Chapter 34

Introduction

 Where a D has committed a delict, but another p did something that contributed to the P’s
harm, then the D can claim that the amount required to compensate the P should be shared
between those that contributed to the harm
 The contributors could be any of the following
i) The plaintiff: in this case the c reduces the amount of damages it awards to the P
(contributory fault)
ii) Another defendant (Ds share liability – joint wrongdoers)
iii) The P(s) and two or more Ds: in this case the c will reduce the amount awarded to
the P(s) and the Ds share liability (combination of contributory fault and joint
wrongdoers)
 Courts use the extent of each parties fault to determine the amounts
 Contributory fault used to be a complete defence to liability but now it does not negate the
delict
 Statutory rules, not CL, governs both the reduction of the award of the damages due to the
P’s contributory fault, and the sharing of resp for the compensation of harm between joint
wrongdoers through applying the Apportionment of Damages Act

Contributory Fault

 The statutory position: the ADA

 S 1(1)(a) governs the reduction in the amount of damages:
Where any person suffers harm which is caused partly by his own fault and partly by
the fault of another p, a claim in respect of that harm shall not be defeated by the
reason of the fault of the claimant but the damages claimable in respect thereof
shall be reduced by the court to such an extent that the court may deem just and
equitable having regard to the degree in which the claimant was at fault in relation
to the damage
 Issues that this section raises:
 Claim shall not be defeated: means that CF is not a defence
 Reduction in damages is the courts discretion
 Fault in relation to damage implies that there must be a causal link between the
conduct and the harm (note NOT the event which caused the harm- eg accident
where Ps negligence contributed, not to the accident, but to the resultant harm)

How are damages apportioned

 Approach one
 AA mutual Insurance Association v Nomeka
 The degree of fault attributed to the D depends on the P’s degree of
negligence
 Eg 30 % + 70 %...The respective degrees of fault must add up to 100%
 This is then translated to the apportionment of the monetary claim
South British Insurance Co Ltd v Smit

o The court stated that a determination of the plaintiff’s degree of fault automatically
determines the degree in which the defendant was at fault.
o This opinion was repeated in AA Mutual Insurance Association Ltd v Nomeka.

 Approach Two
 Jones No v Santam
 Does not depend on the degree of fault of the P
 It had to establish the respective degrees of negligence of the parties: to do
this the court must measure each parties conduct independently against
that of the reasonable person (100%) and asses the extent to which each
party has deviated from that norm
 Does not therefore have to add up to 100
 Rather, the ratio between the two %s will establish the formula for
calculating the reduction in compensation
 Eg 30% and 50 % = 30:50 = 3:5 therefore the D will have to pay 5/8 ths of
the amount = 62.5% of whatever the monetary value is.
 Approach 3
 General Accident Versekeringsmaatskappy
 S1(1)(a) does NOT regard the P’s degree of fault as a deciding factor
 Courts should also consider other factors
 P had not worn a seatbelt which increased the harm, D wanted the
damages to be reduced by 50%
 Consider what reduction will be fair and equitable: P (the passenger) in no
way contributed to the accident and that his fault was a different nature to
the driver
 So, the court compared the Ps fault with that of the D and held them to be
equally negligent. However did NOT reduce the damages by 50 % but rather
by 33%

General Accident Versekeringsmaatskappy SA Bpk v Uijs

o The plaintiff was a passenger in a vehicle driven by the defendant. The plaintiff had failed to
comply with defendant’s request to wear a seat belt, and was seriously injured in an accident
caused by the defendant’s negligent conduct.
o The court stated that, in many instances involving drivers, the causal negligence of one driver
may determine the causal negligence of another. It would therefore usually be equitable for a
plaintiff’s damages to be reduced by the degree of his negligence in such cases
o The court assessed that both the plaintiff and the defendant had deviated to the same extent
from the norm of the bonus paterfamilias.
o If the formula set out in Jones v SANTAM Bpk had been applied, the award of damages would
have been reduced by half. However, the AD felt that justice and equity demanded that the
plaintiff’s fault was to be considered different from that of the defendant, because the plaintiff
did not contribute to the accident
o The court found that a one-third reduction was proper in the circumstances.

 Approach 4
 Many instances where the courts apportion damages without any regard to the
above 3 approaches
 In most cases the courts simply stipulate a percentage that they will reduce the
damages – a gut feeling

contributory negligence or contributory fault?

 Greater Johannesburg Transitional Metropolitan Council v ABSA

 Fault ito s1(1)(a) includes intent – therefore P and D must intend to do harm

However, the majority of cases refer to negligence and this is supported by the
report on the apportionment of damages by the law commission.

Children’s cont fault

 Jones, No v Santam
 Had to est each parties contributory negligence independently
 9 year old girl was struck by a vehicle
 Had to determine fault of the child objectively
 Determined on the same basis as if the child were an adult
 This is so because any subjective requirements are considered in determining
whether the child was culpae capax
 Therefore the court did NOT consider the fact that the P was a child in reduced
damages

Jones v SANTAM Bpk

o This case propounds a more mathematical approach. It requires the court to conduct a
comparative evaluation of the respective degrees of fault to determine not only the degree in
which the plaintiff was at fault, but also the degree in which the defendant was at fault
o The court must therefore assess the extent to which the negligent conduct of both the
plaintiff and the defendant deviated from the norm of the reasonable person.
o The extent of the deviation is expressed in terms of a percentage. The assessed deviations of
the plaintiff and the defendant respectively are then compared, and the “fault” of each, in
relation to the harm, is assessed according to the proportion in which their percentages of
deviation are related to one another
o Two equal percentages of deviation, for instance, represent equal responsibility for the harm
suffered; the plaintiff’s claim is accordingly reduced by 50%.
o A 60% deviation by the plaintiff and a 20& deviation by the defendant represent a
proportionate basis of responsibility of 60 to 20 (or 3:1); the plaintiff’s claim is reduced by
75%, or, to put it differently, he is entitled to only one-quarter of the damages claimed.

 Weber v Santam
  Discretion in Jones was unduly harsh
 D had been negligent but that the child P was accountable and also acted
negligently …therefore q arises to what degree the child was negligent
 D, who should have realised he was dealing with the careless actions of a child,
and did not take this into consideration, will have greater negligence than the
child otherwise the child would be paradoxically be punished for conduct that
the D should have foreseen
 Unsatisfactory results come from a mathematical comparison suggested by jones
and is too rigid
 A comparison of blameworthiness would arrive at a more satisfactory result
 Although Weber followed the Jones approach in assessing neg of a child, in
terms of the reasonable test, it adopted a less rigid approach to apportionment
of damages
 Eskom Holdings v Hendricks
 Referred to Jones and Weber
 Exoerience revealed that although children may be able to distinguish
between right and wrong, they may not be able to act in acc with that
 They become engrossed in play and become oblivious to other
considerations and act impulsively
 Warned against placing an adult head on a childs shoulders
 Clear that an enquiry must in each case be related to the conduct which
gave rise to the loss forming the subject matter of the claim

Contributory fault and BoC

 Cannot apply ADA to contract

 Thoroughbred

South British Insurance Co Ltd v Smit

Facts

o After respondent had, after dark, reversed his car out of his gate onto the road, his son aged
10 and another boy aged 8 had run diagonally across the road behind the respondent's car
without looking. The driver of a motor-cycle insured by appellant, which was proceeding in the
opposite direction, had collided with and injured the son. He had not seen the son and had
accordingly taken no avoiding action at all.
o In an action by the respondent for damages in respect of the injuries to his son, the main
controversy centred around the question of whether or not the boys' movements were
masked from the cyclist's view by the respondent's car. A The trial Court found that they were
not, and that the cyclist had been negligent in not keeping a proper look-out and in not having
taken any avoiding action, and had awarded damages on the basis that the son's
blameworthiness should be assessed at only 20 per cent.
o In an appeal, the majority of the Court found that the cyclist's view had not been masked after
the boys had left the pavement but that the trial Court had misdirected itself in apportioning
 damages. It appeared that the son was an intelligent boy who, prior to the accident, used to
travel regularly by bicycle to school where he had been taught certain road-safety measures;
and who knew that he should not cross the road in such manner.

Greater Johannesburg Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank

The concept of “contributory negligence” is, from a strictly theoretical point of view, not accurate.
Negligence in the legal sense requires the pre-existence of wrongful conduct on the part of the
actor. Unless the actor breached a legal duty or infringed a right of the plaintiff, his careless conduct
cannot legally be considered as negligence. Contributory negligence exists independently of the
presence of wrongful conduct on the part of the plaintiff. If one fails to exercise reasonable care in
respect of one’s own interests, one is neither in breach of a duty, nor has one infringed one’s own
rights. One does not owe oneself a duty to take care, nor can one infringe one’s own rights

Apart from this particular difference between contributory negligence and the negligence required
to found a cause of action, the criterion for determining the existence of contributory negligence is
similar to that for establishing negligence on the part of a defendant. A failure to exercise reasonable
care in one’s own interest constitutes contributory negligence on the part of a plaintiff. The court
must therefore determine whether the claimant’s acts or omissions, causally linked to the harm,
deviated from the norm of the bonus paterfamilias in the plaintiff’s position.

Facts

o A certain T who was employed by the Soweto City Council (a body which was later dissolved
and the assets and liabilities of which were transferred to the plaintiff) had stolen cheques
drawn by a third party in favour of his employer.
o He handed these to his accomplice, W, who was employed by the defendant bank. W caused
the proceeds of the cheques to bogus accounts, thus causing the plaintiff to lose the amounts
reflected on each of the cheques.
o The plaintiff sought to hold the defendant vicariously liable for W’s fraud.

Law and Application

o The court held the defendant liable, but reduced the amount of damages recoverable by 50%
on account of the contributory fault (intent) of T, the plaintiff’s employee
o This case is important because the court held that the use of the term ‘fault’ by the legislature
in s1(1)(a) of the Apportionment of Damages Act implies that apportionment of damages may
take place when the form of fault on the part of both plaintiff and defendant is intent
o Furthermore, it was stated that s1(1)(a) can be invoked against a plaintiff who is only
vicariously liable (where the fault in question is that of his employee)
o The judgment is also of importance because the judge held that the fact that an employee
committed fraud did not imply that the act of fraud by necessary implication fell outside the
 scope of his employment: where the employee in fact pursued her own fraudulent objective
by performing the functions for which she had been employed, the court held that this
amounted to performance of her functions, albeit in an improper fashion, which led to her
employer’s being held vicariously liable
o The loss suffered by the plaintiff in this case was the amounts reflected in the cheques that
were fraudulently paid into the bogus accounts. This is an interesting example of so-called
pure economic loss

Union National South British Insurance Co Ltd v Vitoria

Facts

o The plaintiff (respondent) had been a passenger in a motor car driven by her father. She had
forgotten to fasten her lap belt. A collision had subsequently occurred with another motor
vehicle insured by the appellant. The collision was entirely due to the negligence of the driver
of the insured vehicle.
o The injured plaintiff successfully claimed her full damages in the court a quo. In an appeal it
appeared that if she had worn her lap belt she would not have collided with the windscreen
and would not have suffered facial injuries, but that she would in all probability have collided
with the dashboard and thereby sustained a head injury

Importance of Case

o Although the court concluded that she had been contributorily negligent in failing to buckle
up, no reduction of damages was ordered as the appellant failed to prove that the damage
caused by the collision with the windscreen was worse than it would have been if she had
suffered a head injury through a collision with the dashboard
o This judgment brings to an end the controversy prevailing with regard to the question
whether the plaintiff’s contributory fault is relevant with reference to the ‘damaging event’ on
the one hand, or the ‘damage’ itself on the other
o The court finally followed the latter approach and, in the process of reaching that conclusion,
pointed out that ‘fault’ as defined in s1(3) of the Act does not restrict the content of ‘fault’ as
intended in s1(1)(a).
o Finally, the practical importance of the judgment lies in the decision that the failure (of a
driver or passenger) to wear a safety belt usually constitutes negligent conduct (on account of
the serious results which an accident could entail, even in the case where the risk of an
accident is minimal)
o The main point of this case is to show how fault must be linked to harm and not the event that
caused harm

TOPIC 20

JOINT WRONGDOERS

 ADA also apportions damages to joint wrongdoers

  The statutory position
 All those who are resp for causing harm are resp for compensation, provided the
court is satisfied that a delict has been proved
 Historically: joint wrongdoers were those who consciously cooperated to cause the
same harm. Concurrent or independent wrongdoers were persons who, by
independent wrongful conduct, contributed to the harm. At common law courts
could held them joint and severally liable but concurrent wrongdoers had a right of
recourse against each other but joint wrongdoers had no right of recourse
 This distinction is no longer made in the Act – now just called joint wrongdoers
 P may sue one or more of the wrongdoers in the same lawsuit
 Joint and severally liable, the P can therefore choose to sue one or all of them for
damages or sue them together
 Right of recourse amongst them

Spouses

 where a Ps spouse, as well as the D, commits a delict against the P special rules apply if they
are married in CoP
 S 19 of the Matrimonial Property Act changed the position (the D used to be completely
liable bc could not have a claim against own estate)
 Recoverable from the separate property of the spouse
 Only in so far as they do not have separate property, then is it recoverable from
the joint estate – in this case there will be an adjustment in the event of the
estate being divided
 Ie spouses in with sep estates can be easily held liable but now those in CoP can
also be held liable

Claims by dependants

 Where a dependants breadwinner as well as the D, commits a delict against the dependant,
they are treated as joint wrongdoers
 It does not matter if the breadwinner is alive or dead, the dependant can sue the D and the
court may then draw the breadwinner or his estate into the action as a joint wrongdoer and
it will apportion damages accordingly

Claims by breadwinners

 where a BW sues an outside party for expenses resulting from injuries to the BWs child, and
the child is also at fault, the child will be a joint wrongdoer in respect of the BWs claim
 the outside party has the right to claim a contribution from the child proportionate to his
contributory negligence

Apportionment between more than one P and more than one D

 where a c has to deal with combination of CN and JW

 only one reported case
 Harrington NO v Transnet
  The Ps – two security guards were patrolling a railway and were struck by a
train
 Bodily injuries and sued transnet, the owner of the property and the train
driver
 Ps had been negligent
 Once reduced according to Ps fault the c then apportioned between the Ds

Maphosa v Wilke

FACTS

o The defendant had driven a light delivery vehicle (LDV), in which the plaintiff had been a
passenger, on a road which, although initially tarred, later becomes a dirt road. When they left
the tarred section they entered a dust cloud, which became more dense as they drove on. While
in this dust cloud, a stationary bus had suddenly loomed in front of them, and the defendant had
crashed into its rear end, as result of which the plaintiff sustained certain injuries.
o It further appeared from the evidence that the bus had not pulled off the road surface, that the
defendant had driven at a speed of approximately 80 km per hour before the collision had taken
place, and that the defendant had been aware that he was catching up to another vehicle before
the accident occurred.
o The plaintiff obtained a certain sum as compensation under the Workmens' Compensation Act.
This was, however, not sufficient to cover his damages. Inasmuch as the plaintiff was barred by
the MVA Act from claiming any further amount from the insurer of the LDV, he instituted action
against the defendant as driver of the LDV. The defendant denied negligence, and joined the
insurer of the bus as first third party and the owner thereof as second third party to the action.
As against the third parties the defendant alleged that, if the Court were to find that he had
been negligent, then the accident had been partially caused by the negligence of the bus-driver,
and that the first third party, alternatively the second third party, being joint wrongdoers under
the Apportionment of Damages Act, were obliged to contribute to the damages to be paid by
him.

LAW AND APPLICATION

o The court held that the defendant, especially considering that he had been aware that he had
been catching up to another vehicle, had been negligent in not having slowed down sufficiently
after entering the dust cloud and that the bus-driver had been negligent in that he ought to have
foreseen the potential hazard he had occasioned, especially to those motorists approaching
from the rear, and pulled entirely off the road surface.
o The relative negligence of each party amounted to 65% in the case of the bus-driver, and 35% in
the case of the defendant.
o The court further held that the third party was, as an authorised insurer, a joint wrongdoer
under the Apportionment of Damages Act, inasmuch as s3 thereof rendered s2 applicable 'to
any liability imposed in terms of the Motor Vehicle Insurance Act'. An authorised insurer under
the MVA Act was in any event a joint wrongdoer, being 'liable in delict' as required by s2 of the
Apportionment of Damages Act, in consequence of its liability for the negligence of the driver of
the insured vehicle.
CONCLUSION

o Plaintiff was entitled to judgment against the defendant, and the first third party's special
defences had to fail

Lloyd-Gray Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a Nedbank

FACTS

o The plaintiff allegedly suffered damage when a collecting banker (defendant) collected payment
of cheques for S which were stolen from the plaintiff as the true owner by S
o The plaintiff instituted delictual claims against both the defendant and S on the ground that the
defendant negligently, and S intentionally, caused plaintiff the same damage; i.e. that they were
joint wrongdoers in terms of s2 of the Act
o The defendant denied the Act is applicable where one wrongdoer intentionally and the other
wrongdoer negligently caused the same damage. In addition it was alleged that s2 of the Act was
in any event not applicable because the defendant and S were separate wrongdoers.

ISSUES

1. Whether the defendant (a banker) and S (a thief) were separate wrongdoers, excluded from the
application of the Act
2. Whether the defendant who acted negligently and the thief who acted intentionally can be
considered to be joint wrongdoers in terms of the Act

LAW AND APPLICATION

o In terms of the first issue, the CL distinction between joint and separate wrongdoers fell away
because joint wrongdoers are defined by the Act as persons who are jointly or severally liable in
delict for the same damage.
o Accordingly the bank and the thief qualified as joint wrongdoers although they separately
caused the same damage
o As far as the second issue is concerned, the court built on Randbond Investments where it was
held that the Act is also applicable to intentional, other than negligent, wrongdoers.
o In Lloyd-Gray the court held that the Act also applies where one wrongdoer intentionally and the
other negligently caused the same damage
o Damages are apportioned between such parties on the basis of their relative degrees of
culpability

CONCLUSION

o The court held that the defendant and S were joint wrongdoers and that the defendant was
liable for the full damage because S was not joined as a party