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Tutorial 5a) Parties to the claim and their capacities b) Harm suffered by the plaintiff and the action available c) Type of conduct by the defendant d) Is there a causal link? e) Whether the defendant is accountable and acted with intention f) Conclusion g) Is the defendant negligent? h) Is the def...

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Tutorial 5 a) b) c) d) e) f) g) h) i)

Parties to the claim and their capacities Harm suffered by the plaintiff and the action available Type of conduct by the defendant Is there a causal link? Whether the defendant is accountable and acted with intention Conclusion Is the defendant negligent? Is the defendant’s conduct wrongful? Prospects of the plaintiff’s success

Answers a) Beth is the plaintiff acting in her personal capacity. Kwane is the defendant acting in his personal capacity. b) Patrimonial loss has been suffered in respect of medical expenses, loss of earning capacity, loss of income. Beth will institute the actio legis Aquiliae. She also suffered non-patrimonial loss in the form of pain and suffering and mental anguish, the appropriate action for this is the Germanic action. c) Conduct has 3 elements: by human conduct, voluntary and a commission or omission. In this case the conduct is the human requirement is satisfied. The conduct is in the form of a commission. The requirement of voluntariness may be problematic as Kwane may raise the defence of automatism. Automatism is a defence in which the defendant alleges that they acted involuntarily or mechanically and did not have control over their muscular movements. However, the defence will fail in light of negligent prior conduct. Negligent prior conduct is when the defendant engages in conduct that leads to the state of automatism. The element of conduct is therefore satisfied. d) Causation entails a 2 stage enquiry, factual causation and legal causation (Minister of Police v Skosana). Factual causation looks at whether there is a factual link between the defendant’s conduct and the harm suffered by the plaintiff. The preferred test is the conditio sine qua non, also known as the “but-for” test. But for the defendant’s conduct would the harm have occurred? If yes, there is no factual causation. If no, the defendant’s conduct caused the harm. We are dealing with a commission therefore we should use hypothetical elimination (International Shipping Co (Pty) Ltd v Bentley). If we eliminate Kwame’s conduct, Beth would not have suffered the harm. But for Kwame’s conduct, Beth would not have suffered the harm she did. Therefore, Kwame is the factual cause of the harm Beth suffered. Legal causation now has to be satisfied. The test of be applied is the flexible approach. This test asks whether there is a close enough relationship between the defendant’s action and the harm, to be able to impute liability on the defendant in the view of public policy considerations based on reasonableness, justice and fairness (S v Mokgethi). The flexible approach suggests that a court should not restrict the legal causation to a single test, but have the freedom to apply the

theories which is reasonable, just and fair, in the circumstances of the case. Is there sufficiently close connection between Kwame’s conduct and the harm suffered by Beth? The answer is yes, will be applying the flexible approach with relation to the reasonable foreseeability test. In terms of this test one can only be liable for the consequences which a reasonable person in their position would have reasonable foreseen. The harm suffered by Beth was reasonably foreseeable. The harm suffered by Beth is a direct consequence of Kwame’s conduct. There is therefore a sufficiently close connection between Kwame’s conduct and the harm suffered by Beth. The psychological weakness by Beth does not serve as a novus actus which breaks the chain of causation. In terms of the thin skin rule, also known as the talem qualem rule, Kwame must take his victim as he finds her and the fact that Beth has a pre-existing conduct does not allow him to escape liability. Therefore, legal causation is present. e) Accountability arises as a prerequisite to establishing the form of fault present. Accountability looks at whether the defendant is able to distinguish between right and wrong and whether they are able to act in accordance with this distinction. Looking at the facts of the case, there is nothing that suggests that Kwame lacks accountability. Therefore, accountability is to be presumed. Intention will be satisfied where Kwame directed his will and was aware of the wrongfulness of his conduct. In this case the facts does not support that Kwame directed his will at harming Beth, therefore, intention is absent. f) It is likely that Beth’s claim will not be successful, unless she can prove that Kwame acted with negligence. The element of fault is absent at this stage. g) According to Kruger v Coetzee, negligence is a three leg test. One has to prove that the harm was reasonable foreseeable, reasonable preventable and that there was a failure to take the necessary steps. This all has to be assessed according to the reasonable person standard. In Lomagundi Sheetmetal and Engineering v Basson, the test for reasonable foreseeability was established. The court identified guidelines which are to be followed: how real is the risk of the harm eventuating and if the harm does eventuate, what is the extent of the damage likely to be. In this case, the risk of harm of a motorist was highly likely because Kwame did not sleep for 48 hours. The seriousness of the harm of a motorist being injures is severe. Therefore, the harm is reasonably foreseeable, a reasonable person in Kwame’s position would have foreseen the dangers of driving when exhausted. According to the test for reasonable preventability, when assessing preventability for considerations must be weighed against each other: the degree and extent of risk created by the defendant’s conduct, the seriousness of the harm, the purpose or utility of the conduct, and the burden of taking precautionary measure (Ngubane v SA Transport Services). In this case, the degree and extent of risk created by Kwame’s conduct was high and the seriousness of the harm was extensive. The purpose of his conduct was unimportant because he just wanted to get to his girlfriend sooner. The burden of preventing the harm was slight, he could have just slept for a few hours. The harm is therefore reasonably preventable. Kwame failed to take the necessary steps, thus his conduct was negligent. h) The inquiry into wrongfulness involves a two stage process: Stage 1 – Has a legally recognised right been infringed? In this case, yes, Beth suffered bodily harm. Stage 2 – Has it occurred in an

i)

unreasonable manner? Unreasonableness is assumed due to the nature of the injury suffered by Beth. Therefore, Kwame’s conduct is wrongful. In conclusion, taking in the above information is clear to see that all the elements of a delict are present. It is therefore likely that Beth’s claim against Kwame will be successful.

Make-up tutorial I will be establishing whether there is a causal link between the conduct of Dr Candle and the harm suffered by Mrs Right. I will discuss whether Tygerberg Hospital may claim the existence of a nova actus interveniens. To establish causation, there is a two stage enquiry, factual causation and legal causation (Minister of Police v Skosana). Factual causation looks at whether there is a factual link between the defendant’s conduct and the harm suffered by the plaintiff. The preferred test is the conditio sine qua non, also known as the “but-for” test. But for the defendant’s conduct would the harm have occurred? If yes, there is no factual causation. If no, the defendant’s conduct caused the harm. We are dealing with an omission; Dr Candle failed to perform the correct operation of Mrs Right. Because it was an omission we use hypothetical addition (International Shipping Co (Pty) Ltd v Bentley). If we think in that Dr Candle did the correct operation, Mrs Right would not have fallen pregnant and she would not have suffered the harm. But for Dr Candle’s omission, Mrs Right would not have suffered the harm that she did. Therefore, Dr Candle is the factual cause for the harm Mrs Right suffered. Legal causation now has to be satisfied. The test of be applied is the flexible approach. This test asks whether there is a close enough relationship between the defendant’s action and the harm, to be able to impute liability on the defendant in the view of public policy considerations based on reasonableness, justice and fairness (S v Mokgethi). The flexible approach suggests that a court should not restrict the legal causation to a single test, but have the freedom to apply the theories which is reasonable, just and fair, in the circumstances of the case. Is there sufficiently close connection between Dr Candle’s omission and the harm suffered by Mrs Right? The answer is yes, will be applying the flexible approach with relation to the reasonable foreseeability test. In terms of this test one can only be liable for the consequences which a reasonable person in their position would have reasonable foreseen. The harm suffered by Beth was reasonably foreseeable. The harm suffered by Mrs Right is a direct consequence of Dr Candle’s omission. There is therefore a sufficiently close connection between Dr Candle’s conduct and the harm suffered by Mrs Right. Now that we have established that Dr Candle is the factual cause and the legal cause of Mrs Right’s harm, we now have to identify whether there was a novus actus interveniens. A novus actus involves an intervening act which breaks the link between X’s conduct and the harm suffered. A novus actus is usually something unusual or abnormal. The breaking of the link of causation is important; it speaks to the issue of intervening. It means that something has happened between what X did and the harm suffered. This intervening act says that X cannot be held liable because something abnormal intervened and broke the link between X and the harm. The Tygerberg Hospital may claim that the complications during Mrs Right’s pregnancy may be a novus actus, as she suffered harm months later from when the operation by Dr Candle was performed. Mrs Right would not have suffered the harm if she did not develop amniotic fluid embolism. However, she would not at all be pregnant if Dr Candle performed the hysterectomy correctly. The amniotic fluid embolism does not serve as a novus actus which breaks the chain of causation. In terms of the thin skin rule, also known as the talem qualem rule, the hospital must

take their victim as they find him or her, and the fact that Mrs Right had amniotic fluid embolism does not allow this to escape liability....