LOD301 PAST QUESTIONS AND MODEL ANSWERS (EXAMS &

ASSIGNMENTS)
MULTIPLE CHOICE

1.1. Y was involved in a motor vehicle collision with X. The accident occurred
when their vehicles approached each other from opposite directions and Y’s
car swerved into the incorrect lane where it collided with X’s vehicle. Y said he
was overcome by a sudden, unforeseen and uncontrollable blackout. He
attributed the blackout to a fall in a supermarket earlier on the morning of the
accident. As Y’s lawyer, what defence would you raise against a possible
delictual action against him?

A. Automatism
B. Sudden emergency
C. Mental illness
D. Novus actus interveniens

1.2. X gives Y a lift in her car. While driving, X talks continuously on her cell
phone and also touches up her makeup. Eventually X loses control of the car
and drives into a lamp post. Y, who had not fastened her seatbelt, is injured in
the accident. She is hospitalised and incurs hospital costs of R10 000. After
investigation it transpires that, if Y had fastened her seat belt, her hospital
costs would have amounted only to R6 000. Y institutes a damages claim of
R10 000 against X. What amount would Y be able to receive taking the above-
mentioned facts into account?

A. R0, because Y did not fasten her seat belt

B. R6 000, because Y did not fasten her seat belt
C. R10 000, because X caused the accident
D. R8 000, because Y contributed to the damage

1.3. What action may a claimant use against the owner of a domestic animal
for harm that the animal causes when the animal acts contrary to its nature
and from inward excitement?
A. The actio de pastu
B. The actio de pauperie
C. The actio legis Aquiliae
D. The strict liability action
1.4 What does the maxim volenti non fit iniuria mean?
A. Consent can justify causing harm
B. Consent cannot justify harm
C. Consent can justify negligence
D. Consent can justify the intent
1.5. X, an old fragile lady, threatens her son-in-law Y, who is a huge
bodybuilder, that she is going to hit his head off his shoulders. Y goes ahead
and beats X to such an extent that she has a concussion and a broken arm.
Will Y be successful with his defence of private defence?

A. No, the attack of X on Y has not commenced yet.

B. No, the attack was not against a legally recognised interest of Y.
C. No, the threat of X against Y was not wrongful.
D. No, the defence used by Y was not necessary or proportionate
1.6 X plants a bomb in a busy train station. Before the bomb can explode and
cause damage, it is discovered and rendered harmless. Was X’s act delictually
wrongful?
a. No, because without harmful consequences, there is no wrongfulness and no
delict, however reprehensible the conduct is.
b. Yes, because even without harmful consequences, there is wrongfulness and a
delict, because the conduct is reprehensible in terms of public policy or boni mores.
c. No, because it will not be reasonable in terms of public policy or boni mores to
hold X delictually liable.
d. Yes, because the act of planting a bomb in itself is wrongful and delictual in
nature.
1.7 Without reason X gives Y a hard punch that knocks Y unconscious. X runs
away. After a few minutes Y regains consciousness, runs after X and slaps him
a few times. Taking all the requirements of private defence into account, did Y
act in private defence?
a. Yes, the attack was a wrongful attack.
b. No, the attacker was not proven to be at fault.
c. No, the harmful attack has already stopped.
d. Yes, the defence was necessary and reasonable
1.8. X knocks out the window of Y’s burning house to rescue Z, who is trapped
inside the house. What defence could X raise not to be liable for the damage to
the window?
a. Self-defence
b. Necessity
c. Consent
d. Legal duty
1.9 What are factors that may have a bearing on a person’s accountability?
a. Mental illness, provocation and religious belief
b. Mistake, intoxication and provocation
c. Jest, intoxication and emotional distress
d. Mental illness, provocation and intoxication
1.10 Direction of will is a necessary component of which concept?
a. Intention
b. Conduct
c. Fault
d. Wrongfulness
1.11 What test did the Appellate Division in S v Mokgethi 1 All SA 320 (A) adopt
in determining legal causation?
a. The direct consequence test.
b. The reasonable foreseeability test.
c. The adequate test.
d. The flexible test.
1.12 X aims a large stone at Y, who is standing with two friends. X foresees
that he might hit one of the friends instead, but nevertheless proceeds to
throw the stone at Y. He misses, and the stone hits and injures one of the
friends. What form of intent is present?
a. Dolus directus.
b. Dolus indirectus.
c. Dolus eventualis.
d. Dolus luxuria.

1.13 What defences can exclude both accountability and intention?

a. Emotional distress, provocation and intoxication
b. Emotional distress, mistake and intoxication
c. Emotional distress, jest and intoxication
d. Emotional distress, provocation and mistake
1.14 What concept refers to a person’s capacity to distinguish between right
and wrong and to act in accordance with that distinction?
a. Blameworthiness
b. Accountability
c. Fault
d. Intention
1.15 What is the main tool for determining factual causation in the South
African courts?
a. The novus actus interveniens theory.
b. The direct line theory.
c. The conditio sine qua non theory.
d. The “bad-for” test.
1.16 The following are factors which may have a bearing on a person's
accountability. Which is the false option?
a) mental illness;
b) religious belief;
c) provocation;
d) relative compulsion;
e) intoxication.

1.17 Accountability is –
a) a prerequisite for finding that the damage-causing conduct is wrongful;
b) a prerequisite for finding that the defendant can be blamed for having fault;
c) a prerequisite for finding that the defendant had acted voluntarily;
d) a prerequisite for finding that remote damage can be imputed to the defendant;
e) none of the above-mentioned options is correct.
1.18 Direction of will is a necessary component of –
a) the conduct element of delict;
b) wrongfulness;
c) fault;
d) accountability;
e) none of the above-mentioned options is correct. (as it is the first component of
intention)

1.19 Which statement is false?

The so-called "egg-skull" cases doctrine-
a) can be reconciled with the direct consequences doctrine;
b) can be reconciled with the doctrine of foreseeability;
c) deals with the question of imputable harm;
d) is rejected in case law as being legally untenable because the reasonable man
should, in terms of it, foresee the reasonably unforeseeable;
e) forms the basis of the maxim "You must take your victim as you find him".

1.20 Which option is the odd one out?

a) the flexible approach;
b) direct consequences;
c) conditio sine qua non;
d) reasonable foreseeability;
e) adequate causation.
(as it is a specific test for factual causation and all others are tests used to determine
whether harm resulting from wrongful conduct should be imputed on perpetrator)

1.21 The Aquilian action is in principle available to claim damages for pure
economic loss (PEL). Which option is false in respect of a claim of this kind?
a) PEL may comprise patrimonial loss which does not result from damage to
property;
b) PEL does not refer to patrimonial loss that is a result of the impairment of
personality alone;
c) PEL may refer to financial loss that flows from damage to property, which does not
involve the plaintiff's property;
d) PEL may comprise patrimonial loss which does not result from impairment of
personality;
e) According to our courts, the wrongfulness of an act causing PEL almost always
lies in the breach of a legal duty.

1.22 Which option is false in respect of the actio de pauperie?

a) the animal must act contra naturam sui generis;
b) the animal must be a domestic animal;
c) the defendant must be the owner of the animal at the time when summons is
issued;
d) the prejudiced person or his/her property must be lawfully present at the location
where the animal causes the damage;
e) the animal must act sponte feritate commota.
1.23 Which of the following expressions is not exclusively concerned with the
concept of legal causation?
a) remoteness of damage;
b) novus actus interveniens;
c) limitation of liability;
d) imputability of damage;
e) the direct consequences doctrine.

1.24 Which option is false in respect of an employer's vicarious liability for the
delict of his employee?
a) a requirement for the liability is that there should be an employer-employee
relationship;
b) a further requirement for liability is that the employee's conduct should constitute a
delict;
c) an employee who commits a delict while acting directly against the instructions of
his employer during the course of his employment, can under no circumstances
cause his employer to be vicariously liable;
d) the so-called "standard test" must be applied to determine the presence of one of
the requirements for liability;
e) a requirement for liability is that the employee should have committed the delict in
the scope of his employment.

1.25 The so-called "standard test" to determine whether an employee

committed a delict in the scope of his employment is
a) at the same time subjective and objective;
b) subjective;
c) objective;
d) neither subjective, nor objective;
e) none of the above-mentioned options is correct.

MATCH COLUMNS
COLUMN A
1. Property Interest
2. Person Interest
3. Personality Interest
4. Psyche Interest
5. Lex Aquilia
6. Germanic remedy for pain
and suffering
7. Actio iniuriarum
8. Actio de pauperie
CORRECT COLUMN B
H. Physical and intellectual property,
maintenance rights and goodwill
D. Protecting bodily integrity
A. Dignity, privacy, identity and reputation
F. Persons psychological health and mental
tranquillity
C. Claim for patrimonial loss, which is
physical damage to person or property
I. Claim for intangible harm associated with
personal injury
J. Claim for violation of personality interest,
bodily integrity, dignitas and reputation
B. Claim damage caused by domestic animal
 9. Actio de pastu G. Claim for damage to plant, crops or
pastures through the process of grazing.
10. Vicarious Liability E. Strict liability, delictual liability through a
relationship between wrongdoer and
defendant in execution of an instruction

TRUE/ FALSE
2.1. An employee who commits a delict while acting directly against the instructions
of his employer during his employment can under no circumstances cause his
employer to be vicariously liable. - False
2.2. A claim for pure economic loss in terms of the Aquilian action, may refer to
financial loss that flows from damage to property, which does not involve the
plaintiff's property. - False
2.3. Accountability is a prerequisite for finding that the damage-causing conduct is
wrongful. - True
2.4. Provocation and relative compulsion are factors which may have a bearing on a
person's accountability. - True
2.5. Direction of will is a necessary component of the conduct element of delict. -
True

LONGER TYPE / STRUCTURED / APPLICATION QUESTIONS

1. X, a cashier in a supermarket, is shot in the stomach by Y during a
robbery at the supermarket. The bullet damaged the spinal cord of X,
with the result that he is paralysed and is forced to use a wheelchair.
The doctors warned X that he must constantly shift his position in the
wheelchair to prevent compression sores. X’s condition improves to
such an extent that he can return to work at the supermarket. However,
he is hospitalised again later as a result of septicaemia, from which he
eventually dies six months after the shooting incident. A post mortem
investigation revealed that the septicaemia was the result of severe
compression sores which were caused by X’s failure to shift his position
in the wheelchair often enough. In addition, it appears that X suffered
from a blood disease since childhood, which made him more
susceptible to septicaemia than healthy people. X’s dependants institute
a claim against Y for the loss of support. Y’s only defence is that a
causal link between his conduct and X’s death was absent.

1.1 For this question, suppose that it was already established that Y had
the intention to harm X through his wrongful conduct. Now discuss
the considerations to be considered in determining whether Y should
succeed in his defence. In your answer refer to relevant case law.
(Answer is below and will also be in the upcoming memo of the
Assignment)

1.2 Suppose that Mr X adhered to the instruction of the doctors after his
initial recovery. He constantly shifted his position and no compression
sores developed, but Mr X died of septicaemia caused by the blood
 disease he had since early childhood. Would your answer differ from
your answer provided in 1.1? Substantiate and refer to applicable legal
rules and case law.

2. In answering Question 1, you needed to follow a systematic approach to

delictual problem-solving. Discuss the general acceptable systematic
approach in solving delictual problems.

The systematic approach to delictual problem-solving involves several steps,

as outlined in the textbook:

Step 1: Identify the parties

This step involves understanding who the parties involved in the delictual
problem are
Step 2: Primarily fact-based decisions
In this step, decisions are made based on factual information related to the
delictual problem
Step 3: Primarily normative decisions
This step involves making decisions based on normative principles rather than
just facts
Step 4: Determining the remedy
After liability has been determined, the next step is to decide on the
appropriate remedy, which usually involves damages but can also include an
interdict or an apology
Step 5: Apportionment of damages
If damages are awarded, this step involves deciding whether the responsibility
for the harm should shift entirely to the defendant or be apportioned in some
way. (Follow these stems in your discussion)

3. Name and briefly describe the three forms of intent and provide
appropriate examples.

1. Direct intent (dolus directus): This form of intent is present where the
wrongdoer actually desires a particular consequence of his conduct. E.g. X
decides to shoot and kill Y in order to take Y’s money. The execution of this
plan is accompanied by direct intent because it is X’s desire or plan that Y
should die. (3)

2. Indirect intent (dolus indirectus): This form of intent is present where a

wrongdoer directly intends one consequence of his conduct but at the same
time has knowledge that another consequence will unavoidably or inevitably
occur. The causing of the second consequence is accompanied by indirect
intent. E.g. X desires to shoot and kill Y who is standing behind a closed
window. The bullet aimed at Y first shatters a windowpane and then fatally
wounds Y. In respect of Y’s death, it is clear that X had direct intent; but the
same cannot be said about the destruction of the windowpane – X definitely
did not desire to break the window. Nevertheless, X realised that it was an
inevitable or necessary consequence of his shooting Y and therefore in
relation to the breaking of the window, indirect intent is present. (3)
 3. Dolus eventualis: This form of intent is present where the wrongdoer, while
not desiring a particular result, foresees the possibility that he may cause the
result and reconciles himself to this fact; i.e. he nevertheless performs the act
which brings about the consequence in question. The wrongdoer must have
actually subjectively foreseen the possibility. E.g. X wants to kill his enemy Y.
Z is standing next to Y when X takes aim. X actually foresees the possibility
that his shot may miss Y and hits Z. The conclusion is that X shot Z
intentionally, even though he did not desire this consequence or foresee it as
a necessary consequence of his conduct

4. Superspar owns a shopping mall and enters into a contract with AB

Cleaning to clean the floors on a daily basis and to keep the floors clean
throughout the day. Superspar monitored the work of AB Cleaning on a
daily basis to ensure that the work was being executed. Sam, a patron of
the Superspar mall, slipped and fell in the mall where there was a
slippery substance on the floor. Sam sues Superspar. You are
Superspar’s attorney. Advise Superspar whether they could be held
delictually liable for the patrimonial harm Sam suffered. (Independent
Contractors and Vicarious Liability – refer to the upcoming memo of the
assignment for First semester 2024)

5. X, Y and Z were stranded on a small island in the middle of the ocean

after their cruise ship sank. Although there is fresh water on the island,
there is absolutely nothing to eat. To stay alive, X and Y decide to eat Z,
who was already very weak. X and Y were later rescued, but Z’s
dependants institute a claim for loss of support. You are X and Y’s
advocate. Discuss the defence you would raise to exclude wrongfulness
and refer to applicable case law.

The question arising in the given facts is whether taking an innocent life in
order to save another life/other lives may be justified in necessity.
Necessity can justify the infringement of interest of an innocent person, where
the infringement is the only reasonable way of protecting one’s own interest or
that of another person against danger created by natural
phenomena or human conduct.
A principle applicable here provides that there must be proportionality
between the interest protected and the interest infringed, the interest that is
sacrificed must not be more valuable than the interest that is protected.
The question of whether an innocent life may be sacrificed to save another life
is related to this principle.
In English Law it was held that necessity can never justify killing of an
innocent person. R v Dudley & Stevens.
However, South African law changed this position.
In S v Goliath court ruled that an innocent life may be sacrificed in the case of
compulsion or duress (necessity).
 The facts were that if X told Y that if Y did not help X to kill Z, X would kill Y. Y
thereupon helped X to kill Z and relied on necessity during the court
proceedings.
The court said that most people value their own life more highly than that of
another person and that necessity could justify homicide. The law does not
require that a person acting under duress should conform to a higher standard
than that of the average person. Therefore, the claim for loss of support
against X and Y should not be successful
6. X plants a bomb in a busy train station. Before the bomb can explode
and cause damage, it is discovered and rendered harmless. Was X’s act
delictually wrongful? Briefly explain your answer.

(X's act of planting a bomb with the intent to cause harm would be seen as
wrongful, even though the bomb was discovered and rendered harmless
before causing any damage (Page 200). The motive behind the act, which
was to cause harm, would be taken into account when assessing
wrongfulness (Page 184). Therefore, X's act of planting the bomb would be
deemed delictually wrongful)
7. In an essay clarify the functions of the law of delict in a society.
In an essay, clarify the functions of the law of delict in a civilised society.
[Please remember that an essay consists of an introduction, a middle part and a
conclusion]

In an essay, clarify the functions of the law of delict in a society.

You will find the answer in chapter one, paragraph 1.4 with pages 8 -11.
You must have used an essay form as requested.
In your answer you should have referred to the following framework and clarified
each aspect in a sentence or two at the most.
The functions of the law of delict in society includes:
1. Compensate for harm that has been suffered or an interest that has been infringed
2. Protect certain interests
3. Promoting of social order and cohesion
4. Educate and reinforce values
5. Provide social acceptable compromises between conflicting moral views
6. Deter the injurer from behaving similarly in future and warn other from behaving in
a
7. Reallocate and spread losses

8. Summarise the systematic approach to delictual problem solving by

referring to the steps to be taken according to your textbook.
(The steps are highlighted under Chapter 1.13 in the textbook, briefly
summarise it as it is relatively easy)

9. Discuss the essential elements (core umbrella elements) of liability upon

fault.
Harm, Conduct, Causation, Fault and Wrongfulness – It is disussed
10. Discuss the types of interest that the law of delict seeks to protect from
invasion and provide examples for each type of interest.

1. Property (including physical and intellectual property, dependants’

maintenance rights, current and future profits, goodwill and inheritences)

- Provided that they result in some diminution of a person’s patrimony or

estate, invasions of any corporeal or incorporeal property interests,
whether existing or anticipated, will be protected by the Aquilian action
(actio legis Aquiliae). This means that these interests receive strong
protection, similar to bodily interests, against both negligent and intentional
invasions.
- Should a domesticated animal cause harm to property, the actio de
pauperie provides that the owner of the animal will be strictly liable for the
loss. Plants, crops and pastures are additionally protected against damage
caused by trespassing domesticated animals, in which event the owner of
such animals would be held strictly liable in terms of the actio de pastu.

2. Person
- The importance of protecting persons against invasions of bodily
integrity is reflected in the fact that all the delictual actions focus in some way
on protecting bodily integrity. Compensation for financial expenditure incurred
as a result of bodily harm is given the widest scope for recovery in the fault-
liability system.
- One can claim under the actio legis Aquiliae in respect of both
intentional and negligent invasions, and also under the actio de pauperie for
any such harm caused by domesticated animals, in which case the owner is
strictly liable. One can also claim under the actio iniuriarum in instances
where one has not
suffered financial harm, but only if the invasion of one’s bodily integrity was
intentional. The scope of protection in respect of an assault, for example, is
therefore less when there is no financial impact, i.e. no patrimonial harm.
However, because of the value that society places on people’s liberty, courts
give greater protection in instances involving unlawful deprivation of liberty.
(The exact nature of such protection – whether liability is strict or based on a
variation of the intention element – will be raised later.)

3. Personality (including dignity, privacy, identity and reputation)

- Mere invasions, provided that they are done intentionally, may result in
compensation under the actio iniuriarum. The scope of liability under the
action iniuriarum might be broadened in future, however. There are
indications that courts might favour liability based on negligence in privacy
and defamation cases, in which event the plaintiff’s personality interests would
receive greater protection than before, on a par with those patrimonial
interests protected under the action legis Aquiliae.
 - However, where such invasions also result in patrimonial harm, i.e.
financial loss, one can claim additional compensation under the actio legis
Aquiliae. In the latter event, one would be protected against both intentional
and negligent invasions.

4. Psyche (including the entire spectrum of a person’s psychological

health and mental tranquillity)
- This category ranges from injury to a person’s nervous system, through
to the physical pain experienced with physical injury, anxiety and mental
distress, to the reduction in enjoyment of life because of discomfort,
inconvenience and humiliation. Where infringements of such interests result in
financial harm, the actio legis Aquiliae offers the appropriate protection, while
the Germanic remedy for pain and suffering is the appropriate vehicle for
compensating pain and suffering, and loss of a person’s full pleasure of living.

If the injury was caused intentionally, one could also institute a claim under
the actio iniuriarum for invasion of bodily integrity.

(extract from textbook, write your own summary)

11. Define legal causation. Thereafter discuss the talem qualem rule and the
implications thereof on legal causation.
You will find the aspects to be discussed in your article in in chapter six,
paragraph 6.4 on page 99.
In your answer you should have referred to the following framework:
No legal system will hold people responsible for all the harmful consequences
of a conduct. This would not be fair and just. The person is liable only for the
consequences that are closely linked to his or her conduct, either directly or
sufficiently closely and this is where the legal causation plays a role. Legal
causation is used to limit any liability to those consequences that one can
fairly attribute to the defendant.
In some cases, the victim may suffer more serious harm that was intended by
the perpetrator, due to some prior weakness of the victim and which the
perpetrator may not have known about. This weakness may be physical,
psychological, or financial.
In terms of the talem qualem rule (also known as the ‘thin skull’ or ‘egg skull’
rule), persons take their victims as they find them.

This means that where the perpetrator foresees some harm, but causes more
harm to a victim than what would normally be expected, because of a pre-
existing condition, the perpetrator will be liable for the full extent of the harm.
In the case, Smith versus Leach Brain and Company LTD, the plaintiff's
deceased husband had been struck on the lip by a piece of metal, causing the
burn. Three years later, the burn became cancerous and as a result of the
cancer the husband died. Medical evidence established that the husband had
suffered from a prior physical condition that made him susceptible to cancer.
The court held that the thin skull rule applied, and that the deceased
employer, who had failed to provide him with protective clothing, was liable to
 his widow in damages. The case, Smith versus Abrams is another example of
how one can apply this rule.

The final result of this rule is that where one foresees the general nature of
the harm, one would be liable for all the harm within that general category of
harm (bodily injuries). This is true irrespective of any pre-existing condition
that might result in harm that one would not normally expect from such
conduct.

12. You are a lecturer. Explain to your students the essential elements of
the Germanic remedy for pain and suffering.
Harm or Loss
This refers to intangible, non-patrimonial harm associated with personal injury to
the plaintiff, such as actual pain, psychiatric injury, loss of amenities of life, and
loss of life expectancy.
Conduct
This can be either a positive act, an omission, or a statement that has caused
harm to the plaintiff.
Causation
There are two aspects of causation to consider - factual causation, where the
conduct must have been a direct cause of the harm suffered by the plaintiff, and
legal causation, where the link between the defendant's conduct and the plaintiff's
harm must not be too tenuous.
Fault
This involves determining blameworthiness in the form of dolus (intention) or
culpa (negligence). However, accountability for one's conduct is essential for
blameworthiness.
Wrongfulness
To establish wrongfulness, the circumstances are evaluated against the criterion
of reasonableness. If the causing of harm is objectively unreasonable or lacks
lawful justification, liability can be imposed. All the other elements - conduct,
harm, causation, and fault - are considered in determining wrongfulness in a
given situation.

13. Discuss the defences that a defendant can raise once a plaintiff has
proven intention in accordance with the details in your prescribed
textbook.

(Once a plaintiff has proved intention, the defendant (who a court has found to
be accountable) can raise various defences to escape liability. Defences that
exclude intention can be aimed at any one or both of the elements for
intention. In other words, the defences can be used to:

• Indicate that the defendant did not direct his or her will towards effecting the
harm-causing event
• Indicate that the defendant did not know that his or her conduct was
wrongful
 • Indicate that the defendant neither directed his or her will towards effecting
the harm-causing event nor knew that the conduct was wrongful)
1. Mistake
2. Jest
3. Intoxication
4. Provocation
5. Emotional distress as stipulated in chapter 8.4.

14. Write an article for a journal and explain infringement of a personality interest.
Write an article for a journal and explain infringement of a personality interest.
(discuss the following)
1. Bodily integrity
2. Dignity
3. Privacy
4. Identity
5. Reputation

15. Discuss the distinction between patrimonial harm and non-patrimonial harm.
(base your discussion off Chapter 4.2 Patrimonial and Non Patrimonial
harm)

16. In essay format differentiate between commission and omission. Use

examples to clearly illustrate the difference. (see Question 40)

17. Name the essential elements for delictual liability and briefly describe each
element with reference to its requirements/sub-elements. (discussed below)

18. Babes Beauty gives Careless Carol a lift in her car. While driving, Babes
Beauty talks continuously on her cell phone and also touches up her
makeup. Eventually Babes Beauty loses control of the car and drives
into a lamp post. Careless Carol, who had not fastened her seatbelt, is
injured in the accident and broke her collar bone. She is hospitalised
and incurs hospital costs of R10 000. After investigation, it transpires
that if Careless Carol had fastened her seat belt, her hospital costs
would have amounted only to R6 000. Careless Carol institutes a
damages claim of R10 000 against Babes Beauty.

(I) Summarise the systematic approach that you will follow to solve the
delictual problem relating to the above-mentioned set of facts and
give an explanation of each step. (formulate and answer based on
the systematic approach (5) steps you will use to solve the delictual
problem chapter 1.13)

18.2 Advise Careless Carol on the topic of negligence if she wants to institute a
claim against Babes Beauty. In your answer refer to the concept of
negligence, the test for negligence, the onus of proof and refer to relevant
case law. (Refer to the Test for Negligence of Coetzee v Kruger and apply
facts to the scenario, it will also be in the Memo of the First semester 2024)
18.3 For the purposes of this question, assume that Babes Beauty was an
independent contractor of the company Beauty Girls (Pty) Ltd, and she was
busy executing her functions under the contract at the time when the accident
occurred. Beauty Girls (Pty) Ltd explicitly instructed Babes Beauty not to
transport passengers in the execution of her duties for Beauty Girls (Pty) Ltd.
Advise Careless Carol if she could institute a delictual claim against Beauty
Girls (Pty) Ltd as the employer of Babes Beauty as an independent contractor
vis-à-vis an employee. Refer to relevant case law in your answer.
(Independent contractor and vicarious liability to be discussed in assignment
Memo First Semester 2024)

18.4 Taking the set of facts of Question 4 into consideration, Babes Beauty
approaches you for legal advice regarding the claim of R10 000 Careless
Carol instituted against her. Babes Beauty is of the opinion that Careless
Carol was also negligent in not putting on her seatbelt and therefore
contributed to more serious injuries. Advise Babes Beauty, referring to
requirements of contributory negligence, applicable legislation, case law and
different approaches used by our courts.

In the scenario, Babes Beauty gave Careless Carol a lift, and Carol was
injured in an accident because she had not fastened her seatbelt, but would
have incurred lower costs if she had, contributory negligence is a factor to
consider. Contributory negligence refers to the idea that if a plaintiff
contributed to their own harm through negligence, their damages could be
reduced.

Based on the legal principles outlined on page 486, it is possible that Careless
Carol's failure to fasten her seatbelt could be seen as contributory negligence.
The court in King NO v Pearl Insurance Co Ltd held that a reduction in
damages can occur when a plaintiff's lack of precaution contributes to their
harm. Therefore, it is possible that the court may consider Careless Carol's
failure to wear a seatbelt as contributory negligence.

The court's approach to assessing contributory negligence can vary. The

court may use a comparative analysis to determine the extent of negligence of
each party involved, as seen in the case referenced on page 487. In this case,
the court compared the fault of the plaintiff and the defendant to decide on a
fair reduction in damages.Considering the circumstances, Babes Beauty can
argue that Careless Carol's failure to fasten her seatbelt contributed to her
injuries and increased the hospital costs. Babes Beauty can use the legal
concept of contributory negligence, supported by relevant legislation and case
law, to defend against the full damages claim of R10,000. The court may
consider reducing the damages based on the extent of Careless Carol's
contribution to her own harm.
18.5 Assume for the purposes of this question, that Careless Carol suffered from a
rare brittle bone disease which causes her bones to break more easily than
other people’s bones. Advise Babes Beauty on the success of her defence
that if Careless Carol did not suffer from brittle bone disease that she would
not have suffered a broken collarbone and would not have needed any
medical treatment

Also refer to contributory negligence and the Talem Qualem rule and
formulate an answer. (etc. Babes Beauty may be able to argue that if
Careless Carol did not have the brittle bone disease, her injuries would not
have been as severe, and thus, her medical costs would have been lower.
This defense could potentially result in a reduction in the damages claimed by
Careless Carol)

19. Name the essential elements for delictual liability and briefly describe
each element with reference to its requirements/sub-elements. You may
make use of diagrams to illustrate the elements and requirements
- a) HARM: Patrimonial (physical injury, damage to property, pure economic
loss) and Non-Patrimonial (Pain and suffering, infringement of personal rights)
b) CONDUCT: Voluntary conduct (Positive acts and omissions)
c) CAUSATION: Factual and Legal causation (FLEXIBLE APPROACH: direct
consequence, novus actus interveniens, foreseeability, adequate
cause, intent, talem qualem)
d) FAULT: Accountability (Intention and negligence) Mental capacity to
distinguish between right and wrong, maturity to act accordingly
e) WRONGFULNESS: Nature of harm (bodily injury, property damage, pure
economic harm), Infringement of right of interest of plaintiff, Policy (social or
economic implications of imposing liability, alternative remedies),
Constitutional rights and duties, other statutory rights and duties, factors
indicating breach of duty (professional responsibility, control, relationship),
nature of defendants’ fault or state of mind (intent, motive to harm), nature of
defendant’s conduct.

20. Write an article for De Rebus and critique the conditio sine qua non test
for determining factual causation and offer alternatives for the
determination of factual causation
Critique:
Process of reasoning – determining a hypothetical result by eliminating or
substituting conduct – is clumsy and circuitous. Minister of Safety and
Security v Van Duivenboden, Hypothetical conduct, question which
consequential events would be influenced (2)
- Test provides no answer where there are multiple causes. Especially same
action causing harm, Summers v Tice, shooting at quail (2)
- Not a true test for determining factual causation, merely a way of expressing
a causal link that has already been determined. (2)

Alternatives:
Conditio sine qua non test used as primary test but also use other tests when
doubt
 i) Material contribution: Minister of Police v Skosana – whether the
defendant’s conduct “caused or materially contributed to” the plaintiff’s harm.
(3)
ii) Common sense: Minister of Safety and Security v Van Duivenbode
“sensible retrospective analysis” of what would probably have occurred.
Minister of Finance v Gore N, “but-for” test is a “matter of common sense,
based on the practical way in which the ordinary person’s mind works against
the background of everyday life experiences”. Portwood v Svamvur “direct
common-sense approach of the man in the street”. (3)
iii) Human experience and knowledge: based on the actual, and not
hypothetical facts of the case. (2)
iv) Increasing risk and creating opportunities for occurrence of harm:
English case, McGhee v National Coal Board, (2)
Appropriate test: Minister of Police v Skosana: conduct should have caused
(by being a condition sine qua non) or materially contributed to the harm.
Approach should be applied in such a way that the result conforms to
common sense and produces a result that does not offend our sense of
justice.

21. Jane, a law student at Southern Business School was involved in a

motor vehicle accident at the Silverstar crossing caused by the
negligence of Reckless Ralph and broke her leg. Her leg was operated
on and put in a cast to heal properly. When she was discharged from
hospital, she was given crutches to assist her to walk. The doctor told
her not to put unnecessary weight on the leg. While visiting Silverstar
Casino, she slipped on a smooth floor because the crutches did not
have rubber tips. She broke her leg again with the fall, which needs a
second operation to repair. Jane sues Reckless Ralph for damages for
the second incident. Reckless Ralph approaches you for advice on the
chances of success of Jane’s claim against him for the second incident.
(Only refer to the element of causation in your advice/answer)

To be delictual liable, there should be a factual and legal causal link between
Ralph’s conduct and the harm suffered by Jane, i.e. Ralph must have caused
the harm suffered by Jane. (2)

Factual causation: conditio sine qua non theory or “but for” test. Defendant’s
conduct must have been a necessary condition for plaintiff’s harm.
International Shipping Co (Pty) Ltd v Bentley. (3)
Legal causation: flexible test whether factual link is sufficiently strong and
closely connected to the conduct to say that it is fair, reasonable and just to
hold the defendant liable for damages. Look at circumstances of the case and
relevant social policy.
Tests Direct consequence, reasonable foreseeablility,adequate cause (3)
However, in this case, a novus actus interveniens: an independent,
unconnected and extraneous factor or event that is not foreseeable and which
actively contributes to the occurrence of harm after the defendents’s original
harm has occurred. Causes break between conduct and harm. (5)
 Facts similar to the case of Mafesa v Parity Versekeringsmaatskappy Bpk.
Court found second incident constituted a new intervening cause because it
had not been reasonably foreseeable. It had not been reasonable foreseeable
that the plaintiff, who had been warned of the dangers, would recklessly
attempt to walk on a slippery floor (5) Although there is a factual causal link
between Ralph’s conduct and Jane’s harm, there is nolegal causation as
there was a novus actus interveniens. (2)
The fact of the “egg skull” case would not be relevant as no legal causation
could be established.

22. Discuss accountability as a prerequisite for finding a person

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

Accountability refers to a person’s capacity to distinguish between right and

wrong and then act in accordance with that distinction. Blameworthy or at
fault.
Not legally accountable, one cannot impute blame
Mental capacity to distinguish and appreciate difference.
Sufficient maturity to act in accordance with appreciation of distinction. (4)
a) Youth: Child who has not completed 10th year is always lacking capacity.
Child over ten but under 14 – rebuttable presumption lacking capacity.
Between 14 and 18 years presumed to be culae capax, unless proven
otherwise are legally accountable and laible for wrongful conduct. (Weber v
Santam Versekeringsmaatskappy Bpk)(Eskom Holdings Ltd v Hendricks) (4)
b) Mental disease or illness: Where, because of a mental disease or illness,
a person cannot at a given moment distinguish between right and wrong, or
where he is able to make such a distinction but cannot act in accordance with
his appreciation of the distinction, he is culpae incapax. (S v Campher) (4)
c) Intoxication Intoxicated persons may also be culpae incapax. However,
the mere consumption of liquor or use of drugs may in a given situation be a
negligent act for which the defendant may be held responsible. (S v Chretien)
(4)
d) Provocation Where a person under provocation loses his temper and
becomes passionately angry, he may be said to lack accountability and will
thus not be blamed for his (“intentional”) conduct. However, as already stated,
provocation in our law is often regarded as a ground of justification.

23. Write a comprehensive essay on the liability for harm caused by

domestic animals. In your essay also refer to case law.

ACTIO DE PAUPERIE for harm caused by domestic animals

Owner strictly liable for harm caused by animal when it acts contrary to its
nature (contra naturam sui generis) and from inward excitement or vice
(sponte feritate commota) O’Callaghan v Chaplin applicable in South African
law based on a presumption of fault and strict liability.
 Type of animal: All types of domestic animals and livestock, and also for
domesticated wild animals or wild creatures employed for domestic use, such
as bees. (2)
Elements of action:
- Harm
- Conduct by a domesticated animal
- A causal link between the conduct and the harm
- The defendant must have been the owner of the animal at the time of the
injury
- The animal must have acted contrary to the nature of its breed – contra
naturam sui generis
- The animal must have acted from inward excitement or vice – sponte feritate
commota.

Defences
- External factor that provoked the animal’s harmful behaviour, eg. Sudden
thunder clap
- Culpable conduct, eg. Plaintiff provoked a dog and was bitten
- Voluntary assumption of risk, eg. Taking dare and entering bull ring
- Prior contractual undertaking not to claim damages, signed pactum de non
petendo before going horse-riding
- Unlawfully present at place where harm occurred
- Negligence of keeper (3)
Cases: Lever v Purdy and Fourie v Naranjo and Another (refer to facts and
outcome)

THE ACTIO DE PASTU for harm caused by grazing animals (2)

Strict liability of owner of a domesticated animal that trespasses onto
another’s land and causes harm by eating plants.
Claim not only for grazing activity, but also for any collateral damage caused
while grazing, such as trampling on plants and breaking fences. (2)
Requirements:
- Ownership
- Harm caused by grazing
- Animal must have acted of its own accord and not provoked or prompted
into behaving in this way
Defences the same as for actio de pauperie, except culpable conduct.

24. You are a Lecturer at SBS/Stadio Multiversity. Comprehensively explain

to your students the purpose of the Law of Delict.

Base your answer off the following format

Functions of law of delict in society includes;
1. Compensation for harm that has been suffered or an interest that has been
infringed
2. Protection of certain interests
3. Promoting of social order and cohesion
4. Educating and reinforcing values
5. Providing socially acceptable comprises between conflicting moral views
 Deterring the injurer from behaving in a similar way similarly in the future and
warning others from behaving in a similar way

Relocating and spreading losses

25. Name the essential elements for delictual liability and briefly describe
each element with reference to its requirements/sub-elements. You may
make use of diagrams to illustrate the elements and requirements.

a) HARM - There are two types of harm - **patrimonial** and **non-

patrimonial**. Patrimonial harm includes physical injury, damage to property,
and pure economic loss. Non-patrimonial harm consists of pain and suffering
and infringement of personal rights R

b) CONDUCT: Delict law involves voluntary conduct, which can include

positive acts and omissions.

c) CAUSATION: Causation in delict law involves both factual and legal

causation. The approach is flexible and considers factors like direct
consequence, novus actus interveniens, foreseeability, adequate cause,
intent, and talem qualem.

d) FAULT: Fault in delict law pertains to accountability, which can be

categorized into intention and negligence. It also considers factors like mental
capacity to distinguish between right and wrong and maturity to act
accordingly.

e) WRONGFULNESS: Wrongfulness in delict law is determined by the nature

of harm, infringement of the plaintiff's rights or interests, policy considerations
(including social and economic implications), constitutional rights and duties,
other statutory rights and duties, factors indicating a breach of duty (like
professional responsibility, control, relationship), and the nature of the
defendant's fault or state of mind (intent, motive to harm), and the nature of
the defendant's conduct.
26. Write an article for the South African Law Journal on NECESSITY as a
ground of justification and defence directed at the delictual element of
wrongfulness
Necessity can justify the infringement of the interest of an innocent person –
only reasonable way of protecting own interest
Example, breaking a window to enter a house to save someone from a
burning building
Danger caused by nature not caused harm wrongfully, because no human
conduct and defence against same not private defence but justified on the
grounds of necessity
Difference between private defence and necessity – necessity justifies
causing harm to innocent person and private defence against person causing
harm wrongfully.
Necessity – apply general criterion of reasonableness or boni mores
There must be actual danger to a legally recognised interest – S v Pretorius
and Petersen v Minister of Safety and Security
Any legally recognised interest may be protected – life, physical integrity and
honour and freedom
Danger must be present or imminent
Must not be legally obliged to endure the consequences of the dangerous
situation
There must be proportionality between protected interest and the interest
infringed.
Must be the only reasonable means of protection – R v Dudley & Stevens
Discussion of the S v Goliath case regarding necessity as defense for murder

27. X, a cashier in a supermarket, is shot in the stomach by Y during a

robbery at the supermarket. The bullet damaged the spinal cord of X,
with the result that he is paralysed and is forced to use a wheelchair.
The doctors warned X that he must constantly shift his position in the
wheelchair to prevent compression sores. X’s condition improves to
such an extent that he is able to return to work at the supermarket.
However, he is hospitalised again later as a result of septicaemia, from
which he eventually dies six months after the shooting incident. A post-
mortem investigation revealed that the septicaemia was the result of
severe compression sores which were caused by X’s failure to move
himself in the wheelchair. In addition, it appears that X suffered from a
blood disease since childhood, which made him more susceptible to
septicaemia than healthy people. X’s dependants institute a claim
against Y for the loss of support. Y’s only defence is that a causal link
between his conduct and X’s death was absent. With reference to the
nature of factual and legal causation and applicable case law, discuss
the considerations to be taken into account in determining whether Y
should succeed in his defence.

To be delictual liable, there should be a factual and legal causal link between
Y’s conduct and the harm suffered by X, i.e. Y must have caused the harm
suffered by X.
 Factual causation: conditio sine qua non theory or “but for” test. Defendant’s
conduct must have been a necessary condition for plaintiff’s harm.
International Shipping Co (Pty) Ltd v Bentley.
Legal causation: flexible test whether factual link is sufficiently strong and
closely connected to the conduct to say that it is fair, reasonable and just to
hold the defendant liable for damages. Look at circumstances of the case and
relevant social policy.
Tests Direct consequence, reasonable foreseeablility,adequate cause
However, in this case, a novus actus interveniens: an independent,
unconnected and extraneous factor or event that is not foreseeable and which
actively contributes to the occurrence of harm after the defendents’s original
harm has occurred. Causes break between conduct and harm (5)
Facts similar to the case of S v Mokgethi case Court found second incident
constituted a new intervening cause because it had not been reasonably
foreseeable. It had not been reasonable foreseeable that the plaintiff, who had
been warned of the dangers of not moving his position would not adhere
thereto. Cause remove too far from initial conduct (5)
Although there is a factual causal link between the shooting and the death,
there is no legal causation as there was a novus actus interveniens. (2)
The fact of the “egg skull” case would not be relevant as no legal causation
could be established.

28. You are a lecturer at Stadio (formerly SBS). Explain the topic of
negligence to your students.
The concept of negligence: Evaluating conduct according to a standard that is
acceptable to society – “reasonable person”. (2)
Characteristics of a reasonable person: Fictitious concept that expresses the
standard of reasonableness. Standard of the ordinary individual who takes
reasonable chances and reasonable precautions to protect interests, while
expecting the same conduct from others. (4)
The test for negligence: Discuss test according to Kruger v Coetzee.
Foreseeability and preventability. (4)
Attributes that influence the standard of care: Beginners, experts and children.
(3)
Proving negligence: Plaintiff bears onus on a balance of probabilities

29. Name and briefly describe the three forms of intent and provide
appropriate examples for each
1. Direct intent (dolus directus): This form of intent is present where the
wrongdoer actually desires a particular consequence of his conduct. E.g. X
decides to shoot and kill Y in order to take Y’s money. The execution of this
plan is accompanied by direct intent because it is X’s desire or plan that Y
should die. (3)

2. Indirect intent (dolus indirectus): This form of intent is present where a

wrongdoer directly intends one consequence of his conduct but at the same
time has knowledge that another consequence will unavoidably or inevitably
occur. The causing of the second consequence is accompanied by indirect
intent. E.g. X desires to shoot and kill Y who is standing behind a closed
 window. The bullet aimed at Y first shatters a windowpane and then fatally
wounds Y. In respect of Y’s death, it is clear that X had direct intent; but the
same cannot be said about the destruction of the windowpane – X definitely
did not desire to break the window. Nevertheless, X realised that it was an
inevitable or necessary consequence of his shooting Y and therefore in
relation to the breaking of the window, indirect intent is present. (3)

3. Dolus eventualis: This form of intent is present where the wrongdoer, while
not desiring a particular result, foresees the possibility that he may cause the
result and reconciles himself to this fact; i.e. he nevertheless performs the act
which brings about the consequence in question. The wrongdoer must have
actually subjectively foreseen the possibility. E.g. X wants to kill his enemy Y.
Z is standing next to Y when X takes aim. X actually foresees the possibility
that his shot may miss Y and hits Z. The conclusion is that X shot Z
intentionally, even though he did not desire this consequence or foresee it as
a necessary consequence of his conduct

30. You must write an article for De Rebus and explain the role and
definition of harm and the different manifestations of harm
Definition and role: (6)
Harm includes damage, damages, loss, right, interest and injury.
Harm element of delict; for delict to arise, there must be actual or potential
harm. Cornerstone of delictual problem solving. Once nature of harm is
identified, possible to identify the nature of the enquiry and elements that
need to be proven.
Different manifestations:
Harm falls into two broad categories namely patrimonial and non-patrimonial
harm.
Patrimonial harm (PH) (7)
Patrimonial harm arises when a person’s patrimony or financial estate is
affected in a negative way.
PH includes current and future losses also referred to as universitas.
PH falls in to three broad categories namely financial loss due to personal
injury, damage to property and pure economic loss.
Remedies lies in the Lex Aquila.
Non-patrimony harm (NPH) (7)
NPH entails harm than can’t be measured in monetary terms.
NPH does also not include the person’s universitas.
Pain, inconvenience, shock and insulting behaviour are clearly non
patrimonial harm as it can’t be measured in monetary terms.
However, accounts for treatment to diminish the pain would constitute
patrimonial loss. The Germanic remedy as well as the actio iniuriaram are to
be used to sue for non-patrimonial loss.

31. Write an essay in which you discourse why conduct is an element of

delict and distinguish between human conduct, voluntary conduct and
automatism.
Why conduct is an element of delict:
No delict if you cannot link the harm suffered to the conduct of a person.
 Mere thoughts, without being manifested in some way, cannot create delictual
consequences
Human Conduct:
As general rule only human conduct subject for delictual enquiry. Human
conduct can be through objects or animals. Juristic person acts through its
office bearers.
Voluntary conduct and automatism:
Conduct is defined as a voluntary human act or omission. “Voluntary” means
that the person must be able to control his/her muscular movements by
means of his/her will and control.
Body movements need not be willed to be voluntary, nor do they need to be
rational or explicable.
The defence of automatism excludes voluntariness, and this means that the
relevant movements were mechanical and the person could not control them
by his/her will. Factors that can induce a state of automatism include
unconscious state such as blackout and epileptic fit

32. X takes his Rottweiler dog for a walk in the park. Y approaches X, hits
him in the face and knocks him to the ground. Y pulls out a gun, points
it to X’s head and says he will kill X if he does not give him his
cellphone, watch and money. X gives his dog the command to attack Y.
The dog bites Y in his throat and kill him. Y’s wife institutes a claim for
damages against X. You are X’s attorney.Advice X on a relevant defence
in protecting his legally recognised interest with reference to relevant
case law.
Private defence justifies protecting a legally-recognised interest against actual
or imminent wrongful attack.
Ntsomi v Minister of Law and Order sets out requirements: Must have been
wrongful attack. Attack must be directed against a legally-recognised interest,
.i.e physical integrity and life of X
Attack must have commenced or must be threatening, attack was threatening
but not yet complete

Attacker does not have to be at fault

Attack does not have to be directed at the defender
Defence must be directed at the attacker, X acted through his dog and
directed his defence against the attacker
Means of defence must be necessary and reasonable to prevent the harm
Defence against the attack must be necessary
The interest that the defender protects need not be commensurate with or
similar in character to the attacker’s interest that is infringed by the defence,
the defence stood in reasonable relationship to the attack as X’s life was
threatened, therefore balance
33. Write an article for De Rebus and critique the conditio sine qua non test
for determining factual causation and offer alternatives for the
determination of factual causation

Critique:
- Process of reasoning – determining a hypothetical result by eliminating or
substituting conduct – is clumsy and circuitous. Minister of Safety and
Security v Van Duivenboden, Hypothetical conduct, question which
consequential events would be influenced (2)
- Test provides no answer where there are multiple causes. Especially same
action causing harm, Summers v Tice, shooting at quail (2)
- Not a true test for determining factual causation, merely a way of expressing
a causal link that has already been determined. (2)

Alternatives:
Conditio sine qua non test used as primary test but also use other tests when
doubt
i) Material contribution: Minister of Police v Skosana – whether the
defendant’s
conduct “caused or materially contributed to” the plaintiff’s harm. (3)
ii) Common sense: Minister of Safety and Security v Van Duivenboden
“sensible retrospective analysis” of what would probably have occurred.
Minister of Finance v Gore N, “but-for” test is a “matter of common sense,
based on the practical way in which the ordinary person’s mind works against
the background of everyday life experiences”. Portwood v Svamvur “direct
common-sense approach of the man in the street”. (3)
iii) Human experience and knowledge: based on the actual, and not
hypothetical facts of the case. (2)
iv) Increasing risk and creating opportunities for occurrence of harm: English
case, McGhee v National Coal Board, (2)
Appropriate test: Minister of Police v Skosana: conduct should have caused
(by being a condition sine qua non) or materially contributed to the harm.
Approach should be applied in such a way that the result conforms to
common sense and produces a result that does not offend our sense of
justice.

34. Jane, a law student at STADIO was involved in a motor vehicle accident
at the Silverstarcrossing caused by the negligence of Reckless Ralph
and broke her leg. Her leg was operated on and put in a cast to heal
properly. When she was discharged from hospital, she was given
crutches to assist her to walk. The doctor told her not to put
unnecessary weight on the leg. While visiting Silverstar Casino, she
slipped on a smooth floor because the crutches did not have rubber
tips. She broke her leg again with the fall, which needs a operation to
repair. Jane sues Reckless Ralph for damages for the second incident.
Reckless Ralph approaches you for advice on the chances of success of
Jane’s claim against him for the second incident. (Only refer to the
element of causation in your advice/answer.)
 To be delictual liable, there should be a factual and legal causal link between
Ralph’s conduct and the harm suffered by Jane, i.e. Ralph must have caused
the harm suffered by Jane. (2)

Factual causation: conditio sine qua non theory or “but for” test. Defendant’s
conduct must have been a necessary condition for plaintiff’s harm.
International Shipping Co (Pty) Ltd v Bentley. (3)
Legal causation: flexible test whether factual link is sufficiently strong and
closely connected to the conduct to say that it is fair, reasonable and just to
hold the defendant liable for damages. Look at circumstances of the case and
relevant social policy.
Tests Direct consequence, reasonable foreseeablility,adequate cause (3)
However, in this case, a novus actus interveniens: an independent,
unconnected and extraneous factor or event that is not foreseeable and which
actively contributes to the occurrence of harm after the defendents’s original
harm has occurred. Causes break between conduct and harm. (5)
Facts similar to the case of Mafesa v Parity Versekeringsmaatskappy Bpk.
Court found second incident constituted a new intervening cause because it
had not been reasonably foreseeable. It had not been reasonable foreseeable
that the plaintiff, who had been warned of the dangers, would recklessly
attempt to walk on a slippery floor (5) Although there is a factual causal link
between Ralph’s conduct and Jane’s harm, there is nolegal causation as
there was a novus actus interveniens. (2)
The fact of the “egg skull” case would not be relevant as no legal causation
could be established.

35. Write a comprehensive essay on the liability for harm caused by domestic
animals. In your essay also refer to case law. (Actio de Pauperie discussed)

36. Critically discuss the case of Union Government v Warneke 1911 AD 657
as it relates to the topic of harm. Hint: you need to provide background
information on the topic of harm in general for the reader to understand
your discussion of the case.

Facts and discussion of case on p. 79 (3rd ed) of the prescribed text book and
p. 48 (2nd ed) of the prescribed textbook (5)
Definition and role:
Harm includes damage, damages, loss, right, interest and injury.
Harm element of delict; for delict to arise, there must be actual or potential
harm. Cornerstone of delictual problem solving. Once nature of harm is
identified, possible to identify the nature of the enquiry and elements that
need to be proven. (5)
Different manifestations:
Harm falls into two broad categories namely patrimonial and non-patrimonial
harm.
Patrimonial harm (PH) (5)
Patrimonial harm arises when a person’s patrimony or financial estate is
affected in a negative way.
PH includes current and future losses also referred to as universitas.
 PH is divided into three broad categories namely financial loss due to
personal injury, damage to property and pure economic loss.
Remedies lies in the Lex Aquila.
Non-patrimonial harm (NPH) (5)
NPH entails harm than can’t be measured in monetary terms.
NPH does also not include the person’s universitas.
Pain, inconvenience, shock and insulting behaviour are clearly non-
patrimonial harm as it can’t be measured in monetary terms.
However, accounts for treatment to diminish the pain would constitute
patrimonial loss.
The Germanic remedy as well as the actio iniuriaram are to be used to sue for
non-patrimonial loss.

37. Mr X and his wife Y went to a holiday resort. When Mr X went up a high
slide, he slipped and fell from the top of the slide, broke his neck and
died. There were no railings next to the steps leading up to the high
slide or at the top of the slide. The stairs were slippery and the owners
did not remove excess water which caused the slippery stairs. Mrs Y
approaches you for advice if she would be successful with a delictual
claim based on negligence against the owners of the holiday resort as
she is of the opinion that they were careless/negligent and everybody
could see the slide was dangerous and some protective measures
should be taken. Refer to relevant case law in your answer.
(use the following outline to formulate your answer)
The concept of negligence: Evaluating conduct according to a standard that is
acceptable to society – “reasonable person”. (2)
2. Characteristics of a reasonable person: Fictitious concept that expresses
the standard of reasonableness. Standard of the ordinary individual who takes
reasonable chances and reasonable precautions to protect interests, while
expecting the same conduct from others. (4)
3. The test for negligence: Discuss test according to Kruger v Coetzee.
Foreseeability and preventability. (4)
4. Attributes that influence the standard of care: Beginners, experts and
children. (3)
5. Proving negligence: Plaintiff bears onus on a balance of probabilities

38. Mr X, an avid soccer player, gets injured during a soccer game when Mr Y, a
player from the other team kicks him in the face and causes serious injuries to
Mr X. Mr X wants to claim delictual damages from Mr Y. Mr Y is of the opinion
that Mr X agreed to the rules of the game and cannot succeed with his claim.
Advise Mr Y on a possible defence he may use. Concerns Consent (Refer to
memo of First semester 2024)

39. School X arranges a field trip for the grade 8 pupils at Baby Bush Camp. One
of the activities they must do, is to build a raft and row on the river where the
current is very strong. Neither the school, nor Baby Bush Camp, provided life
jackets or adequate material to build the rafts. The teachers along on the trip,
did not accompany the boys to the river, but held a braai during the event.
 There was only one skinny representative of Baby Bush Camp at the river
coordinating the event. No roll call was done after the event it was only the
next day determined that one of the pupils was missing and drowned during
the event. The parents of the deceased pupil approach you on whether they
can hold some of theroleplayers in the scenario delictually liable due to their
negligent behaviour. Advise theparents of the deceased pupil. (Concerns
Negligence refer to case of Coetzee v Kruger also refer to memo First
semester 2024 once it is released)

40. In essay format differentiate between commission and omission. Use

examples to clearly illustrate the difference. (differenciate and discuss
omission v commission and provide examples)

i.e. A positive act is called a commission, while a failure to act is called an

omission. It is not always easy to distinguish between commissions and
omissions, especially where the activity is continuous. So, the same conduct
might at the same time constitute both a positive act and an omission. The
following examples indicate this overlap and the difficulty it poses:

- Failing to stop at a stop sign and colliding with an oncoming vehicle

constitutes positive conduct (the act of driving), but some people might also
think that it is an omission (failing to stop). However, the failure to stop is
usually treated as deficient (negligent) positive conduct.

- In such an instance, the failure to stop is not an omission, but an act of

negligent driving, in the same way as driving without keeping a proper look-
out (that is, failing to be observant) is not an omission, but a way of saying
that the person was driving negligently.

- Consider the case where a woman asks a policeman to take her home and
the police man instead takes her to a secluded place and rapes her. The act
of rape constitutes positive conduct, but, simultaneously, the policeman’s
failure to comply with his duty to protect citizen’s amounts to an omission. In
this instance, the rape is not a deficient way of executing the policeman’s duty
to protect the woman, but involves the breach of an entirely separate
obligation. The failure to protect the woman cannot be expressed as
constituting deficient (overlapping) positive conduct (the woman’s rape).