STUDY UNIT 5 Flashcards
(11 cards)
FUNDAMENTAL ASPECTS OF THE LAW OF DELICT:
- Conduct
- Causation
- Wrongfulness
- Fault
- Loss
The State Liability Act:
the State Liability Act recognises the liability of the state for delictual acts including its vicarious liability for the wrongful acts of state employees.
- CONDUCT;
conduct only qualifies as such for the purposes of the law of delict if it is voluntary.
The person concerned:
the person concerned must not act under some form of compulsion and must be able to exercise his own will from acting or refraining from the action.
People may act involuntary for a number of reasons, including:
People may act involuntary for a number of reasons, including:
1. Sleep
2. Unconsciousness
3. Epileptic fit
4. Serious intoxication
5. Mental illness
6. Blackout
- CAUSATION:
QUESTION: whether the negligent act or omission in question caused or materially contributed to see the harm giving rise to the claim.
-if it did not, then no legal liability can arise.
-if it did, then whether the negligent act or omission is linked to the harm directly for legal liability to ensue.
TEST FOR CAUSATION:
the sine qua non test
The plaintiff must:
the plaintiff must show that the harm would have not arisen but for the actions or omissions of the defendant.
- WRONGFULNESS:
The criterion of assessing wrongfulness is said to be one of objective reasonableness, requiring careful balancing, of the parties’ interests and the circumstances of the particular case.
- FAULT:
For the purposes of liability negligence arises if:
a. a diligens paterfamilias in the position of the defendant:
i. would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, and
ii. would take reasonable steps to guard against such occurrence, and
b. the defendant failed to take such steps.
- LOSS:
Can be calculated with regard to the position that the wronged party would have been but for the wrongdoing.
