Flashcards
S.A. law of delict
Flashcards do conjunto (36)
- 1What law does delict fall under and why?Law of obligations. Determines the circumstances under which person is obliged to bear the damage they caused another or may incur civil liability. Creates and obligatio. Mere fact that someone caused damages insufficient.
- 2What is a Delict?It is a civil wrong which infringes on another(plaintiff) internets in which the defendants wrongful and blameworthy conduct causes monetary or non monetary harm.
- 3Whatbdoes Delict arise from?Patrimonial loss and Infringement of personality rights
- 4What are the three principle Delictual actions?The actio legis aquiliae (aquillian action) , The Actio Iniuriarm, An action for pain and suffering.
- 5What are the elements of the Aquillian action?An Act-the conduct
Wrongfulness
Fault
Causation
Damages - 6Define conduct and it's requirements?Conduct is a voluntary human act or omission. Must be an act by human being. Mus be done voluntarily (defense of automatism) , must be in the form of positive act or omission. *liability for omission generally more restricted.
- 7What is the purpose of the wrongfullness element and how do the courts use it?To determine whether the community disapproves of the harm. The courts will asess the conduct and Wilkinson find it wrongful if it Is in conflict with legal convictions of the community, if there is a duty of care owed and will look at this with reference to public policy.
- 8Discuss the elements of omission in terms of the categories used to determine the wrongfulnes element?Prior conduct
Control of a potentially dangerous animal or thing
Special or protective relationship
Public office
Statute
Contract another undertaking. - 9Discuss the element of fault.Fault seeks to determine finite fair to blame the defendant. A pre-requisite is accountability, simlar to men's rea. A person is accountable if they can differentiate between right and wrong and act on those distinctions.
- 10Discuss the two forms of fault.Intention (dolus) -must indirect their will to achieve a certain end adjust be aware of 5he wrong fullness of their conduct. Defendant is blamed for their state of mind.
Negligence(culpa) person is blamed for their lack of following standard of care wwhich they are legally obliged to follow. Reasonable person test is used. - 11Discuss the element of causation. What are stages to the causation enquiry?Factual causation. Factual link drawn between defendants conduct and harm . The conditio sine qua non theory is used..also know as the but for test.
Legal causation. To establish whether the air or omission is sclosely linked to harm or too remote For legal liability. It limits he effect of factual causation cause the defendant can't be blamed for all the consequences which flownfrom their conduct. Ensures liability is fair. Two tests are used -forseeability and direct consequences *nous actus interveniens. - 12Discuss the element of damage and the forms it may take.Damage is the detrimental impact on any patrimonial or personality interest deemed worthy off protection by the law.
there must be a damage for the court to make compensation available. Under this element, the courts assess th loss and compensate the plaintiff. Compensation may be in the form of compensation for damage or satisfaction. - 13Discuss patrimonial loss and it's forms.Loss or reduction of a positive asset in someone's patrimony. Seen as an ecocomic factual concept cause everything has some monetary value. Damnum emergens and lucrum cessans. Damage to property and pure economic loss. Direct and consequential loss. General and special damage.
- 14Discussnon non patrimonial damageThe detrimental impact of personality interests deemed worthy of protection by the law. Plaintiff may claim for damages actually suferred or are likely to suffer. Damages are calculated by determining the diff in the value of a plaintiff estate before and after the delict has taken place. The plaintiff is restored the position he would have been in if the delict had taken place.
- 15Discuss the rule used for non patrimonial damages.The plaintiff must claim for all the loss suffered in one action. The once and for all rule. Plaintiff may not claim for damages which could have been reasonably prevented. May claim the reasonable cost of steps taken to minimise damage caused by defendant -mitigation of damages.
- 16Name the forms of damage.Personal injury
Loss of life
Damage to corporeal property
Damage to incoporeal property - 17What are the elects of actio iniuriarm?Wrongness/unlawness-determined according to the reasonableness criterion. Plaintiff must prove that his subjective feelings have been violated. A person must be subjected to I'll treatment , ridicule etc -contumelia (insult). Is unlawfull only against the Bonita mores and community general sense of justice deem it so.
Interfererence of personality right-right to physical integrity, right to fame and right to dignity.
Intention-direct will to particular result and be aware of wrongfulness. - 18Discuss defamation.Specific type of actio iniuriarm. It is the intentionention infringement of a right to fama. Wrongful, intentional , publication of words or behavior concerning another person which injures his reputation.
- 19Discuss the elements of defamation.Unlawful
Intentional
Publication
Defamatory material
Plaintiff injured
*even If true info. - 20Discuss publication and wrongfulnessWithout publication people views of that person can't be lowered. Must be disclosed to atleast one otherher person aside from the plaintiff. The outsider must understand the meaning of the words/behaviours in the context of the plaintiff , spouses talking about a third party does not count. Plaintiff must prove that the defendant was responsible for the publication.
Wrongfullness Leia in infringement of personality right. The objective reasonable person test is used to determine the Bonita mores of that society-diff to reasonable peeson test in negligence enquiry - 21What is vicarious liability ?Strict liability of one personal for the delict of another. The former is vicariously liable (indirectly liable) for the damage caused by the latter. Three such relationships are employer and employee, principle and agent, motor car owner and motor car driver.
- 22Discuss vicarious liability between employer and employee.When an employee acting within the scope of his employment, commits a defendantlict, the employer is fully liable for the damage .fault is not required on the part of the employerployer so this is a form of strict liability. There must be an employer-employee relationship at the time the depict is committed , the employee must commit a depict, the employee must act within the course and scope of his employment when the depict is committed .
- 23Discuss the 3 requirements of vicarious liability between employer and employee in detail.1. There must be an employee employer relationship at time of delict:
A contract of service must exist-one person offers working capacity to another for money where the master may exercise control over the servant. Contract of mandate covers diff between independent contractor and servant.
2.the employee must commit a delict:
The employer may raise any defence which is available to the employee. They are joint wrongdoers, right of recourse is availablenonly to employer.
3.the employer must act within the course and scope of his employment when delict is committed.
Employee must act in execution or fulfilment o his duties in terms of the employment contract. He acts outside the scope if he completely disengaged himself from his employment and promotes his own objectives or interests exclusively. - 24List and discuss guidelines for determining vicarious liability in terms of course and scope.*if the servant had authority(express or implied) to do the act that caused the harm-the master is liable.=qui facit per alium facit per se (he who does an act through another, does it himself).
*if the act of the servant causing the harm was necessarily or reasonably incidental to an authorized act then the master is liable.e.g. cigg worker
*a master is liable for any act done within the servants general scope of employment where even though the wrong act is not authorised may be regarded as an improper mode but a mode nevertheless -of doing them.
*if the servants act is completely unconnected to the job he is said to be a 'frolic on his own' and the master is not liable. Ho fundamental was the deviation from the authorised route in space and time?
*a master may also be liable for a servant who acts dishonestly for his/her own benefit.
Subjective test- the servants intention
Objective test- if there is a close link between the servants acts for his own interests and the business of hiatus master. - 25Briefly discuss vicarious liability between principal and agentThe agent is authorised route perform a legal act on behalf of the principal-if agent commits depict then principal is liable. 3 elements same as employer employee
- 26Briefly discuss vicarious liability between motor car owner and driver.When the car owner allows someone who is mot his employee to drive h8s car and there's an accident, this owner's liable provided the following are met:
# the owner must request the person to drive or must supervise.
# the vehicle must be driven in the interest of the owner.
# the owner must have a right(power) of control over the way the vehicle's driven.
*may be explained with reference to the risk theory. - 27List the defences times at the wrongness elementPrivate defence
Necessity
Provocation
Consent-volenti non fit injuria
Statutory authority
Official capacity - 28Discus private defence.When the defendant dirextsbnhis actions against anothers actual or imminently threatening wrongful act in an attempt to protect his own interest or the interest of someone else. E.g. A acts in defence if he hits B to prevent B from stabbing A with a knife. B will claim compensation for injuries and A will raise private defense. Bothndefense and attack have requirements.
- 29Discuss the requirements for attack and defense in private defense.Attack:
Human act -commission or omission , animal must be in control of attacker.
Attack must be wrongful-threaten or violated a legally protected interest without justification. Must threaten life, bodily integrity/honour, property or possessions.
The attack must have commenced or be imminently threatening but must not have ceased. One must wait until attack has commenced.
DEFENCE:
Must be directed against the aggressor himself.
Defence must be necessary to protect the threatened right, if less detrimental effect is available then the defence is not a defence, if can flee with no danger then must do so.
Defence must not be more harmful than necessary to ward of thenattack, must be reasonable and proportionate to the attack. - 30Discuss necessity .This is where someone is placed in a position by superior forces (vis major)where they are unable to protect their interests without causing harm to a third party. Differs from private defence as defence is aimed at third party and not at wrongdoers.
E.g., burning house - 31Discuss provocation .When the defendant is provoked by words or actions to cause harm to thenplaintiff.m
Differs from private defence cause private defence acts to divert an attack but this is more ofnan act of revenge and takesnpoace immediately or after the conduct has terminated. Can be raised as andefemxe against violation of personality interests e.g. honour, reputation and physical integrity - 32Discuss consent.Also known as violenti non fit injuria -voluntary assumption of risk.
A person consents to the defenxefendants acts in the form of a specific harmful act or an activity including risk of harming. Racing. -cannot complain a delict has been committed
Defendant not liable cause plaintiff consented , nor is contributory negligence a defence. - 33Discuss statutory authorityA person doesn't act wrong she performs excellentrcisong statutory authority.
Statute must authorise the infringement of that particular interest.
Conduct must nth exceed the boundaries of that statute
E.g.. sec 49 of CPA - 34Discuss official capacityExecution of an official command
Public officials e.g.. police, obliged by law to perform certain acts and if damage is caused I the process they are not liable cause unlawful unleashed they exceed their power - 35List and briefly explain the defences which seek to exclude fault.Here the defendent seeks to get rid of intention to achieve a particular result.
Mistake. Bona fide mistake -must exclude intent. Must be a genuine mistake.
Jest. Defendant in good faith meant the conduct to be a joke or prank.
Provocation. Provoked to the extent that imparts or destroys ones mental capacity to have dolus or culpa.
Intoxication. Intoxication to such an extreme extent that lack capacity to be at fault.
Emotional distress. Same as intoxication except emo distress causes It.
Capacity. No mental capacity to act-insanity, youth. - 36Discuss the defences for defamationPrivilege and privileged occasion -where someone has the right , duty or interest to make specific defamatory assertions and the person it is communicated to has a right,duty or interest to learn of such assertions.
Having the consent to injure another's good name. E.g.. parliamentary privilage. Relative privilege-enjoys only provisional or conditional protection. Protection falls away when the defendant exceeds boundaries of privileged occasion.
Truth and public interest-true=substantial truth
Public interest=Boni mores
Media privilege-reasonable publication of also or unturned statement by medieval. Appliednwith caution as statements are untrue.
Political privilege-similar to media..Joe diff is must be reasonable belief that statements are true.
Fair comment- defendant must prove it to be true and in public interest. 4 requirements:must be a comment and not assertion of an independent fact.
Must be fair acc to boni mores
Facts on which the comment is based must be true.
Facts must be in public interest.