Law f Delict 2010 Mitzi Certzen SU 1: SCOPE Delict: The act f a persn which in a wrngful and culpable way causes lss/damage. Elements f a delict: Act Wrngfulness Fault Causatin Damage All 5 elements must be present befre cnduct=delict. Exceptin: Cases f strict liability. SU 2: INTRODUCTION The law f delict determines the circumstances in which a persn is bliged t bear the damage he has caused anther. Wrngder has bligatin t cmpensate; prejudiced persn has right t claim cmpensatin. Dws Law f Delict belngs t Law f Obligatins. Distinctin made between delicts that cause patrimnial damage (damnum iniuria datum) and thse that cause injury t persnality (iniuria). Three pillars f the law f delict: 1. Acti legis Aquiliae: Claim damages fr wrngful and culpable causing f patrimnial damage 2. Acti iniuriarum: Claim satisfactin fr wrngful and intentinal injury t persnality. 3. Actin fr pain and suffering: Claim cmpensatin fr wrngful and culpable impairment f bdily r physical-mental integrity. Difference between a delict and a breach f cntract: Seems the same, but a breach f cntract is nly cnstituted by the nn-fulfilment by a cntractual party f a persnal right(aka claim), r an bligatin t perfrm. Dws remedies are primarily directed at enfrcement, fulfilment r executin f the cntract. Delictual remedies directed at damages and nt fulfilment. Law f cntract prvides specific rules/remedies fr breach f cntract that are nt applicable t a delict. Delict=breach f duty impsed by law. Breach f cntract=breach f duty vluntarily assumed. 1
Difference between delict and crime: Distinctin between private and public law. Prtect individual vs prtects public interest. Delictual remedies are cmpensatinary, while criminal samctins are f a penal nature, t punish criminal fr transgressin against public interest. Each delict nt necessarily a crime and vice versa. Cnstitutin= supreme law f RSA. Chapter2 (BOR) is applicable t all law, incl Delict. Vertical & hrizntal applicatin f Cnst can take place directly r indirectly. Fundamental rights it Law f Delict: Right t prperty Right t life Right t freedm and security f persn Right t privacy Right t human dignity Right t equality Right t freedm f expressin Right t freedm f religin, belief, pinin Right t assembly, demnstratin, picket, petitin Right t freedm f assciatin Right t freedm f trade, ccupatin, prfessin Nt every delict is necessarily a cnstitutinal wrng. Cnst. remedies aimed at affirming/enfrcing/prtecting/vindicating fundamental rights and deterring future vilatins f Ch2. Indirect applicatin implemented/applicable eg t pen-ended/flexible delictual principles, namely: Bni mres test fr wrngfulness Imputability test fr legal causatin Reasnable persn test fr negligence Plicy cnsideratin eg reasnableness, fairness and justice 2
SU 3: THE ACT Cnduct is prerequisite fr delictual liability. Cnduct=vluntary human act r missin. Characteristics f cnduct: Human being (natural r juristic persn) Vluntarily (mental ability t cntrl muscular mvements); desn t have t be willed/ratinal t be vluntary; defence is autmatism Cmmissin r missin Defence f autmatism: Cnduct nt vluntary. Dws he acted mechanically. Fllwing cnditins may cause persn t act invluntarily (incapable f cntrlling bdily mvements): Abslute cmpulsin (vis absluta); by human agency r frces f nature Sleep Uncnsciusness A fainting fit An epileptic fit Serius intxicatin A blackut Reflex mvements Strng emtinal pressure Mental disease Hypnsis Heart attack Certain ther cnditins This defence will nt succeed where persn/defendant intentinally created a situatin in which he acts invluntarily t harm anther. Dws actin libera in causa. Will still be liable fr his culpable cnduct. Will als nt succeed where he was negligent wrt his cnduct, ie where reasnable man wuld have freseen pssibility f causing harm while in state f autmatism. Eg drinking while knwing yu have t drive. Ir sane autmatism (autmatism nt frm mental illness), nus n plaintiff t prve defendant acted vluntarily. But where defendant raises autmatism agv mental illness, he bears nus t prve lack f cnduct. Liability fr missin (failure t take psitive step) is mre restricted than liability fr cmmissin. Law hesitant t declare legal duty n persn t act psitively t prevent damage t anther. 3
SU 4: WRONGFULNESS - INTRO Wrngful=legally reprehensible r unreasnable Dual investigatin ir wrngfulness: 1. Did act cause harmful result? Ie, factual infringement 2. Did this take place in a legally reprehensible/unreasnable manner? Ie, vilatin f legal nrms Act nly delictually wrngful when it has factual infringement f individual interest as cnsequence. If such cnsequence is lacking, act nt wrngful. Act & cnsequences separated by time+space. Dws unnecessary t emply nasciturus fictin t grant delictual actin t child brn with defects ar pre-natal injuries - Pinchin v Santam Insurance C Ltd. SU 5: WRONGFULNESS BONI MORES AS TEST Criterin/nrm fr determining unlawfulness f infringement = Bni mres (legal cnvictins f cmmunity) Objective test based n reasnableness: Based n legal cnvictins f cmmunity and n all circumstances, did defendant infringe interest f plaintiff reasnably r unreasnably? Ie balancing f interests. Nature f balancing prcess: Curt must weigh cnflicting interests in light f circumstances. Factrs influencing balancing prcess: Nature/extent f harm Nature/extent f freseeable lss Value f harmful cnduct t defendant/sciety Cst/effrt f preventin steps Degree f prbability f success f such steps Nature f relatinship between parties Mtive f defendant Knwledge that his cnduct might cause harm Ecnmic cnsideratins Legal psitin in ther cuntries Ethical/mral issues Public interest/public plicy (incl values f Cnstitutin) Legal cnvictins must incrprate Cnst values and give effect t them 4
Curt must develp bni mres as part f cmmn law it spirit/purprt/bject f BOR Dws interpret wrngfulness mre widely t prtect values in BOR A delictual criterin: Nt cncerned with what the cmmunity regard as scially, mrally, ethically r religiusly wrng, but rather whether they regard act as delictually wrng. Als nly lk at infringement f individual interest. An bjective criterin: Legal cnvictins f cmmunity t be taken as the legal cnvictins f plicy makers such as legislature and judges. Judge must define and interpret legal cnvictins f cmmunity wrt rights/principles/curt cases where cnvictins f cmmunity fund expressin. Subjective factrs nrmally irrelevant, eg defendant s mtive. Hnest mistake des nt make cnduct lawful, but may exclude fault. Smetimes subjective factrs can play rle. Seldm necessary t make use f bni mres test. Rather lk at the infringement f an interest t indicate wrngfulness. Fact f infringement=prima facie wrngfulness. Ie prvisinally deduce wrngfulness. Clser investigatin can, hwever, reveal grund f justificatin, making cnduct lawful. Mre precise methds than bni mres test available, eg specific legal nrms and dctrines: Infringement f subjective right (cmmissin) Nn-cmpliance with legal duty t act (missin) Gives mre accurate slutins t questin f wrngfulness (these are practical applicatins f general criterin f reasnableness). Basically, cnduct is wrngful if it infringes a subjective right r vilates a legal duty. Use bni mres test as supplementary criterin. Eg use in nvel cases (where specific frms f delict have nt crystallised), r fr brderline cases. SU 6: WRONGFULNESS INFRINGEMENT OF A SUBJECTIVE RIGHT All peple have subjective rights. Dual relatinship: subject-bject & subject-subject. Limits/bundaries f persn s rights determined by law. One persn has right t smething, and thers have legal duty t respect that right. Five classes f right: Real rights things (car/bk) Persnality rights aspects f persnality (gd name/hnur) Persnal rights acts and perfrmances (delivery/payment/services) Immaterial prperty rights intangible prducts f mind (inventin/pem) 5
Persnal immaterial prperty rights endeavur cnnected with persnality (creditwrthiness/earning capacity) First 4=abslute Last 1=relative Tw cnditins t make an interest wrthy f prtectin (ie legally recgnised as subjective right): 1. Value 2. Measure f independence Requirements fr infringement f a subjective right is dual investigatin: 1. Was hlder disturbed in use/enjyment f right, ie subject-bject disturbance? (Determine bm evidence) 2. Was infringement legally reprehensible? (General reasnableness criterin, nl bni mres) But if (1) is satisfied and persn can shw justificatin, will nt be wrngful. SU 7: WRONGFULNESS BREACH OF A LEGAL DUTY Smetimes n clearly defined right exists. Then determine wrngfulness it breach f legal duty. Ie case f missin r pure ecnmic lss. Test still the same: Lk at bjective reasnableness f cnduct f persn. Dws als refer t bni mres/legal cnvictins Rather use term legal duty, than duty f care (which can refer t either wrngfulness r fault it negligence, ie duty f care f reasnable man). SU 8: WRONGFULNESS LIABILITY ITO OMISSION & BREACH OF STATUTORY DUTY Generally n liability fr an missin. Only where a legal duty rested n him t act psitively t prevent harm, which he failed t cmply with. Legal duty determined wrt flexible criterin, nl legal plicy/legal cnvictins f cmmunity. Objective test. Factrs indicating existence f legal duty t act: Prir psitive cnduct. Omissin per cmmissinem rule Persn creates a surce f danger by a psitive act, but then fails t eliminate that danger Is nt a prerequisite fr legal duty, but gives strng indicatin theref 6
Cntrl f a dangerus bject Was there actual cntrl ver bject (eg animal/fire/hle in grund/even criminal), r was there legal duty n persn t take preventative steps Rules f law Cmmn law r statutes Eg wner must prvide lateral supprt fr neighbur s land; duty f plice t prevent public frm suffering damage Special relatinship between parties Pliceman/citizen Officer/prisner Emplyer/emplyee Particular ffice Persn s ccupatin places duty n him Cntract ir safety f 3 rd party Eg appinted lifeguard at pl Creatin f impressin that 3 rd party will be prtected One party acts in reasnable reliance n impressin created by anther Legal duty rests n party creating the impressin t prevent prejudice Several f these factrs may play a rle at nce. Dws take ALL circumstances int accunt t see if legal duty t act was present. Cmmn law/statutry law/cnstitutinal law indicative f legal duty. Factrs that may place psitive duty n state t prtect rights f persns: Fact that vilatin was bserved by emplyees f state Knwledge/freseeability by state f prejudice Special relatinship btw state and victim Cntact t prtect victim Factual cntrl by state ver dangerus situatin Representatin that victim will be prtected Pssible extent f victim s harm Breach f a statutry duty: Cnduct in breach f statutry duty is prima facie wrngful. Must als be legally reprehensible. Plaintiff must prve: That relevant statutry measure (eg interdict) is private law remedy That this statutry duty was impsed fr plaintiff s benefit That nature f harm is cntemplated by the enactment That defendant in fact transgressed this prvisin That there was a causal nexus (link) transgressin and harm 7
SU 9: WRONGFULNESS JUSTIFICATION: DEFENCE A grund f justificatin excludes wrngfulness. Dws practical expressins f bni mres, where persns actually acted reasnable. Nt numerus clauses (ie nt limited number). Onus t prve grund f defence, rests with defendant. Traditinal justificatins: Defence Necessity Prvcatin Cnsent Statutry authrity Public authrity & fficial cmmand Pwer t discipline Defence (r private defence): Present when the defendant directs his actins against anther persn s (actual/imminent threatening) wrngful act, t prtect his r anther s interests. Bth attack and defence actin must meet certain requirements fr this defence t perate. Requirements fr the attack: Must be a human act Cmmissin r missin Aggressin by animal nt an attack in this case (necessity may be justificatin hwever) Unless persn uses animal, then defence is against persn s human cnduct Must be wrngful (threaten r vilate legally prtected interest withut justificatin) n fault needed hwever (eg can act against insane persn, r persn wh wrngfully believes he is acting lawful) Threaten eg life, bdily integrity, hnur, prperty, pssessin Persn may nt act in defence against a lawful attack, eg resisting arrest Als may nt act in defence against an attack he cnsented t, eg sprt/duel Wrngfulness always cncerns an bjective test, reasnable grunds fr private defence must exist bjectively. Des nt cncern itself with persn s subjective impressin f events (but may still escape liability if he did nt have fault) Attack must already have cmmenced r be imminently threatening, but must nt yet have ceased des nt need t be directed at the defender Dn t have t distinguish between a threatened and actual attack Can t act in defence where attack already ceased; that wuld be unjustified revenge Can als defend 3 rd party frm unlawful attack Requirements fr the defence: Must be directed against the aggressr himself Must be necessary t prtect the threatened right 8
If interest can be prtected in less detrimental way, the defence is wrngful Dws defence must be the nly reasnable alternative Persn must flee, unless it expses him t danger, r causes an infringement f his interest But depends n circumstances f each case, n hard rules The act f defence must nt be mre harmful than is necessary t ward ff the attack Must be in prprtin t attack Judge the reasnableness bjectively Threatened interest f defendant and infringed interest f attacker need nt be f equal value Means dn t need t be similar either Abslute prprtinality nt needed, but an extreme imbalance als unacceptable (eg killing persn t defend piece f butter) Criteria fr reasnableness: Value f interests may differ Interest need nt be similar in character Means f defence need nt be same as means f attacker SU 10: WRONGFULNESS JUSTIFICATION: NECESSITY State f necessity exists when defendant is placed in such a psitin by superir frce (vis mair), that he is able t prtect his interest, r smene else s, nly by reasnably vilating the interests f an inncent 3 rd party. A state f necessity gives a persn the pwer t act in a way which, in the absence f necessity, wuld have wrngfully infringed a 3 rd persn s right. Distinguish frm private defence. There a defence is directed at an attack by the wrngder. Here, persn s cnduct vilates the interest f an inncent 3 rd party (even an animal). Guidelines fr determining the presence f necessity: Questin must be whether state f emergency really exists? (Nt whether it was caused by human/animal/nature) Unclear if persn can rely n necessity which he himself created (seems he may, but may then be held liable fr eg crime) Ppular view: every act cmmitted ut f necessity is lawful, irrespective f wh caused it, but damage thereby may still be actinable because f causality t preceding wrngful act Pssible existence f state f necessity must be determined bjectively Take int cnsideratin the circumstances which actually prevailed and actual cnsequences Questin: did it exist? (nt: did defendant believe it t exist) Fear/state f terrr nt really relevant it wrngfulness (may be fr fault) Putative necessity nt sufficient fr defence f necessity (may exclude fault thugh) The state f necessity must be present r imminent Must nt have terminated 9
Must nt be expected nly in the future Defendant may als prtect interest f thers May eg act t prtect yur child Same persn may even be the prejudiced as well as prtected party Nt nly life/physical integrity may be prtected ut f necessity May als prtect eg prperty Cnversely, interests such as hnur/privacy/identity/freedm/feelings may be vilated in state f necessity (eg dctr t save persn s life) Persn can t rely n necessity where he is legally cmpelled t endure the danger If law cmpels persn t endure it, als means he lacks the pwer t avid it In general, the interest sacrificed must nt be mre valuable than the interest that is prtected Defendant must nt cause mre harm than is necessary Prprtinality f interests applies here (in cntrast t defence) Hmicide (killing inncent persn) may be justified Befre S v Gliath case, this was nt accepted Persn regards his wn life as mre imprtant than life f anther persn Cmpulsin (frm f necessity) may justify hmicide Act f necessity must be the nly reasnably pssible means f escaping the danger Act must be necessary t prtect threatened right N ther reasnable means available If persn can escape by fleeing, must rather d s SU 11: WRONGFULNESS JUSTIFICATION: PROVOCATION Prvcatin is present when a defendant is prvked r incited by wrds r actins t cause harm t the plaintiff. Curt sees this as a cmplete defence, in that the plaintiff wh prvked the defendant may frfeit cmpensatin fr injury caused. Dws renders defendant s cnduct lawful. Assessed bjectively by weighing prvcative cnduct against reactin t it, bm bni mres (bjective) test. Different frm private defence. There a persn reacts as situatin takes place, r directly befre. Here, reactin immediately fllws the prvcatin that already terminated. Dws rather an act f revenge than f defence. Prvcatin may be a defence fr actins vilating different aspects f persnality, eg hnur/reputatin/physical integrity. But ur curts generally dn t allw physical attack in retaliatin against prvcative wrds (but may act as mitigatin). But this is a flexible principle (still lk at legal cnvictins f cmmunity). Tw requirements fr cmplete defence against a physical assault as prvcatin: 10
1. Nature f prvcative cnduct must reasnably justify reactin bm physical assault View bjectively Wuld reasnable persn in defendant s psitin have acted the same? 2. Defendant s cnduct must be a reasnable and immediate retaliatin against bdy f plaintiff Reasnable here = in prprtin it nature/degree t the assault f the first aggressr Dws different interest must be f equal value and similar nature Defamatin r insult made in reactin t prvcatin, may be justified by applying same test as abve: 1. Nature f prvcative cnduct must reasnably justify reactin bm defaming/insult Objective test 2. Defamatin/insult in retrti must stay prprtinal Cmpensatin: the tw iniuriae cancel each ther SU 12: WRONGFULNESS JUSTIFICATION: CONSENT Where a persn (legally capable f expressing his will), gives cnsent t injury/harm, the causing f such harm will be lawful. Dws he permits the defendant t vilate his interest. This principle is embdied in the vlenti maxim, vlenti nn fit iniuria (a willing persn is nt wrnged/he wh cnsents cannt be injured). Frms f cnsent: Cnsent t injury Cnsents t specific harm Eg remving appendix Cnsent t risk f injury/vluntary assumptin f risk (smetimes als used t refer t cntributry intent, dn t get mixed up) stick with cnsent t risk f injury! Cnsents t risk f harm caused by cnduct Eg cnsent t risk that peratin may have side effects Eg participatin in sprt Characteristics f cnsent as grund f justificatin: Cnsent = unilateral act Need nt necessarily be made knwn t defendant. Dws agreement/cntract unnecessary t relieve actr f liability May als ne unilaterally revked @ any stage preceding cnduct Cnsent = legal act that restricts the injured persn s rights T be a legal act, cnsent must be apparent/manifest/brught t light Cnsent will nt be held t exist where it is nt evident Cnsent may be given expressly r tacitly 11
Dws by wrds r by cnduct Mere submissin is nt cnsent Neither is knwledge f prejudice = cnsent Encuragement t injure may pint t cnsent, but nt always Cnsent must be given befre the cnduct Apprval after the act is nt cnsent (but may amunt t n actin being taken) Prejudiced persn himself must cnsent On exceptinal circumstances may cnsent be given n behalf f smene else Cnsent is a questin f fact, if defendant thught there was cnsent, n defence (but fault may be excluded) Requirements fr valid cnsent: Given freely/vluntarily Frced cnsent is nt valid cnsent Persn must be capable f vlitin Intellectually mature t appreciate implicatins f his act (and nt mentally ill r under influence f substances) Cnsenting persn must have full knwledge f extent f (pssible) prejudice Must be infrmed cnsent Eg dctr s duty t infrm patient f risks Cnsenting party must realise/appreciate fully what nature/extent f harm will be Mere knwledge nt sufficient (eg must nt nly knw risks, but understand them) Persn must cmprehend and understand the nature/extent f risk/harm Must in fact subjectively cnsent Essential elements are knwledge/appreciatin/cnsent; first 2 alne des nt necessarily amunt t cnsent Cnsent must be permitted by legal rder, dws nt cntra bns mres Impairment must fall within limits f cnsent Cnsent t bdily injury usually cntra bns mres, unless cntrary prven, eg sprt/medical treatment The pactum de nn petend in anticipand: cntractual undertaking nt t institute actin against actr. Same effect as cnsent, but reasn fr nn-liability is different (wrngfulness nt excluded, nly the resultant actin). Eg free pass n train n cnditin that railway will nt be liable fr injury due t their negligence. SU 13: WRONGFULNESS JUSTIFICATION: STATUTORY AUTHORITY, OFFICIAL CAPACITY, OFFICIAL COMMAND & POWER TO DISCIPLINE STATUTORY AUTHORITY A persn des nt act wrngfully, if he perfrms an act (which is therwise wrngful) while exercising a statutry authrity. 12
Dws harmful cnduct authrised by law is lawful/justified. Statute limits rights f prejudiced persn Tw principles: 1. Statute must authrise the infringement f a particular interest 2. The cnduct must nt exceed the bundaries f the authrity cnferred Intent f legislature determined wrt IOS. Appears frm Act itself, but als lk at guidelines: If statute is directry, infringement is authrised. Injured persn nt entitled t cmpensatin If statute is permissive, presume infringement is nt authrised. Presumptin referred t abve falls away if authrity is entrusted t a public bdy acting in public interest If authrised act is circumscribed/lcalised, presume infringement is authrised Eg building dam in certain place If authrisatin is permissive/general (nt lcalised), presume infringement is nt authrised Guidelines t see if act fell in bundaries f authrisatin: Must nt have been pssible fr defendant t exercise pwer withut infringement (nus n defendant) Defendant s cnduct must have been reasnable Must nt have been pssible t limit/prevent damage by ther methd Onus n plaintiff t shw reasnable alternative existed Arrestr may use reasnably necessary frce, prprtinal t circumstances, t affect arrest (where suspect flees/resists and cannt be arrested withut using frce). Only in certain circumstances justified t use deadly frce (where he n reasnable grunds believes it s necessary): T prtect arrestr/assistant arrestr/anther persn frm imminent/future death r grievus bdily harm Where there is a substantial risk that suspect will cause imminent death/grievus bdily harm if arrest is delayed The ffence is in prgress & is f serius nature invlving life threatening vilence r strng likelihd f grievus bdily harm Fur requirements fr use f lethal frce: 1. Arrestr must n reasnable grunds suspect 2. That lethal frce is imminently necessary 3. T prtect any persn s life/bdy 4. Against cnduct f suspect that is immediately threatening r will happen in future 13
OFFICIAL CAPACITY Certain public fficials like law enfrcement fficers (security/plice) and judicial fficers (magistrates/judges) are authrised by law t perfrm certain acts. Shuld they cause damage in the prcess, their cnduct will be justified (lawful) and they wn t be liable. But if they exceed their authrity (eg by malice/mala fide), it s unreasnable & they will be held liable. EXECUTION OF AN OFFICIAL COMMAND Infringement f interest in carrying ut a lawful cmmand is nt wrngful (eg cnstable shts fleeing murderer at rder f his fficer). This is basically als = fficial capacity. Requirements fr such defence where a wrngful demand was executed: Order must cme frm persn in psitin ver accused that is lawfully authrised Must be duty n accused t bey rder N abslute/blind duty Just wrngfulness it reasnable persn If wrngful rder, defence shuld rather be necessity in frm f cmpulsin (cmpulsin = rder given by superir) Accused must have dne n mre harm than was necessary t carry ut rder POWER TO DISCIPLINE It cmmn law, parents/persns in lc parentis have pwer t punish fr educatin/crrectin. May smetimes include crpral punishment. May delegate pwer t anther persn. RSA law prhibits crpral punishment in schls. Parent may nt delegate this pwer t persns in public/private schls therefre. Must be exercised mderately and reasnably. Purpse must be t crrect, if it desn t have this effect, it must nt be inflicted repeatedly. Malice/imprper mtive indicated wrngfulness. Factrs fr mderate/reasnable punishment: Nature/seriusness f transgressin Degree f punishment/frce inflicted Physical/mental cnditin f persn punished Gender/age f child Physical dispsitin f child Means f crrectin Purpse/mtive f punisher Presumptin f reasnableness; persn alleging ppsite bears nus. 14
SU 14: WRONGFULNESS ABUSE OF RIGHTS & NUISANCE 15