Negligence: Criminals, Drivers, Professionals, and the average Joe What everyone should know RAKEEBA MAHOMED 6 NOVEMBER 2014
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2 Negligence: Criminals, Drivers, Professionals, and the average Joe What everyone should know RAKEEBA MAHOMED 6 NOVEMBER 2014
3 WHAT IS NEGLIGENCE? - Suffer loss or damage due to conduct of another - Institute criminal charges (criminal law) jail/fine OR - Claim money for loss (civil law) - 5 Requirements Act/omission Wrongful Fault (intention or negligence) Damages Causal link between act/omission and damages
4 FAULT INTENTION OR NEGLIGENCE Intention Intentionally perform act you know is wrong Negligence Unintentionally commit wrongful act
5 TEST FOR NEGLIGENCE Kruger v Coetzee Reasonable Man/Person Test Would reasonable person in position of wrongdoer have foreseen conduct causing damage? If so, could steps have been taken to prevent damage? If yes to both questions Negligent
6 WHO IS THE REASONABLE PERSON? Fictional person: The average man/woman Not reckless/overcautious Aware of surroundings and dangers in activities Professionals/experts eg drivers, doctors, lawyers, brokers - Did the professional/expert act with same skill and caution as reasonable members of profession?
7 NEGLIGENT CRIMINALS
8 NEGLIGENT CRIMINALS (CONT) Murder - intentionally cause death of another Culpable homicide - negligently cause death of another Test for negligence/culpable homicide death reasonably foreseeable and preventable?
9 NEGLIGENT CRIMINALS (CONT) The judge goes on to say: Firstly: Would a reasonable person in the same circumstances as the accused have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result? Secondly: Would a reasonable person have taken steps to guard against that possibility? The answer to both questions is yes. I am of the view that the accused acted too hastily and used excessive force. In the circumstances it is clear that his conduct was negligent
10 NEGLIGENT CRIMINALS (CONT) Court held Oscar lacked requisite intention to be guilty of murder, but guilty of culpable homicide, a crime with element of negligence
11 NEGLIGENT DRIVERS Injury/death caused by negligent driving Reasonable Driver Test damage reasonably foreseeable and preventable? If yes, negligent Claim money for damages eg medical expenses, loss of earnings, loss of support, pain, suffering (RAF) OR Criminal charges for injury/death fine/jail
12 NEGLIGENT DRIVERS (CONT) Mkhonza v RAF (2013) Facts 5 July 2010, 22h10, M s Polo struck by large object Later identified as tyre from unidentified vehicle M badly injured Court held Tyre loose due to negligence of unknown driver Failed to secure load Failed to foresee and prevent the possibility of damage to M Court found in favour of M
13 MEDICAL NEGLIGENCE
14 MEDICAL NEGLIGENCE (CONT) Reasonable Medical Practitioner Test damage reasonably foreseeable and preventable? If yes, negligent Medi-Clinic Ltd v Vermeulen (2014) Facts - V contracted malaria, hospitalized - V developed bedsores in hospital, causing permanent nerve injuries affecting his mobility - V paralysed, wheelchair bound, sued
15 MEDICAL NEGLIGENCE (CONT) Medi-Clinic Ltd v Vermeulen (2014) Cont Court held - Medical practitioner not expected to show highest degree of professional skill but reasonable skill and care - Hospital staff not negligent
16 NEGLIGENT ATTORNEYS Mlenzana v Goodrick and Franklin Inc (2011) Facts - M sued attorney G for R493,574.00, for negligently failing to timeously lodge claim for loss of support and funeral expenses against RAF Court held - G negligent, had to pay - Failed to take reasonable steps to obtain information required, failed to exercise skill and knowledge expected of average attorney
17 NEGLIGENT PROPERTY OWNERS Holm v Sonland Ontwikkeling (2010) Facts - Owner of shopping complex has volleyball court on site, next to dam - H kicks volleyball over fence, into dam - H dives in, breaks his neck in shallow water - H paralysed for life - No warning signs not to dive into dam Court held - H 50% negligent and complex owner 50% negligent
18 NEGLIGENT PROPERTY OWNERS (CONT) Owning property brings responsibilities Not simply expect members of public/visitors to guard against risk of injuries
19 NEGLIGENT BROKERS MY BROKER NEVER TOLD ME.. Insurance broker acts on behalf of insured, has duty to exercise reasonable care and skill
20 NEGLIGENT BROKERS (CONT) Durr v Absa Bank (1997) Facts - Mrs D 65 years old, needed advice with investments - Advisor recommended investment in Supreme - Supreme liquidated shortly after Court held - Advisor failed to investigate Supreme and its creditworthiness - Ignored warning signs high returns and commissions offered - A knew Mrs D relied on his advice, negligent, had to pay
21 CONCLUSION Know your limits! If you lack skills/expertise, get help/refer Defences! Contributory negligence, voluntary assumption of risk
22 THANK YOU RAKEEBA MAHOMED Director t f c Cape Road, Mill Park, Port Elizabeth, PO Box 59, Port Elizabeth, 6000 Docex 12, Port Elizabeth
23 DISCLAIMER These slides set out general legal principles and are for information purposes only. The contents should not considered as legal advice. Prior to using any of the information in the presentation, we recommend that you should obtain legal advice. For more information on this presentation, please contact Rakeeba Mahomed on or at
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