Forms of damnum iniuria datum

Question 1

Whichparties dont have a claim for injury or death of another?

Answer 1

*Contracting parties

*Heirs and legatees

Question 2

Contracting parties

Union Government v Ocean Accident and Guarantee Corporation Ltd

Answer 2

Persons who stands or stood in a contractual relationship to the injured or deceased person cannot claim for the loss they suffered where the injury or death constituted a negligent interference with the contractual relationship.

In the case, it was decided that an employer cannot institute the Aquilian action for loss suffered as a result of injury to an employee or a person who has a contractual (personal) right of support cannot in principle claim for loss of support as a result of the death or injury of the person who was under a duty to support him/her

Question 3

Heirs and legatees

Lockhat’s Estate v North British and Mercantile Insurance Co Ltd-

Answer 3

An heir or legatee has no claim for damages on the ground that the premature death of the deceased had probably prevented his future estate from being larger.

“heirs and legatees of the deceased . . . have no claim upon the wrongdoer. They may have inherited less than they might have done had the deceased lived longer, but that gives them no right against the wrongdoer.” Most important reason for refusing action is fact that fortune of an estate is unpredictable and that an heir will consequently not be in a position to prove his loss. Instead of growing larger, the estate might become appreciably smaller in the future. Any attempt to determine the future value of the estate would amount to pure speculation.

Question 4

Whoare the people who can cliam via Aquilian action for loss suffered as a result of the death of or injury to another person

Answer 4

Executor
Heirs and immediate family
Person having duty of support
Master-domestic servant

Question 5

Executor;

Answer 5

The executor of the estate of the deceased, whose death was caused in a wrongful and culpable manner, may claim damages from the wrongdoer on behalf of the estate in certain cases.

Includes compensation for medical expenses (that were incurred to treat the eventually fatal injuries of the deceased), loss of income (from the time of the injury of the deceased until his death) and funeral expenses.

Except where litis contestatio occurred before the death of the deceased, the executor can’t claim compensation for the loss of the deceased’s future income or earnings. Reason is that the deceased is not regarded as an asset in his estate which can be destroyed. Thus his death does not in itself bring about an actionable financial loss

Question 6

Heirs and immediate family:

Answer 6

funeral expenses; Should an heir or a member of the deceased’s immediate family (such as his spouse, parent or child) instead of the executor of the estate meet the funeral expenses, the former may recover his expenses from the wrongdoer. The claim for compensation in this regard is based on the duty to bury the deceased

Question 7

Persons having a duty of support

Answer 7

In principle, a person who bears a duty of support (such as a father or a husband) may institute the Aquilian action against a wrongdoer who wrongfully and negligently injures the former’s dependant (such as a child or a wife) and thereby adds additional liabilities to his duty (for example, medical costs or household expenses).

This claim for compensation flows from the duty of the person involved to support his dependants. According to our courts the action is not based on a delict committed against the person who has the duty of support, but on non-compliance with a duty of care towards the dependant- this view unacceptable.

Self-evident that causing injury to the dependant and the resultant expenses in principle constitute a breach of this duty, and consequently a delict against the provider. Where the patrimonial loss was caused by the negligent behaviour of both the third party and the dependant, they are considered to be joint wrongdoers, and thus each has committed a delict against the provider. Seen in this light, the latter’s claim is undoubtedly based on a delict committed against himself.

Question 8

Master-domestic servant;

Answer 8

The position at common law that the actio legis Aquiliae was available to a master if he suffered patrimonial damage as a result of wrongful and culpable injury to his domestic servant was confirmed obiter in Union Government v Ocean Accident and Guarantee Corporation Ltd.

However, in Pike v Minister of

Question 9

De Vos v SA Eagle Versekeringsmaatskappy Bpk 1985
(casefor master domestic servant)

Answer 9

Facts & ratio:
Appellant instituted action for damages in terms of Compulsory Motor Vehicle Insurance Act against respondent. A alleged her husband applied for policy covering a mortgage bond and approved subject to first payment. Before the first premium was paid, the deceased was killed as a result of the negligence of the driver of the insured vehicle and the appellant sued the respondent as insurer of the vehicle for payment, of the sum of the policy.

LQ; had Aquilian liability reached a stage of development in SA law that the executor of a deceased’s estate can make a claim for compensation for damages suffered as a result of the loss of a conditional right, which had vested in the deceased before his death, by reason of the negligent and unlawful causing of the death of the deceased

Court refused to award damages where the deceased’s application for life insurance had been accepted but he was killed negligently before he could pay the first premium.
The court argued that there was no damage in casu since the policy would not have been payable had the deceased still been alive. There was some kind of loss as the premature death of the deceased prevented the policy from ever coming into operation. One may argue that this kind of loss does not constitute damage or, if it is damage, the law refuses damages for reasons of policy.

Question 10

Action for dependants

when is it used and describe its development

Answer 10

Instituted when there’s a death of a breadwinner

Developed from Germanic customary law and was accepted by the old writers as an actio utilis in terms of the lex Aquilia

Question 11

What must the dependent prove in order to claim loss of support?

Answer 11

Dependant has to prove that the death of the breadwinner was caused wrongfully and culpably.

The dependant institutes the action in his name, since the courts have held that the action does not derive from the deceased or his estate, but that the dependant is directly entitled thereto as a result of his loss of support.

Question 12

What is the basis of the dependant’s claim?

Answer 12

the dependant’s claim is based on the wrongful, culpable causing of damage to him, the dependant himself. Wrongfulness lies in the infringement of the dependant’s personal right of support from the breadwinner.

Question 13

Requirements for claim for loss of support; from SCA

Answer 13

(i) The deceased, while he was still alive, must have been under a legal duty to support the dependant (which duty must have been legally enforceable inter partes).

(ii) The existence of a duty of support is subject to the qualifications that the dependant must require support and the breadwinner must be capable of providing such support

(iii) The dependant must have had a right to (such) support (which right must be capable of legal protection against third parties).

Question 14

How must the existence of the right to support by dependant be determined?

Answer 14

The existence of a right to support must be determined regarding the boni mores criterion of wrongfulness.

Question 15

Why the requirements for claiming loss of supported may be supoorted in principle

Answer 15

These requirements may be supported in principle, because for each legal duty of support, there is a concomitant personal right to support, the infringement of which points to wrongful conduct against the dependant.

Question 16

Of course, the legal duty of support (the correllate right of which can also be protected against third parties) can arise from any legally recognised source.

List the five sources that have received recognition

Answer 16

Legal marriage, not restricted to civil marriages entered into according to the Marriage Act 25 of 1961, but also include any “solemn marriage in accordance with the tenets of recognised and accepted faith” and indigenous marriages.

Civil union; Surviving partners in civil unions concluded in terms of the Civil Union Act 17 of 2006 are entitled to claim maintenance from their deceased partners estate

Blood relations;
*A child (even a major) has a right to support from both his father and his mother. Similarly, a parent has a right to support from his child (also a minor).
*Grandparents have a right to support from grandchildren but only where their children are dead or cannot provide support.
*A brother (or sister) may claim support from brothers or sisters if his parents are unable to support him. The duty of support concerning collateral consanguinity does not extend beyond brothers and sisters (not in-laws, no step etc)

Adopted children are in the same position as bloodrelatives

Statute;
A black woman married according to an indigenous-law customary union has a statutory delictual claim for loss of support as a result of her husband’s death.

Court order; A divorced woman who is entitled to support from her former husband in terms of a court order may institute a dependant’s action upon his death

Contract; A person who has a mere contractual claim to support, has no claim for loss of support resulting from the death of the person bearing the duty of support.
Such a right to support is in principle deemed not to be enforceable against third parties, lest the liability of wrongdoers according to dependants’ actions grow too wide.
This does not mean that an interference with a contractual relationship of support will never be contra bonos mores and accordingly wrongful.

Question 17

Defences against a claim for support

Answer 17

> Infringement of the dependant’s interest in receiving support is also LAWFUL because in the circumstances the infringement CANNOT be regarded as UNREASONABLE or cCONTRA BONOS MORES

> Where the breadwinner concluded a PACTUM DE NON PATENDO IN ANTICIPADO (contractual principle in terms of which parties conclude an agreement or undertaking not to institute an action against each other.) with the defendant the position changes.
it should make a difference whether the dependant’s action is based on a delict against the breadwinner or the dependant. If the former approach is followed, the pactum, to be logically consistent, should be a complete defence against the action of dependants

> CONTRIBUTORY INTENT (voluntary assumption of risk) on the part of the breadwinner, it should also make a difference which of the two approaches is followed

> CONTRIBUTORY NEGLIGENCE on part of the breadwinner

Question 18

Jamesons Minors v CSAR
In showing how the court does not approve of pactum non petendo in anticipando view

Answer 18

Breadwinner was killed in a train accident caused by the negligent conduct of the railways. The breadwinner was a passenger in possession of what is known as a “free pass” that excluded liability of the railways in the specific circumstances. The court decided that such a pactum was no defence against the dependants’ action

Question 19

Reason why the view in the Jameson Minors case can be accepted

Answer 19

This view can be accepted because it accords with the theoretically correct approach to the dependants’ action (according to which the pactum is res inter alios acta concerning the dependants’ action),
and on the other hand, because a breadwinner should in any case not be able to conclude a pactum de non petendo which burdens his dependants, since such conduct would be contra bonos mores.

Question 20

Lampert and Hefer on contributory intent

Answer 20

If plaintiff in Lampert v Hefer died and her dependant had instituted a claim: if one regards the dependant’s claim as based on a delict against the breadwinner, and if one accepts that the defence of contributory intent, although not eo nomine, is recognised in positive law, it should constitute a complete defence against the action of the dependants, the breadwinner’s intent cancels the negligence of the third party.
On the other hand to apply theoretically correct theory, the defence of contributory intent could then not be raised against the dependant because, as far as he is concerned, this fact would be res inter alios acta (a thing done between some does not harm or benefit others).

The defence of contributory intent is only of academic interest in this regard since the Apportionment of Damages Act, which endorses the theoretically correct approach, by implication treats the breadwinner and the third party as joint wrongdoers as against the dependant. The dependant can thus recover in full for his loss of support.

Question 21

Elaborate on breadwinners own contributory negligence;

Answer 21

it should also make a difference in this case whether the positive law or the theoretically correct approach is followed.

In the former case, the position before 1971: The Apportionment of Damages Act 34 of 1956 left the common law principles concerning the dependants’ action unchanged. Accordingly, the so-called last opportunity rule still applied. Meaning the breadwinner had the last opportunity to avoid the accident, this constituted a complete defence against the dependant’s action.

However, the dependant could succeed with his full claim if the third party had the last opportunity of avoiding the harm. By contrast, dependant’s claim is regarded as being based on a delict committed against the dependant himself, the fact that the breadwinner had the last opportunity (or was contributorily negligent) could not be raised against the dependant (res inter alios acta).

Position is presently regulated by the Apportionment of Damages Act. The effect is that the breadwinner and the third party are regarded as joint wrongdoers as against the dependant and he can, therefore, claim his compensation in full

Question 22

Jnjury to the breadwinner

Answer 22

The dependants of a person injured in a wrongful and culpable manner should, as in the case of death, be able to claim loss of support with the Aquilian action.

In principle there is no distinction between the two cases. Principles apply mutatis mutandis. (making necessary alterations while not affecting the main point at issue)

Question 23

Decisions that grant the Aquilian action to dependants of an injured married woman who has to support.

Answer 23

ABBOTT V BERGMAN
a man, married IN COMMUNITY OF PROPERTY, was allowed to claim damages inter alia for the “loss of his wife’s services in running the boarding-house”.

In PLOTKIN V WESTERN ASSURANCE LTD
where the parties were married OUT OF COMMUNITY OF PROPERTY, the court granted the husband damages in circumstances where his injured wife was legally liable to contribute to the common household.

In EDRMAN V SANTAM INSURANCE CO LTD the court was not unwilling to grant the husband an action for loss of support as a result of injuries to his wife, but concluded “that the primary claim for the loss of her housekeeping ability should be the wife’s and that that is in accord with modern social ideas.”

DE VAAL V MESSING
lends support to the opposite view of above. The court refused a claim for loss of support by the wife and children as a result of injury to the husband.
According to Greenberg J, dependants cannot claim in these circumstances because the injured breadwinner himself must institute an action for loss of future income which can then be utilised to support the dependants. He argued that “any claim by his [the injured person’s] dependants against the wrongdoer would be met by the simple answer that they have suffered no damage”.
This argument can’t always be supported. Consequently, the dependant should in principle have an action if he can prove loss of support. This approach is endorsed by the Apportionment of Damages Act since 1971: The dependant is granted an action if the injured breadwinner and the third party acted negligently and are regarded as joint wrongdoers as against the dependant

Question 24

What is a psychological lesion/emotional shock?

Answer 24

a sudden painful emotion or fright resulting from the awareness or observation of an unwelcome or disturbing event which causes unpleasant emotions such as fear, anxiety or grief.

Question 25

Two requirementts of emotional shock

Answer 25

(a) the shock (or psychological disturbance) MUST CONCERN WRONGFULNESS as must have originated from a physical injury or resulted in harm to the physical constitution;

(b) IT MUST CONSTITUTE NEGLIGENCE OR LEGAL CAUSATION the aggrieved party himself must have been in personal danger of being physically injured.

Question 26

Wrongfulness concerning emotional shock

Answer 26

requirement of physical harm indicates an infringement of the right to physical integrity which is per se wrongful.

This requirement was rejected in Bester. The artificial attempt to distinguish between physical and psychological harm necessitated by this requirement was also dismissed.

According to Bester, the brain and nervous system are as much a part of the physical body as an arm or a leg. As a result, a physical injury is not necessary to found liability.

The effect of equating physical and psychological harm is that a slight emotional shock will in principle also infringe the personality right to physical integrity and consequently be wrongful.

To be actionable, the harm caused by the shock must be reasonably serious

Question 27

Negligence and legal causation concerning emotional shock

Answer 27

The requirement of personal danger was similarly rejected in Bester and replaced by the yardstick of reasonable foreseeability of harm.

It is submitted that the question of negligence arises where the shock or psychiatric injury is the only or at least (one of) the first harmful consequence/s of the wrongdoer’s conduct

Where the emotional shock is a further consequence of the wrongdoer’s already established negligent act, the question of legal causation is at hand

test for negligence not appropriate to ascertain liability for remote consequences.

Question 28

Barnard v Santam Bpk 1999
on psychological lesion

Answer 28

Facts; Plaintiff suffered nervous shock and psychic trauma and grief when she heard the news that her young son died. Plaintiff didn’t suffer any physical injury.

LQ; did the shock and psychic trauma constitute recoverable damages? Did the plaintiff’s grief as result of sons death constitute actionable damage?

Court: First Q yes and 2nd no.

Ratio; court allowed the claim based on shock and psychic trauma (psychic lesion), but disallowed the claim based on grief as a result of the loss of her son.
“Nervous shock” isn’t only an obsolete term without any psychiatric meaning, but also misleading, the only relevant question is whether the plaintiff suffered a recognizable psychological lesion. Mere grief doesn’t qualify for purposes of recovery of damages.

Criteria of reasonable foreseeability as it applies to negligence or legal causation

Question 29

What are the factors that play a role in foreseeability test of emotional shock?

Answer 29

(1)The fact that the psychological lesion resulted from physical injury, was connected with such injury or sustained together with it

(2)the fact that the plaintiff was in personal danger of being physically injured

(3) the fact that the plaintiff was informed of the death or injury of a close relative

(4) the fact that the plaintiff personally witnessed the death or injury of someone with whom the plaintiff had a close relationship. Must be noted that once the court has found that reasonably serious emotional shock was reasonably foreseeable, the wrongdoer is then liable for any detrimental physical or mental consequences ensuing from the emotional shock, regardless of whether such consequences were foreseeable as well.

Question 30

Application of the talem qualem rule

Answer 30

The so-called “thin skull” or talem qualem rule,
ie that “the wrongdoer takes his victim as he finds him”, thus applies here.

Meaning, a defendant can’t escape liability by proving that the plaintiff was particularly susceptible to the prejudicial consequences of the shock and that the consequences were therefore not reasonably foreseeable

Question 31

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973

Answer 31

Facts: 2 brothers ran across street and 1 got hit by a car causing his death. Car didn’t touch other brother although he was in personal danger. As result of personal danger and witnessing his brothers accident he sufferd from psychological neurosis causing personality change. No physical injury. Claim for satisfaction for shock and indisposition was instituted.

LQ; Would a claim for shock and indisposition on behalf of the surviving child succeed?

Dismissed by court a quo but succeeded on appeal

oRatio-Impairment of personality and patrimonial loss resulting from psychiatric injury or emotional shock caused wrongfully and negligently/intentionally founds action for pain and suffering and actio legis Aquiliae in principle.

The court rejected requirement for physical harm for claim for emotional shock and the requirement that prejudiced person must have been in personal danger (replaced yardstick of reasonable foreseeability of emotional shock).

Question 32

Action for Pure economic loss

Answer 32

Aquilian action is in principle available to claim damages for pure economic loss.

Question 33

what is economic loss

Answer 33

Economic loss can be described as patrimonial loss that does not result from damage to property or impairment of personality or financial loss that does flow from damage to property or impairment of personality, but which does not involve the plaintiff’s property or person; or if it does, the defendant did not cause such damage or injury. General requirements of delict apply

Question 34

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (SCA) on
DEF OF ECONOMIC LOSS

Answer 34

‘Pure economic loss’ in this context connotes loss that does not arise directly from damage to the plaintiff’s person or property but rather in consequence of the negligent act itself, such as loss of profit, being put to extra expenses or the diminution in the value of property”

Question 35

Arthur E Abrahams and Gross v Cohen 1991 (C) on attorneys failing to make timely payments (economic loss)

Answer 35

where a firm of attorneys, employed by the executors of a deceased estate to administer the estate, failed to take the necessary steps for the payment of the proceeds of certain policies to the beneficiaries within a reasonable time – in casu payment only took place five years after the deceased’s death
–and consequently caused them financial loss;

Question 36

Knop v Johannesburg City Council 1995 (A) on town developers (economic loss)

Answer 36

where A, a town developer, as a result of a wrong decision of the City Council in connection with A’s application for the subdivision of a stand, suffered financial loss because he could not continue with his development project for a certain period.

Question 37

Hutchison 2000
(economic loss due to insurance broker)

Answer 37

where an insurance broker (defendant) omitted to nominate the plaintiff as beneficiary of a policy (taken out by her spouse) in the place of another person, as a result of which the plaintiff forfeited the proceeds of the policy at the death of her spouse.

Question 38

Economic loss “which does not involve the plaintiff’s property or person”

Answer 38

-examples; A negligently damages the cable that provides electricity to B’s (plaintiff) factory. B suffers consequential loss of production

A’s ship negligently damages B’s mooring buoy. This delays the discharge of the tanker of which C (plaintiff ) is the lessee and charterer. Consequently C, in terms of the agreement between him and the lessor, has to pay additional demurrage for the period of delay

Strictly speaking, one is also dealing with pure economic loss in cases of patrimonial damage as a result of the death or injury of another person since the plaintiff was not harmed in respect of his person (Santam Bpk v Henery 1999 (SCA)). As a rule these cases do not present particular problems as crystallised principles exist. The same applies concerning the economic loss which flows from damage to property where the plaintiff has a limited real right, or in historically justified cases, only a personal right in respect of the property.

Question 39

“or if it does, the defendant did not cause such damage or injury”

Answer 39

• Example; Kadir v Minister of Law and Order 1992 (C): As a result of the negligence of A, B’s motor car left the road and he was injured. Two constables (employees of defendant) who arrived on the

Question 40

Wrongfulness as an element of economic loss

Answer 40

wrongfulness lies either in the infringement of a subjective right, or in the breach of a legal duty to avoid damage

Infringement of a subjective right occurs fairly often in this regard, as in the case of unlawful competition, where the right to goodwill is involved, or the interference with another’s contractual relationship, where a personal right is frequently at stake. Courts= wrongfulness lies in breach of legal duty

Question 41

Role of General duty to prevent pure economic loss

Answer 41

This doesnt exist or that the factual causing of pure economic loss is not prima facie wrongful.

Consequently, it must be determined in each case whether, according to the circumstances, there was a legal duty to avoid pure economic loss.

The yardstick that must be applied in this determination is boni mores. The boni mores criterion implies a careful weighing up of the interests of the parties involved, taking into account the public interest.

Question 42

8 factors of the boni mores criterion

Answer 42

oKNOWLEDGE
the fact that the defendant knew or subjectively foresaw that his negligent conduct would cause damage to the plaintiff. Plays a role in legal duty.

oREASONABLE FORSEEABILITY
the fact that the defendant should have foreseen that negligent conduct on his part would harm the plaintiff. General rule is that the greater the foreseeability of damage, the greater the possibility that a legal duty to prevent damage exists.

oPRACTICAL MEASURES
The reasonableness of expenses involved in taking such steps in proportion to the damage the plaintiff suffered, and the relative ease with which the steps could have been taken, are also taken into account.

oPROFESSIONAL KNOWLEDGE AND COMPETENCE
Where the defendant is rendering professional services, he has a duty not to cause financial loss to others.

oEXTENT OF RISK
the degree or extent of the risk of economic loss being suffered by the plaintiff. This factor is indicative of the need for protection in a particular situation.

oEXTENT OF LOSS
the fact that the situation can lead to indeterminate liability or is “one fraught with an overwhelming potential liability”. This applies, for example, where the act complained of would probably result in a “multiplicity of actions” which could be “socially calamitous”.
Where these circumstances are present, the view is held that the defendant does not have a legal duty to avoid damage.

oSTATUTORY PROVISION
The fact that a statutory provision expressly or by implication prescribes that the defendant must prevent (economic) loss. Whether such a duty exists will depend on the intention of the legislature, as determined from the Act, according to the principles of interpretation of statutes.

oMISCELLANEOUS
other factors which have also been taken into account by the courts are, inter alia, that the plaintiff is unable to protect himself from the economic loss involved; that the plaintiff can protect himself against such loss, for example by obtaining insurance cover, or, in a contractual “setting”, by contractual provisions, or by other reasonable means avoid making himself “vulnerable” to the risk of loss; the extent of the duty which would be placed on other persons who find themselves in the position of the defendant; an unacceptable additional burden that would be placed on the defendant, or that his activities would be restrained unfairly; and that the non-recognition of a legal duty will leave a serious lacuna in the law

Question 43

What are the factors are strongly indicative of a legal duty to prevent prejudice to the beneficiary

Answer 43

The existence of a valid (professional) contract between the defendant and the testator placing a duty on the defendant to act with the necessary care (professional skill) to ensure that a particular (testamentary) benefit will accrue to the beneficiary

the existence of a delictual legal duty on the defendant to refrain from wrongful conduct (such as misrepresentation) against the testator which could deprive the beneficiary of a particular benefit

Question 44

Product liability

Answer 44

♦Problematic area of Aquilian action is liability of the manufacturer for patrimonial loss (and the impairment of personality) caused by a defective product

Question 45

Wrongfulness as an element of Product liability

Answer 45

Jager gives convincing reasons why the wrongfulness of the manufacturer’s conduct lies in the VIOLATION OF LEGAL DUTY.

The manufacturer has a duty, according to the legal convictions of the community (boni mores), reasonably to prevent defective products from reaching the market, or staying in the market, and infringing the interests of consumers.

The presence of a defect in a product is accordingly a necessary prerequisite for wrongful conduct on the part of the manufacture

Question 46

meaning of “defective”

Answer 46

As a general rule, a product may be considered as being defective if it is unreasonably dangerous;

a product is unreasonably dangerous if, in the circumstances, it does not meet the expectations of the reasonable consumer concerning its safety.

*Shortcomings in the design of a product *insufficient warnings or information on products
may be regarded as defect.

Question 47

Negligence as element of product liability

Answer 47

Once wrongfulness has been established, there must also (at least) be negligence on the part of the manufacturer to found liability.

One is concerned with the reasonable foreseeability and preventability of damage.

Question 48

Difficulty of proving reasonable foresseability and preventability ito negligence as element of product liability

Answer 48

Damage arising from the abnormal use of a product will probably, as a rule, not be reasonably foreseeable.

Very difficult to prove fault on the part of the manufacturer, either because fault (intent or negligence) is simply not present in the production process or the prejudiced party cannot obtain proof of fault as the technological production process is complicated and a closed book as far as he is concerned.

Anglo-American law, by a specific application of the doctrine of res ipsa loquitur (the facts speak for themselves).

Question 49

Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002(SCA) case of wrongfulness as element of product liability

Answer 49

FACTS
the defendant company (C) was the manufacturer of a herbicide.
The plaintiff bought the herbicide from a dealer, used it according to C’s directions in his pear orchards and suffered damage in respect of his pear crop.
He instituted action against C on the basis that the latter’s defective product caused the damage.

COURTS DECISION
The court did not find it difficult to judge C’s conduct as wrongful.
In respect of negligence, the court found that the fact that the damage to the pear trees was probably attributable to use of the herbicide, in conjunction with C’s failure to include a warning that the herbicide was dangerous to pear trees in the instructions for use, was indicative of prima facie negligence on C’s part.
C then had an onus of rebuttal to convince the court that it had acted like a reasonable manufacturer in its position by performing the necessary tests to determine whether the product was safe for pear trees. C failed to do this, and hence was found to have been negligent.

At a closer look, it is apparent that this was an application of the maxim res ipsa loquitur, which is frequently and justifiably so, used in cases of manufacturer’s liability because it is often extremely difficult to prove fault on part of manufacturer.

Where the consumer does not acquire the product directly form the manufacturer, and the manufacturer is thus a third party, such liability amounts to what is sometimes termed ‘product liability’. A contractual nexus between the manufacturer and the consumer isn’t required

Question 50

Gibb and Son (Pty) Ltd v Taylor and Mitchell Timber Supply Co (Pty) Ltd 1975. (PRODUCT LIABILITY)

Answer 50

A building contractor (the plaintiff) ordered scaffolding from a dealer (the defendant). On account of a defective scaffold plank an employee of the subcontractor sustained serious injuries.
The plaintiff paid damages to the employee. He (the plaintiff) alleged that the defendant was 90% contributorily negligent to the employee’s damage and accordingly claimed a contribution ex delicto from the defendant.

The court concluded that a dealer may be delictually liable for defects in the product which cause damage.

In casu the question of whether there was liability on the part of the dealer must be answered by deciding whether the dealer had a duty to take reasonable care in detecting defects (reasonable foreseeability and preventability of damage).
Such a DUTY TO INSPECT does not, according to the court, arise in the case where a reasonable dealer in the position of the defendant, expects a search for defects by the client and the inspection will, in all probability, bring a defect to light.
In the present case there was no duty to inspect simply because a reasonable timber merchant would have expected a building contractor to inspect

Question 51

Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd 1972

Answer 51

the court was also not opposed to such an approach. Myburgh J stated (190): “I need not deal with the acts of negligence alleged, it being assumed that these can be proved at the trial because of res ipsa loquitur or otherwise.” A hired a new Datsun motor car from M. The latter had obtained the motor car from a garage for the express purpose of leasing it to A. In the contract of lease A undertook all responsibility for repairs to the motor car. He later discovered certain defects in the motor car which resulted in expensive repairs and long periods of loss of use. A claimed the subsequent patrimonial loss from Datsun Motors with the actio legis Aquiliae. Myburgh J dismissed the claim. According to him there was no negligence on the part of the manufacturer. The manufacturer had no duty of care towards A because the manufacturer could not reasonably foresee that A would renounce his common law remedy to recover from his predecessor in law. Besides, the Aquilian action had not yet been extended to such a degree that pure patrimonial loss, without prior infringement of person or property, could be recovered with it (today, such liability is possible). In the particular case such extension would constitute an improper encroachment on the field of the law of contract.

Question 52

When should the res ipsa loquitur interference of negligence take place

Answer 52

It should at least be made where a consumer proves that he was prejudiced by a defective (unreasonably dangerous) product and that the product was in this state when the manufacturer abandoned his control over it.

T

Question 53

The willingness of the SCA to investigate interference of the res ipsa loquitur was tested in Wagener and Cuttings v Pharmacare Ltd.

Answer 53

After thorough consideration, the court was not prepared to recognise strict product liability in principle and thus to become involved “in the function of trying to ‘legislate’ judicially in this complex field (whether in this case or other cases)”.

The plaintiff’s remedy was therefore limited to the Aquilian action, which adequately protects the physical integrity according to the court, with the possibility of gradual development of the approach to the res ipsa loquitur maxim and a reversal of the onus of proof.
If strict liability had to be introduced, it was a task of the legislature.

Question 54

intervention of legislature by introducing CPA as strict liability administrator for product liability

Answer 54

The legislature has now intervened and introduced strict liability for damage caused by a defective product in section 61(1) of the Consumer Protection Act 68 of 2008 (“CPA”).

Common law position, as set out above, also remains in force in terms of section 2(10) of the CPA.

This The legislature has now intervened and introduced strict liability for damage caused by a defective product in section 61(1) of the Consumer Protection Act 68 of 2008 (“CPA”). Common law position, as set out above, also remains in force in terms of section 2(10) of the CPA. This