Law of Delict. Fourth Edition J NEETHLING

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1 Law of Delict Fourth Edition J NEETHLING BA LLB (UOVS) LLM (McGill) LLD (Unisa) Professor of Private Law, University of South Africa Advocate ofthe High Court of South Africa JM POTGIETER Blur LLM (RAU) LLM (Harvard) LLD (Unisa) Professor of Private Law, University of South Africa Attomey, Notary and Conveyancer PJ VISSER BA LLB (Pret) LLD (Unisa) Professor of Private Law, University of Pretoria Advocate ofthe High Court of South Africa Translated and edited by: JC KNOBEL BLC LLB (Pret) LLD (Unisa) Associate Professor of Private Law, University of South Africa Advocate ofthe High Court of South Africa BUTTERWORTHS DURBAN 2001

2 Contents Preface v PARTI Introduction to the law of delict 1 General introduction 1 Delict: general nature and place in the legal System 3 2 Delict and breach of contract 6 3 Delict and crime 7 4 Historical development of delictual liability Introduction Actio legis Aquiliae Actio iniuriarum Action for pain and suffering 17 5 The law of delict, the Constitution and fundamental (human) rights 18 PART II General principles of the law of delict 2 Conduct 1 General 27 2 Nature and characteristics of conduct 27 3 The defence of automatism 29 4 Commission (commissio) and omission (omissio) 32 3 Wrongfulness 1 Introduction 35 2 Act and consequence 35 3 The legal convictions of the Community (boni mores) as the basic test for wrongfulness The balancing of interests A delictual criterion An objective criterion Practical application ofthe boni mores criterion 46 4 Wrongfulness as infringement of a right The doctrineofsubjective rights The nature of a subjective right Further development ofthe doctrineofsubjective rights Origin of subjective rights Infringement of a subjective right: requirements 54 5 Wrongfulness as a breach of a legal duty General Liability for an omission Prior conduct (the omissio per commissionem rule) Control of a dangerous object 63

3 viii Law of Delict Rules of law A Special relationship between the parties A particular office Contractual undertaking for the safety of a third party Creation of the impression that the interests of a third party will be protected Summary Breach of a statutory duty 73 6 Grounds of justification Introduction Private defence General Requirements for the attack Requirements for the defence Necessity General Guidelines in determining the presence of necessity Necessity and impossibility Provocation General Provocation in the case of physical assault Provocation in cases of defamation and insult Consent General Characteristics of consent as a ground of justification Requirements for valid consent The pactum de nonpetendo in anticipando Statutory authority Official capacity Execution of an official command Power to discipline Abuse of right and neighbour law Nuisance and neighbour law Fault (and contributory fault) 1 General Accountability Intent Direction ofthe will Consciousness (knowledge) of wrongfulness Motive and mistake as to the causal chain of events Negligence Definition and nature Can negligence and intention overlap? Negligence and an omission The reasonable person: characteristics General Children Experts Negligence: foreseeability and preventability of damage Negligence judged in the light of the surrounding circumstances Negligence and "duty of care" Proof of negligence Relevance of negligence 152

4 Contents ix 4 10 Wrongfulness and negligence Contributory fault Introduction The common law position The Apportionment of Damages Act Provisions and meaningof section 1(1 ){a) and (b) Meaning of "fault" Meaningof "apportionment of damages" Criteria for the "apportionment of damages" Onusof proof The concept of contributory "negligence" Fault in regard to "damage" or "damage-causing event" The provisions and meaning of section 1(3) The dependant's action Breach of contract Legal causation Voluntary assumption of risk and contributory fault (intent) Introduction Relevant cases "Rescue" cases Causation 1 General Factual causation General The conditio sine qua non theory Criticism ofthe conditio sine qua non theory Conditio sine qua non and causation by an omission The determination of a factual (causal) nexus Legal causation General The flexible approach : Adequate causation "Direct consequences" Fault Intent as criterion for legal causation Negligence as criterion for legal causation Reasonable foreseeabiliry Novus actus interveniens So-called egg-skull cases (talem qualem rule) Damage 1 Introduction The compensatory function ofthe law of delict The concept of damage The definition of damage Extent ofthe concept of damage General Damage includes patrimonial (pecuniary) as well as non-patrimonial (non-pecuniary) loss The relationship between patrimonial and non-patrimonial loss The relationship between damage and wrongfulness (unlawfulness) The relationship between damage and factual causation Patrimonial (pecuniary) loss Definition of patrimonial loss A person's patrimony (estate) 219

5 x Law of Delict 4 3 The ways in which patrimonial loss is caused Forms of patrimonial loss The assessment of patrimonial damage The sum-formula approach A concrete concept of damage Time for the assessment of damage Prospective patrimonial damage (lucrum cessans) General Definition and nature of prospective loss Forms of prospective loss Requirements before damages may be recovered for prospective loss The "once and for all" rule Formulation and implications of the rule Exceptions to the rule Causes of action Examples of causes of action and the "once and for all" rule The collateral source rule and compensating advantages (res inter alios actä) General Summary of positive law Theoretical explanation ofthe collateral source rule Mitigation of loss Nature, object and form of damages Assessment of the quantum of damages General The assessment of damages in specific instances Damages for loss of income or support earned illegally Onusofproof Non-patrimonial (non-pecuniary) damage or injury to personality Definition of non-patrimonial loss Interests of personality The general nature of non-patrimonial loss or injury to personality Assessment of non-patrimonial loss or injury to personality and other general principles The object of damages (compensation and satisfaction) in the case of non-patrimonial loss or injury to personality Injury to personality in respect of physical-mental integrity General Theories in regard to the nature of physical-mental injury Cases of unconsciousness and changed personality Assessment of damages in the case of non-patrimonial loss Introduction Physical-mental integrity Injury to personality in the form of iniuria Delictual remedies 1 General The interdict Concurrence of remedies Introduction Delictual actions Actio iniuriarum and contractual action Action for pain and suffering and contractual action Actio legis Aquiliae and contractual action Exclusionary clauses Prescription of remedies 268

6 Contents xi 8 Joint wrongdoers 1 General Special cases Prejudice suffered by a spouse as a result of the conduct of the other spouse and a third party Marriage in Community of property Marriage out of Community of property Prejudice suffered by a person as a result of the death or injury of another through the conduct ofthe deceased or injured and a third party Prejudice asa result of death Prejudice as a result of injury 274 PART III Specific forms of delict 9 Specific forms of damnum iniuria datum 1 Introduction Injury or death of another Action of non-dependants Action of dependants Death of the breadwinner Injury to the breadwinner Psychological lesions (emotional shock) Pure economic loss Negligent misrepresentation Interference with a contractual relationship Unlawful competition Manufacturer's liability Specific forms of iniuria 1 Introduction Rights relating to physical integrity Introduction The right to corpus or body General Seduction The right to libertas or physical liberty General WrongfuI deprivation of liberty or wrongful arrest Malicious deprivation of liberty The right to fama or good name Introduction Defamation Definition Elements Publication Defamatoryeffect: wrongfulness Grounds of justification Privilege or privileged occasion Truth and public interest Faircomment Animus iniuriandi Grounds excluding animus iniuriandi 349

7 xii Law of Delict Mistake Jest Malicious prosecution Attachment of property Rights relating to dignitas The right to dignity The right to privacy The right to identity The right to feelings Breach of promise Adultery Abduction, enticement and harbouring Forms of liability without fault 1 General Dominance of the fault theory Reaction to the fault theory Justification for liability without fault General characteristics of liability without fault South African law Common law and case law Damage caused by animals Actio de pauperie Actio de pastu Actio deferis Conclusion Damage caused by objects thrown, poured or falling out of or from a building Damage caused by owners of neighbouring property: nuisance Forms of iniuria Vicarious liability Introduction Employer-employee Principal-agent Motor car owner-motor car driver Legislation Legal Succession to the South African Transport Services Act 9 of Aviation Act 74 of Nuclear Energy Act 131 of Post Office Act 44 of Bibliography 385 Tableof Cases 399 Table of Statutes 431 Index 435

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