of Rights. She concluded that although the rape was a deviation from
the employment duties of the policemen, there was a sufficiently
close connection between their employment and the wrongful
conduct. The Minister was found to be vicariously liable. The matter
was referred back to the Johannesburg High Court for determination
of quantum of damages
● Creation of risk (exploit employment for own benefit
● (2) Principal – agent
○ P who elects a representative and presents him as a reliable person should bear the
risk of possible dishonest representation
○ Agent = Someone who is authorised to perform a legal act on behalf of his principal
○ Delict usually misrepresentation
○ Requirements
■ (1) Principal-agent relationship
■ (2) Agent must have committed a delict
■ (3) Agent must have acted within scope of authority
● (3) Motor-car owner – motor-car driver
32
○ Owner liable where he allows someone else (who is not his employee) to drive his car
and the driver negligently causes an accident,
○ Accident caused negligently
■ (1) Owner must request driver to drive or supervise driving
■ (2) Vehicle must be driven in interest of owner (patrimonial and social)
■ (3) Owner must retain right/power of control over manner in which vehicle is
driven
● (4) State – public school
○ State exclusively liable for damage or loss caused by delict (eg, by teachers or
learners) associated with an educational activity of a public school.
○ Statutory vicarious liability created by South African Schools Act s 60(1):
■ State will be “liable for any damage or loss caused as a result of any act or
omission in connection with any educational activity conducted by a public
school and for which such public school would have been liable but for the
provisions of this section”
● CPA
○ Previously had to prove all elements of delict to sue for harm from product
○ CPA changed this position
■ Manufacturer of goods held liable for harm caused to consumers by unsafe or
defective goods, irrespective of presence or absence of negligence – strict
liability
■ Don’t need to prove someone at the factory made a mistake
■ The fact the product was on the shelf, you consumed it and your XP harm
entitles you.
● Common law principles changed by statute because of policy
considerations, fairness considerations and development of the law
● EXAMPLES
○ (1) Pusha P is employed by Daytona as a driver. Pusha transports goods between
Pretoria and Johannesburg. One day, on his way to deliver a consignment to a
supplier in Johannesburg, he decides to take a detour to Kempton Park to visit his
girlfriend Donda. Because of his excitement to see bae, he drives at an excessive
speed while still texting Donda. Pusha P collides with Adonis. Adonis’ car is a
write-off. Who is liable for the damage?
○ (2) Depay is the owner of two German Sheppard's. Depay walks the dogs on a daily
basis. One day, Frenkie walks past and throws a stone at the dogs. One of the dogs
jumps onto Frenkie, causing him to fall backwards and twist his ankle. Frenkies’
33
medical treatment amounts to R5 000. Will Frenkie succeed in an action against

Depay?
○ (3) Mabena, an on-duty policeman, arrests Pablo, a pedestrian. Mabena alleges that
Pablo is a car thief. Pablo is released after two hours and not charged. Can anyone be
held delictually liable? If so, who?
Examples
After suffering a traumatising break up, Kanye East decided to check himself into a mental
institution. One morning, while medicated, he takes one of the vehicles from Weskoppies
Psychiatric Hospital and drives into town.
At the same time, Skete Davidson (aged 17) is walking his younger sister, Kimberly (7) to school.
The two of them walked alongside the road at a leisurely pace when the motor vehicle driven by
Kanye East came speeding down the road. Kanye East cuts the corner and drives into Skete and
Kim, seriously injuring them.
Question 1
After being bumped by Kanye East, Kimberly picks up a few stones and starts throwing them
towards Kanye. While doing so, Kim also damages the vehicle by breaking the windows and
denting the doors. Is she at fault?
Answer
Kim is 7, and a person under this age in culpa in capax - this is an rebuttable presumption that she
lacks accountability. Whether she is at fault or not will have to be investigated further, but in terms of
accountability there is a rebuttable presumption that she is not at fault.
Question 2
Just before Kanye bumped into them, Skete Davidson was busy on his phone, engaged on the
latest twitter thread for #MenAreTrash. While laughing at one of the memes, he fails to pay
attention to the road and doesn't check both sides before crossing. Is he at fault for any damage
suffered to the vehicle driven by Kanye?
Accountability is the basis for fault. Skete is 17 and for purposes of the law he is presumed to be
culpa capax. If he wishes to prove that he is culpa in capax, he will need to prove it in court and until
such time that happens he is presumed to be accountable.
34
Question 3
Kanye East, before his traumatic break up, was regarded as a genius. But since the trauma, he
has been suffering from a mental illness which was diagnosed at Weskoppies. On the day he
stole the hospital vehicle, his nurse failed to administer the correct dosage of his medication to
help him manage his mental illness. While driving the stolen vehicle, Kanye notices Skete
crossing the road while distracted. Kanye can see that a collision is inevitable but fails to stop. Is
he at fault?
Mental illness may be used to exclude accountability, which is the basis for fault. Despite not taking
the meds there is no automatic assumption that he isn't accountable. However, he foresaw the damage
and its consequences, as him not taking his meds did not exclude him from causing the accident. Thus
he cannot rely on his mental illness.
Question 4
Assume Kanye East's motivation for escaping from Weskoppies was to get back his lost lover
from her current boyfriend Bruce Brenner. While driving, Kanye remembers that Bruce used to
be an athlete and this intimidates him. He then decides to get some "liquid encouragement"
from the local tops and consumes several millilitres of a mixture of Red Bull and Jagermiester.
The alcohol begins to take effect and he feels a bit more confident. He then speeds towards the
home of Bruce Brenner to "give him a piece of his mind". It is at this stage where the collision
with Skete and Kim occurs. Is Kanye at fault ?
South Africa is a zero tolerance nation, although he was intoxicated and MAY exclude fault there - he
cannot. He chose to drink alcohol and could reasonably have foreseen the consequences of his actions.
Question 5
Bruce Brenner, who now works as a scientist since his athletic career ended, is at home on this
particular day after being suspended from work for his angry outbursts. His colleagues have
described him as "going green" during these fits of rage where he tends to "smash" things.
Bruce also happens to be the step-father of Kim and Skete and witnessed the entire collision
from his kitchen window. Bruce becomes angry as he sees this and becomes even more
infuriated once he realises it's Kanye East who was driving. He then grabs a meat hammer and
proceeds to the scene of a collision and unleashes all his fury on the vehicle driven by Kanye. Is
Bruce Brenner at fault ?
35
Accountability is the basis of fault. Provocation may be used to exclude accountability.
Intent
● Refers to the reprehensible state of mind of an accountable person directing their will at a
wrongful result they cause, while conscious of the wrongfulness of this conduct
○ Elements of intent
■ Direction of will
● Direct intent (dolus directus) is where the wrongdoer actually desires
a particular consequence of their conduct (it doesn't matter whether
the result is certain or possible)
● Indirect intent (dolus indirectus) is where the wrongdoer direct
intends the consequence but at the same time acknowledges that
another consequence will inevitably occur
○ I don't intend to harm your clothing when I shoot you but I
do anyways
● Dolus eventualis = where the wrongdoer does not desire a particular
result but foresees the possibility and reconciles themselves with that
fact
● Luxuria (conscious negligence) = where the wrongdoer foresees the
possibility but does not reconcile themselves with the fact
○ Even if you can foresee, even if the reason is unreasonable to
other peoples = its like if I complement a girl on losing
weight but then she commits suicide
● Dolus determinatus = direct a will and carry it out / decides on an act
and carries it out
● Dolus indeterminatus = take a bomb in a mall to kill people but
you didn't know how many or who you’d kill
● Consciousness (knowledge of wrongfulness)
○ Intent is a technical term which refers to a willed act, which in addition is subjectively
known to be wrongful.
○ Must know (realise) or at least foresee possibility that conduct is wrongful - ie,
conduct is contrary to law or is an infringement of another's right(s)
○ Remember ignorance (generally) isn't a defence in the law
○ A mistake usually excludes intent because there is no conscious wrongful conduct
■ eg. mistakenly acting in private defence (putative defence).
36
○ Motive = reason for someone's conduct (facts behind formation of will)

○ serves more as evidence of direct intent or proof of consciousness of wrongfulness
(evidentiary value)
○ Not to be confused with intent
■ Can have a good motive but still act with intent (i.e. directing will with
knowledge of wrongfulness of act)
● Material mistake = a casual chain is so different from the foreseen one that the former cannot
reasonably be regarded as falling within the actors own perception
○ Material = no intention
○ Immaterial plan from the foreseeable or causal nexus = intent present
■ Aims to shoot someone in the head but the bullet hits a rock and the shoots
the same guy in the chest = the intent to kill him was still there, irrespective
of where he shot him
○ Material requires there to be intent, and then immaterial requires no intention
● Negligence
○ The blameworthiness attaching to the conduct of an accountable person, if the
reasonable person in their position would have acted differently and the reasonable
person would have acted differently if the wrongful causing of damage would have
been foreseen and prevented
○ Here we deal with an objective test
○ Conduct is negligent where actor does not observe the degree of care which the law
of delict requires (ie the reasonable person)
■ Where a person fails to adhere to the standard of care legally required of him,
we blame a person for their careless or thoughtless conduct or attitude
○ To determine if a person has acted carelessly and thus negligently, we use the
standard of the reasonable person (i.e. an objective test)
■ Would the reasonable person in the position of the defendant acted
differently?
■ A: the reasonable person would have acted differently if the unlawful causing
of damage was reasonably foreseeable and preventable.
○ Kruger v Coetzee
■ (a) A reasonable person in the position of the defendant:
■ (i) Would foresee the reasonable possibility of his conduct injuring another in
his person or property (and causing him patrimonial loss); and
■ (ii) Would take reasonable steps to prevent/guard against such occurrence
■ (b) The defendant failed to take such steps
37
Negligence
● The reasonable person

● A fictitious person, a concept created by law to have a workable objective norm for society
legal personification of those qualities which the community expects from its members in
their daily contact with one another
● Fictional reasonable person has certain minimum knowledge and mental capacity to
appreciate dangerous potential of certain actions – objective standard
● Concept of reasonable person must adapt to changing circumstances Objective standard
● We rely on the court’s judgement of what a reasonable person is as they place themselves in
the position of a diligens paterfamilias
● Children
○ No reasonable child test
■ Rather reasonable person in the position of the child (or expert)
■ To determine if a child acted negligently, we consider if the child conducts
measures up to the standard of a reasonable person.
■ The fact that the actor is a child is irrelevant
■ A child’s capacity for fault must be determined with due regard to youthful
inability to control irrational or impulsive acts [knowledge and experience not
to be confused with maturity and judgement]
● Experts
○ The negligence of an expert is sometimes referred to as professional negligence
Eg the reasonable accountant, dentist, attorney, surgeon, police man, engineer, etc
■ Regard is had not to the highest degree of expertise ↓
○ Van Wyk v Lewis 1924 AD 438: “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
● Imperitia culpae adnumeratur
○ Where a person undertakes an activity which expert knowledge is required while he
knows or should reasonably know that he lacks the requisite expert knowledge and
therefore cannot undertake the activity
○ EG : You fly and crash a plane w/o piloting expertise
○ Not always negligent – eg pilot suffers heart attack and you take over
○ Lay person should act as a reasonable layperson in the circumstances – if exercise
care of reasonable layperson, not negligent
● Intent (dolus)
38
○ Reprehensible state of mind of an accountable person directing her/his will at a

wrongful result she/he causes, while conscious of the wrongfulness of her/his conduct
■ Two aspects:
● Direction of will and knowledge of wrongfulness (subjective)
● Negligence (culpa/ narrow)
○ Blameworthiness attached to the conduct of an accountable person, if the reasonable
person in their position would have acted differently
○ The reasonable person would have acted differently if the wrongful causing of
damage would have been foreseen and prevented by the reasonable person
○ Objective
● The overlap of intent and delict
○ The standard of care which the reasonable person would have exercised, which means
that negligence is thus simultaneously present
○ Whether someone who has killed another intentionally may be convicted of culpable
homicide (negligence), and not only murder?
■ S v Ngubane (intoxication, provocation and stabbing) = intent and
negligence may be present simultaneously
● Intent and commission
○ Negligence as a form of fault (culpability) should not be confused with an omission
which is a form of conduct
○ Negligence is not a form of conduct (although negligence is determined by
investigating the conduct)
○ Negligence arises if the reasonable person would have acted differently
○ Omission can be intentional or negligent
○ Commission can be intentional or negligent
● Negligence: Foreseeability and Prevention of Damage and Harm
39
● Where harm was reasonably foreseeable, did the defendant take adequate and reasonable
steps to prevent the materialisation damage?
● The mere fact that foreseeable damage materialised does not necessarily mean that steps
indeed taken to prevent the damage were unreasonable
○ The degree or extent of the risk created by the defendant
○ The gravity or seriousness of the possible consequences if the risk of the harm that
materialises
○ Utility or the importance of an actors conduct (ambulance in traffic jam)
○ The burden pertaining to the cost and difficulty of eliminating risk (closing gates so
dogs do not attack strangers)
■ If you could have prevented something - would you be negligent Yes or NO?
= YES!
NB footnote 169: In Herschel v Mrupe 1954 3 SA 464 (A) 477 Schreiner JA stated: *[T]he
circumstances may be such that a reasonable man would foresee the possibility of harm but would
nevertheless consider that the slightness of the chance that the risk would turn into actual harm,
correlated with the probable lack of seriousness if it did, would require no precautionary action on
his part [and if the harm, if it happened, would probably be trivial, the reasonable man might not
guard against it even if the chances of its happening were fair or substantial." An example may be
found in Wasserman v Union Government 1934 AD 228: A swarm of bees hived in the roof of a
police station. While a policeman attempted to locate the bees, he was stung on his lip and died.
The question arose whether the defendant was negligent in not driving out the bees. The court held
that the reasonable person would not have taken steps to prevent the harm from occurring. From the
judgement it may be concluded that although it was reasonably foreseeable that someone could be
stung by a bee, death was not reasonably foreseeable; and because the reasonable person would not
40
have guarded against someone merely being stung by a bee (slight harm) the defendant was not
negligent. See also De Jager v Taaf Hamman Holdings (Edms) Bk 1993 1 SA 281 (O) where it was
found that the risk of danger to the general public created by an independent subcontractor was
foreseeable, but that a reasonable person in position of first defendant would not have taken steps to
prevent such danger. See all Oosthuizen y Van Heerden Van Bush Africa Safaris 2014, 6 SA 423
(GP) 432-433 where the risk of infecting a neighbour's cattle with "snotsiekish From blue
wildebeest was very low. (See further Van Rensburg Juridiese Kousaliteit 252-253; Van der Walt
and Midgley Delict 254 ff; Fagan Aquilian Liability
● Negligence judged in light of surrounding circumstances

○ The negligence (or otherwise) of conduct may only be evaluated in the light of all the
relevant circumstances of a particular case
○ Q: Whether D’s behaviour was in accordance with standard of reasonable person in
their position
○ Durr v ABSA = court held that it would be regarded as negligent to engage
voluntarily in any potentially dangerous activity unless one has the skill and
knowledge usually associated with the proper discharge of the duties connected with
such an activity
■ Dealt with an investment broker and the SCA approved of the approach in
Van Wyk v Lewis and emphasised that it is for the courts to determine what is
reasonable and what is not
● The court will pay attention to the views of the profession but is not
bound to adopt them
○ Doctrine of sudden emergency:
■ law cannot expect a person who has to act swiftly to show the same
judgement and skill as a person not acting in an emergency.
● I. The wrongdoer must have faced a situation of imminent peril
● Ii. Wrongdoer must not have caused the perilous situation by his own
negligence or imprudence
● Iii. The wrongdoer must not have acted in a grossly unreasonable
manner
(5) Wrongfulness/ Unlawfulness
● What is wrongfulness all about ?
41
○ Wrongfulness / unlawfulness refers to the causing of harm that was unreasonable/

unacceptable for the law of delict to impose reliability
■ Refers to the infringement of an interest worth legal protection or where a
wrongdoer unreasonably causes harm to another person
○ NB for test: Why is it appropriate to consider wrongfulness as the last element or
essentialia according to the act and consequence approach ?
■ Must inspect conduct and harm first = it does not make sense to start your
delictual investigation with wrongfulness as it refers to act and consequence
● This is so as these two elements form part wrongfulness and thus first
need to be proved before exploring wrongfulness
● My understanding = conduct is the answer to the equation and
conduct + harm are the elements to conclude on wrongfulness
■ Wrongfulness is not an attribute of conduct alone
■ This case must be quoted when the question is posed
● Le Roux and Others v Dey 2011 (3) SA 274 (CC)
● In the more recent past our courts have come to recognise, however,
that in the context of the law of delict:
● (a) the criterion of wrongfulness ultimately depends on a judicial
determination of whether - assuming all the other elements of
delictual liability to be present - it would be reasonable to impose
liability on a defendant for the damages flowing from specific
conduct, and (b) that the judicial determination of that reasonableness
would in turn depend on considerations of public and legal policy in
accordance with constitutional norms
○ Incidentally, to avoid confusion it should be borne in mind
that, what is meant by reasonableness in the context of
wrongfulness has nothing to do with the reasonableness of
the defendant's conduct, but it concerns the reasonableness
of imposing liability on the defendant for the harm resulting
■ Act and consequence
● Elements of conduct must be present - if there is no act or omission,
why are we even investigating this element?
○ act may be described as delictually wrongful with reference
to its consequence
○ the consequence is the infringement of a legally protected
interest
42
● Consider this = No consequence OR the consequence is not an

infringement of a legally protected interest?
○ This means we cannot really describe the act as delictually
wrongful
○ Why = Because (according to "act and consequence) the
consequence (of the act) does not amount to an infringement
of a legally protected interest
● Thus an act on its own
○ ie. without reference to a consequence of the nature
described above. can never be held to be delictually
wrongful. For example, if X races down a main street in
Johannesburg at 120 km/h in peak hour traffic. and nothing
happens
■ his act will not be considered wrongful in delict
○ As a matter of fact, his conduct is irrelevant for the purposes
of the law of delict because there is no infringement of an
interest
■ In delict, the wrongfulness of an act is, therefore, always determined with
reference to its consequence: if such a consequence is lacking, the act cannot
be Act and consequence are always separated in time and space
● slap in the face VS bomb in a mall
○ the act is only wrongful once the harmful consequence
ensues (act & consequence)
● Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA
254 (W)
○ A pregnant woman was in a car accident and later her baby
was born with disabilities and defects
○ Dealt with nasciturus fiction = the naciturus fiction has been
extended further to cover not only patrimonial loss but also
reparations
■ The court stated that the fiction can be used to claim
compensation for the infringement of a person's
physical integrity if the loss arose from prenatal
injuries
■ Thus a person's right physical integrity extends to
unlawful conduct that took place before the
aggrieved was born
43
■ Road Accident Fund v Mtati 2005 (6) SA 215 = Case pertained to the father
of a child, whose wife was in a car accident during her pregnancy
○ In court a quo the RAF entered a special plea saying that the
unborn child did not retain legal subjectivity and thus could
not be completed as the fund may only be paid to ‘persons’
○ They furthered this argument and went on to plea that there
was consequently no duty of care to be extended to the child
by the driver
○ The court went on to state that the naciturus fiction need not
always be used and warned against combining the specific
elements of delict = especially wrongfulness and damage
○ Nasciturus fiction need not be expanded in the law of delict =
an ordinary delictual action is that is all that is needed in
most cases
■ Elements can be separated in time and space and
need not all happen at once
■ Lee case = demonstrates a more flexible approach to the but for test
● Court held that a strict approach to this test would result in injustice
and thus the flexible approach is required
● Facts
○ P detained in max security prison for around 5 years
○ While in prison, became ill and diagnosed with TB
○ After release, instituted action for damages
○ Said D/s servants at prison had by their conduct caused him
to become indicted with TB
○ He succeeded with his claim in the HC
○ HC decision was overturned by the SCA: factual causation
was not proved
○ CC distinguished between factual and legal causation
● Mechanical application of but for test may
lead to injustice, therefore flexibility
required
● There is no magic formula for all of the
cases - depends on facts of each case
● Factual causation in its simplest form:
weather one fact flows from another
● No need to produce policy considerations
44
○ Wrongfulness requires an ex post facto investigation = relevant facts and

circumstances that were really present and all the consequences that really ensued
■ It is a dual investigation
● (1) has a legally recognised interest been infringed ? = act must have
caused a harmful result
● (2) did such prejudice occur in a legally reprehensible (unacceptable)
manner?
○ take into account legal norms
○ violation of legal norms must be present = Harm alone is
insufficient to constitute wrongfulness (these are 2 distinct
elements)
■ Harm and legal infringement must be separated
○ The crux of wrongfulness
■ Wrongfulness involves the scope of protection that the law affords to various
interests, the scope of a person's responsibility to act and the policy
considerations that relate to whether the law of delict should intervene
wrongfulness concerns:
● should a court, as a matter of policy, impose liability on the
wrongdoer in these circumstances?
● is it reasonable to compensate the injured for the loss and for the
wrongdoer to bear the loss?
○ Wrongfulness in South African Delict
■ Conduct & wrongfulness = did the harm fall within the wrongdoer's scope of
liability?
● This is a wrongfulness issue
■ Harm & wrongfulness = infringement of legally protected right or interest
● Pure financial loss & privacy & reputation & mental distress?
○ Extent of protection is a question of wrongfulness
■ We can see that wrongfulness talks to all the other elements
○ Positive conduct that causes harm to another person is prima facie wrongful
■ Physical integrity (body) or tangible property through positive conduct is
prima facie wrongful
■ An omission is in itself not seen as prima facie wrongful
● Balancing of competing rights and interest are unique to wrongfulness and it is thus
very important
○ I.e child's best interests in terms of religion = are all balanced under the element of
wrongfulness
45
○ Where the other elements attempt to balance right, they do so insufficiently

■ (it is not adequately dealt with under any other element)
○ Example: Free speech vs reputation; enjoyment of property vs harm to a neighbour
● Justifications/ defences of wrongfulness = justify causing of harm that would otherwise be
wrongful
○ Necessity
○ Consent
○ Defence
○ Statutory authority
■ Justification is a question of wrongfulness
● fault (intent/negligence) = blameworthíness of wrongdoer's conduct
○ does not deal with weight attached to intent (or even motive)
mistakes (i.e., putative justification); recklessness
● Intent; awareness of possibility of harm;
● NB for test: Reprehensible motive & recklessness (conscious
negligence) may all be indicators of WRONGFULNESS
■ WRONGFULNESS = fault, conduct, causation, & harm do not really deal
with the policy considerations that guard against indeterminate
liability/hampering public administration/alternative remedies & their
availability/ maintenance of free competition, etc.
● rights & duties in law, and DLR, are relational
● "duty" = value judgement = under the element of wrongfulness
● Fault acts as a liability brake under fault-based liability
○ Strict liability does not mean absolute liability = here,
wrongfulness (based on policy and reasonableness) acts as a
liability brake
○ Is this element an issue ?
■ not usually, but it may be an issue (in some cases)
■ For example: the conduct is an omission or statement; harm is pure economic
loss or psychiatric injury; or where there is a conflict of rights
■ In these cases, courts may use wrongfulness to determine IF
● (1) the infringement of an interest is worthy of protection and
● (2) the harm caused falls within the wrongdoer's scope of
responsibility in contentious cases = courts use/apply wide & general
criteria
○ A. reasonableness
○ B. legal convictions prevailing in the community
46
○ C. society's boni mores

○ Le Roux and Others v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC)
■ A vice-principal of one of Pretoria's prominent high schools instituted two
separate claims for sentimental damages on the basis of the actio iniuriarum,
namely, for insult (infringement of dignity) and defamation (infringement of
good name)
■ The defendants (learners at the school) published computer-created pictures
in which the faces of the plaintiff and the school principal were superimposed
on an image of two naked men sitting next to each other in a sexually
suggestive manner
■ The plaintiff obtained relief on both claims in the High Court (Dey v Le Roux
(GNP) case no 21377/06 (28 October 2008)), but in the Supreme Court of
Appeal (Le Roux v Dey 2010 (4) SA 210 (SCA)) it was held that the separate
claim for insult had been ill-founded, because in the process of assessing
damages for defamation the plaintiff's humiliation was one of the factors that
was considered
■ Notwithstanding this, the Supreme Court of Appeal confirmed the trial court's
award of R45 000 to the plaintiff
● In a further appeal to the Constitutional Court, the latter court set
aside the orders of the trial court and the Supreme Court of Appeal
● The court awarded the plaintiff the lesser amount of R25 000 and
also ordered the defendants to tender an unconditional apology to the
plaintiff for the injury they had caused him
● Country Cloud Trading CC V MEC 2014 (12) BCLR 1397 (CC)
○ Wrongfulness is an element of delictual liability
○ It functions to determine whether the infliction of culpably caused harm demands the
imposition of liability or, conversely, whether "the social, economic and others costs
are just too high to justify the use of the law of delict for the resolution of the
particular issue”
○ Wrongfulness typically acts as a brake on liability, particularly in areas of the law of
delict where it is undesirable or overly burdensome to impose liability.
47
● Diagram: general overview of wrongfulness
Part 2: Wrongfulness
● Boni mores as the basic test from wrongfulness

● Legal convictions of the community = norm/ criterion = boni mores
○ Balancing of interests
○ Delictual criterion
○ Objective criterion
○ Practical application of boni mores criterion
● Boni mores is an objective test based on the criterion of reasonableness
○ HENCE investigation of wrongfulness inspects if a norm has been breached (here, the
norm refers to boni mores / legal convictions of the community)
○ This test is concerned with IF, according to the legal convictions of the community &
in light of all the circumstances of the case, the wrongdoer infringed the interests of
the injured in an unreasonable manner
● This requires a balancing exercise
48
○ Balance the interests of wrongdoer vs interests of injured vs social consequences of

imposing liability
● The balancing of interests is an ex post facto investigation
● This balancing act (weighing up) will determine IF the infringement of the injured interests
was reasonable or unreasonable
○ Remember, for negligence (form of fault) reasonableness refers to something else, see
Kruger v Coetzee - don't confuse this!)
● Various factors play a role in determining the objective (un) reasonableness of the
wrongdoer's conduct :
○ Nature & extent of the loss/harm;
○ was the harm/loss subjectively foreseen or reasonably foreseeable;
○ harmful conduct's possible value to the wrongdoer (defendant) / society;
○ cost & effort of preventative steps (to prevent the loss/harm);
○ degree of probability of success of the preventative steps;
○ nature of relationship between parties;
○ proportionality between cost of prevention and harm/loss injury could suffer;
○ motive of wrongdoer;
○ economic considerations & fear of limitless liability;
○ foreign law considerations;
○ ethical and moral issues;
○ public interests (criminal law):
○ public policy (including constitutional values & norms)
49

DLR 320 - Law of Damages - M. Du Buisson

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DLR 320 - Law of Damages - M. Du Buisson

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DLR 320 Damages Notes M.

Introduction: Historical Development of law of delict

○ Protection - not only rights but interests too

● General principles regulate delictual liabilities ● Separate torts with own

● Section 9(3) prevents the state from from unfairly discriminating

● Impact of the constitution

○ Changing the existing legal rules

(1) Damage /Harm

○ Diminution in utility/ use = both patrimonial and non-patrimonial are similar in so

● Loss of a patrimonial element : Utility of an object or an object in its

○ X is exposed to radiation through Y's negligent conduct. X does not suffer

Side note: Not discussed in class ↓

There are 2 approaches to this problem

injured and unable to fully support himself.

● The process whereby damages to be awarded are expressed in monetary terms

● Frustration of expectation of such income is not legally seen as damage

● The detrimental impact or change in factual disturbance of personality interests deemed

○ Prospective injury to personality can be seen as the frustration of a justified

Assessment of non-patrimonial losses

● Determined by a comparative method = similar to patrimonial loss

○ Disfigurement = facial and bodily distortion

Unconsciousness and changed personality

● How do we award damage ?

○ In this case the plaintiff suffered brain injuries to an extent

Iniuria = Injury to personality

● Object of an award = personal (psychological satisfaction) for offender to pay solatium

General Class discussion (not for test purposes)

● The causal nexus/ link between conduct and damage is causation

● But for test: conditio sine qua non

■ A and B jointly operate on C and C dies on the operation - A tried to stop

○ Lee v Minister of Correctional Services = demonstrates a more flexible approach to

Factual causation is = Am I the cause ?

● There is no single and general criterion for legal causation which is

■ Intent and negligence cannot serve as satisfactory criteria for legal

● Conditions underlying automatism

● It takes two forms = in the form of intent or negligence

● As far as the objective reasonable persons test applies, one is dealing

● Voluntary assumption of risk

● Characteristics of forms of liability without fault

● The strict liability of one person for the delict of another

■ D can raise delictual defences

medical treatment amounts to R5 000. Will Frenkie succeed in an action against

Accountability is the basis of fault. Provocation may be used to exclude accountability.

○ Motive = reason for someone's conduct (facts behind formation of will)

● The reasonable person

○ Reprehensible state of mind of an accountable person directing her/his will at a

● Negligence judged in light of surrounding circumstances

(5) Wrongfulness/ Unlawfulness

● What is wrongfulness all about ?

○ Wrongfulness / unlawfulness refers to the causing of harm that was unreasonable/

● Consider this = No consequence OR the consequence is not an

○ Wrongfulness requires an ex post facto investigation = relevant facts and

○ Where the other elements attempt to balance right, they do so insufficiently

○ C. society's boni mores

● Diagram: general overview of wrongfulness

● Boni mores as the basic test from wrongfulness

○ Balance the interests of wrongdoer vs interests of injured vs social consequences of

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