Introduction
2.1 Chapter 1 of the Act is headed 'Contributory negligence' and reads as follows:
1. Apportionment of liability in case of contributory negligence.- (1) (a) Where any person suffers damage which is caused partly by his own fault and partly by the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant but the damages recoverable in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the damage.
(b) Damage shall for the purpose of paragraph (a) be regarded as having been caused by a person's fault notwithstanding the fact that another person had an opportunity of avoiding the consequences thereof and negligently failed to do so.
(2) Where in any case to which the provisions of sub-section (1) apply, one of the persons at fault avoids liability to any claimant by pleading and proving that the time within which proceedings should have been instituted or notice should have been given in connection with such proceedings in terms of any law, has been exceeded, such person shall not by virtue of the provisions of the said sub-section, be entitled to recover damages from that claimant.
(3) For the purposes of this section "fault" includes any act or omission which would, but for the provisions of this section, have given rise to the defence of contributory negligence.
2.2 The single-sentence prescription of section 1(1)(a) spawned difficulties of interpretation wholly disportionate to its length(1). Fortunately most of them have now been resolved by the courts.
2.3 The application of section 1(1)(a) is expressly confined to damage caused partly by the plaintiff's 'own fault'. Another person's fault will not do, unless the law imputes it to the plaintiff as with master and servant. Thus the dependant's damages cannot be reduced on account of the contributory negligence of his or her deceased breadwinner, for that is not his or her 'own fault', nor is it imputable to him or her.
2.4 This has important practical implications as there are exceptional situations in which our law permits one person to sue for pure economic loss sustained in consequence of the physical injury or death of another, provided a legal duty of support existed between them. In all these situations, the requirement of 'own fault' means that the contributory negligence of the physically injured or deceased person is no ground for reducing the damages to which his or her relatives, the plaintiff, is entitled, for the latter's damage was not caused partly by his or her own fault.
2.5 Thus a father's claim for medical expenses incurred on behalf of his dependant child, being the father's own personal claim, cannot be reduced on account of the child's contributory negligence(2). Likewise, a husband's claim for medical expenses incurred on behalf of his dependant wife cannot be reduced on account of the wife's contributory negligence(3). Finally, and perhaps most important of all, a dependant's claim for loss of support, being the dependant's own action and not one derived from the deceased's estate, cannot be reduced on account of the deceased breadwinner's contributory negligence.(4)
2.6 The application of this principle (in its above three manifestations) left defendants in a parlous position.(5) Unable to require a reduction of the plaintiff's damages under section 1 of the Act, they could obtain legal recompense for the injured or deceased person's contributory negligence only if that person were a joint wrongdoer liable for a contribution under section 2 of the Act.
2.7 Legislative intervention was imperative, especially after the judgment in Van Zyl v Gracie.(6) The alternatives were basic: (a) to create 'skuldidentifikasie'(7) between the innocent plaintiff and his or her contributory negligent relative by a suitable amendment to section 1 of the Act, so that the plaintiff's damages were reduced directly as though caused partly by 'his own fault'; or (b) to constitute the contributorily negligent relative a wrongdoer(8) by a suitable amendment to section 2 of the Act, leaving the innocent plaintiff's right to full compensation intact, and relegating the defendant to a right of recourse against the culpable relative (or his or her estate). While either alternative may yield the same economic result in many cases, it is clear that (a) favours the defendant where the fruits or recourse are uncertain.(9)
2.8 The legislator opted for the joint wrongdoer solution in all the situations under discussion.(10) Leaving section 1 of the Act untouched and the innocent plaintiff's right to full damages intact, the Apportionment of Damages Amendment Act 58 of 1971 added two new subsections(11) to section 2. These thorny issues are now all dealt with by treating the negligent relative as a joint wrongdoer under section 2 of the Act and they need concern us no further here.(12)
2.9 Mr RI Lister, an attorney from Pietermaritzburg, experiences problems with apportionment in cases involving motor vehicle accidents. As the driver is often a person of no financial substance, Mr Lister suggests that the law be changed so that there is automatically a presumption that the driver acted in the course and scope of his or her employment with the legal owner of the motor vehicle. Alternatively, he suggests to allow apportionment to be pleaded as if the driver were a servant. Mr Lister's justification is simple: "If one allows another person to drive one's vehicle, you, as owner, should be answerable, jointly and severally, for his unlawful actions."
2.10 A final aspect of the 'own fault' requirement that merits attention is the significance for a cessionary. A plaintiff who sues a cessionary of an innocent person's claim is entitled to full damages even though the plaintiff personally was guilty of contributory negligence.(13) This principle has been exploited by hire-purchasers of motor vehicles damaged partly by their own fault. Though a hire-purchaser has his or her own action for damage to the merx, a negligent hire-purchaser has sometimes preferred to sue as cessionary of the owner's concurrent action, thereby avoiding the reduction of damages that would have befallen his or her own action.(14)
2.11 The emphasis thus far has been on 'own fault'. What of the concepts of 'fault' itself, and the degree in which the claimant was at fault in relation to the damage', the criteria by which the plaintiff's damages must be reduced?
2.12 The use of the word 'fault' gave rise to several questions of interpretation(15) as a partial definition in section 1(3) proved unhelpful. Since 'fault' in the widest sense embraces both negligence and intention,(16) it might seem, on the literal wording of section 1(1)(a), that even a defendant who had harmed the plaintiff intentionally could raise the plaintiff's contributory negligence as a ground for reducing his or her damages. But at common law contributory negligence was no defence to intentional wrongdoing,(17) and it is generally accepted that the legislature did not intend to alter this principle.
2.13 Then came South British Insurance Co Ltd v Smit.(18) Eschewing 'blameworthiness' with its uncertain meaning and moral overtones, the court held that 'fault' means negligence and 'degree of fault' means degree of negligence.(19) Causation is relevant only at the initial stage of identifying what acts or omissions caused the damage in issue: It plays no part in the apportionment process, which depends solely upon a comparison of the respective degrees of negligence of the parties.(20)
2.14 The Commission supports this interpretation of the word 'fault'. Taken to its logical conclusion, if 'fault' in section 1 of the Act means negligence and if this meaning indeed reflects the intention of the legislature (which we believe it does), then the Act should simply say it. We therefore recommend that all references to 'fault' in section 1 be removed and be substituted by 'negligent conduct' or words to that effect. In the light of this recommendation, the partial definition of 'fault' in section 1(3) becomes redundant and it can be repealed in its entirety. Alternatively, 'negligent conduct' can be defined as any act or omission which would, but for the provisions of this section, have given rise to the defence of contributory negligence.
2.15 In New Zealand it is not certain whether contributory negligence may be a defence to an intentional tort.(21) In Hoeberger v Koppens(22) Moller J considered the defence against a claim of intentional assault. Distinguishing the English case of Lane v Holloway,(23) the New Zealand Supreme Court found that although the defendant had intended to assault the plaintiff, the plaintiff had been partly to blame for what had happened: he could easily have walked away from the situation and had provoked and insulted the defendant. The Court applied the Contributory Negligence Act, 1947 to reduce the plaintiff's damages by 15%. However, a contrary view was taken in Dellabarca v Northern Storemen and Packers Union(24) where Smellie J concluded that contributory negligence could not be raised as a defence to an intentional tort since it would not have been so available before the passing of the Contributory Negligence Act, 1947.
2.16 A different question is whether section 1(1)(a) allows a defence of contributory intention - i.e. whether the defendant can reduce his or her liability for intentional wrongdoing by proving fault in the form of intention on the plaintiff's part. Van der Merwe and Olivier(25) answer in the affirmative:
Daar bestaan derhalwe geen rede om aan te neem nie dat "skuld" in die artikel nie ook sy gemeenregtelike betekenis dra wat beide opset en medewerkende opset sowel as nalatigheid en medewerkende nalatigheid omvat nie. Trouens, waar artikel 2 van die Wet die woord "skuld" gebruik, kan beswaarlik ontken word dat persone wat opsetlik aan 'n eiser skade berokken het, as mededaders in terme van dié artikel aan te merk is. As "skuld" in artikel 2 die betekenis van ook opset omvat, steun dit die beskouing dat "skuld" in artikel 1 ook in die betekenis van opset of medewerkende opset, na gelang van die geval, gebesig word. Om met proporsionele verdeling te werk waar die eiser medewerkend opsetlik en die verweerder opsetlik opgetree het, druis nie teen die regsgevoel in nie.
2.17 Though the Appellate Division has never had to decide this question, it has twice expressed grave doubts as to the availability of such a plea. Nevertheless, certain academics regard consent to the unreasonable infliction of harm as giving rise to a defence of contributory intention. If this latter view were to prevail it would follow that the winner of the classic duel resulting in death would not be held liable to the dependants of the loser for any part of their loss of support even where those dependants had urged the duellists to refrain from their unlawful conduct.
2.18 In the light of our recommendation on the meaning of 'fault' above, it follows that the Commission finds that section 1(1)(a) does not allow a defence of contributory intention.
2.19 For present purposes the only question that need concern us is whether the negligent defendant who has breached a statutory duty can claim apportionment in terms of the Act.
2.20 In terms of the current South African approach, breach of a statutory duty is regarded as being per se unlawful. According to McKerron, to entitle a person to sue for breach of a statutory duty, it must be shown that (a) the statute was intended to give a right of action; (b) that the claimant was one of the persons for whose benefit the duty was imposed; (c) the damage was of the kind contemplated by the statute; (d) the defendant's conduct constituted a breach of the duty; and (e) the breach caused or materially contributed to the damage.
2.21 In language which is more consistent with the contemporary approach to the distinction between unlawfulness and fault, once McKerron's categories (a), (b), and (c) are satisfied and it is found that the statute in question establishes a legal duty which the defendant has breached, the only questions remaining is whether the defendant has been negligent and whether his or her negligence has caused the economic loss of the plaintiff.
2.22 Where the damage results from the breach of an absolute duty imposed by statute, it might be argued that the breach would ground a defence of contributory negligence at common law, and would therefore constitute fault on the part of the defendant in terms of section 1(3). McKerron submits that there is no substance in this argument as breach of a statutory duty is not per se contributory negligence as 'at most it is evidence of contributory negligence.' The GCB, on the other hand, submits that the Act should apply to cases of breach of a statutory duty.
2.23 The Commission invites comment on these two opposing viewpoints. What seems clear is that the whole basis of the Act is the apportionment of fault. If fault is a requirement in an action for damages for breach of a statutory duty, that fault can be apportioned and the Act should apply. However, it is equally clear that the Act does not cover no-fault liability on the part of the defendant.
Similar issues are raised by torts of strict liability in New Zealand. In such a case, the defendant's intentions or reasonable care are irrelevant and, once it is shown that the defendant's act caused loss or damage, imposition of liability is automatic. This also seems to be the case with breach of a fiduciary duty. In Day v Mead Mead (a solicitor) had persuaded his client Day to invest in a company in which Mead had an interest. The company failed and Day sued Mead to recover the money invested. The New Zealand Court of Appeal found that there had been a breach of fiduciary duty by Mead and that Day was entitled to equitable damages. However, the Court also found that Day had contributed to his own loss by making a second investment after becoming aware of the true state of the enterprise. To take account of this, damages in relation to the second investment were reduced by 25%. It would seem likely that where equitable damages are to be thus reduced, the very high standard of behaviour which a fiduciary is required to exhibit may require a clearer case of plaintiff fault to be made out by the fiduciary before the court will allow the reduction.
2.24 In all Australian jurisdictions, except New South Wales, fault includes breach of a statutory duty. In New South Wales contributory negligence is not available as a defence to an action for personal injuries 'founded on a breach of statutory duty imposed on the defendant for the benefit of a class of persons of which the person so injured was a member at the time the injury was sustained'.
2.25 McKerron convincingly argues that the Act does not apply to damage caused by pauperies. Since liability for pauperies is based not on fault but on ownership, it is difficult to see how the damage could properly be regarded as having been caused by the fault of the defendant. For the same reason, McKerron submits that 'the Act can have no application to damage caused by the breach of a strict or absolute duty in circumstances excluding negligence, for example, damage resulting from nuisance, interference with the natural flow of water, or the breach of an absolute duty imposed by statute'.
2.26 The Commission supports this contention of McKerron.
Non-delictual causes of action
2.27 In its submission, the GCB argues that the Act should be extended to cover cases of strict liability and intentional acts or omissions (whether constituting a crime or not). It is further submitted that in a relatively sophisticated commercial environment, such as that in South Africa, it is desirable that the provisions of the Act also be made applicable to contractual damages. If made applicable to contractual damages, the provisions of the Act should also in their view apply to cases of breach of trust and breach of a fiduciary duty. In support of this contention, the Bar Council refers to the position in England and Wales, where contributory negligence can be taken into consideration in all cases, whatever the legal basis of liability. Reference is also made of the Law Reform Commission of Hong Kong and the Law Commission of New Zealand, where a similar approach is recommended. As is stated by the Law Reform Commission of Hong Kong, the restriction of the right to a contribution to contributory wrongdoers alone cannot be justified on any policy grounds, and is merely an 'accident of legal history'.
2.28 The absence of any express reference to delictual liability in section 1 of the Act paved the way for a contention that its apportionment provisions could be applied also to a claim for damages for breach of contract. It was argued that if the plaintiff's loss arising from a breach of contract had been 'caused partly by his own fault and partly by the fault of' the defendant, his or her damages had to be reduced in terms of section 1(1)(a). This argument was rejected in Barclays Bank v Straw and OK Bazaars (1929) Ltd v Stern and Ekermans. However, these decisions were reached before the Appellate Division in Lillicrap, Wassenaar and partners v Pilkington Brothers (SA) (Pty) Ltd had authoritatively accepted that, in limited circumstances, liability for negligent breach of contract and delict may overlap. After this decision, is it not possible to argue that, in these limited circumstances, the court may apportion fault between the defendant (who has negligently breached a contract which causes the plaintiff physical injury or damage to property) and the plaintiff (who has been contributory negligent)?
2.29 Inasmuch as the question has not yet come before the Appellate Division, it cannot be regarded as settled. The Commission is therefore convinced that legal certainty in this regard necessitates amendment of the Act. Two possible solutions suggest themselves. The first is to state unequivocally that claims for contractual damages fall within the ambit of the Act. This is the option the Commission prefers. The second is to spell out that claims for contractual damages are excluded from the ambit of the Act.
2.30 The GCB submits that it is desirable that the provisions of the Act also be made applicable to contractual damages (excluding loss or damage arising wholly or partly from a failure to pay a debt). It further submits that the doctrine of mitigation of damages does not go far enough to serve the important need (as a matter of legal policy) for reduction in contractual damages where such a reduction is appropriate.
2.31 For McKerron, however, it is clear from the reference to the 'last opportunity' rule in section 1(1)(b), and from Chapter 1 of the Act read as a whole, that the Chapter was intended to apply only to liability in delict. It follows then that the provisions of section 1(1)(b) have no application to actions for breach of contract, even where the breach was due to the defendant's negligence. The Natal Bar Council, on the strength of particularly the OK Bazaars-decision, shares this view.
2.32 Whether a claim for apportionment has to be specifically pleaded has long been controversial. In AA Mutual Insurance Association Ltd v Nomeka it was held that the defendant's plea denying all negligence and averring that the collision had been caused solely by the plaintiff's negligence sufficiently placed the negligence of the plaintiff in issue to entitle the court to apportion the damages, although there was no alternative plea claiming apportionment in the event of a finding of contributory negligence.
2.33 The question as to what order regarding costs should be made where damages are apportioned in terms of the Act gives rise to several problems. Where the court is concerned only with a claim in convention - there is no counterclaim to complicate the issue - the position is reasonably clear. In the absence of an adequate tender of payment into court, an award of a substantial amount of damages will carry with it the costs of the action, irrespective of the proportion of fault attributed to the plaintiff or the amount by which his or her total damages have been reduced, having regard to such fault. Where there is both a claim in convention and a claim in reconvention, or counterclaim, and an apportionment of fault results in the damages upon both claim and counterclaim being proportionally reduced, no tender of payment into court having been made by either party, the position is by no means clear. Different courts have adopted different measures.
2.34 Gauntlett offers the following tentative view as to the proper basis for dealing with this type of situation:
In the first place, it should be observed that because of individual differences in the facts of cases and because the award of costs is something very much within the court's discretion, no hard-and-fast rule can, or should, be laid down. In the second place, the fundamental principle is that legal costs should normally be borne by the party responsible for such costs having been incurred. It is submitted that such responsibility flows primarily not from the conduct of the parties in and during the transaction which gives rise to the litigation, but to their subsequent conduct in and in regard to the litigation itself. ... Accordingly, the respective degrees of fault of the parties in regard to the accident causing the injuries should not have any direct bearing upon the question of costs.
2.35 The Commission supports the above point of view.
2.36 Important as these aspects of the meaning of 'fault' were, they were peripheral to the cardinal questions raised by section 1 of the Act. These questions were formulated by Boberg as follows:
(a) What is the connotation of 'fault' in relation to legal negligence and moral blameworthiness? (b) Since s 1(1)(b) abolished the last opportunity rule (a test of causation) without offering anything in its place, what test of causation should be applied to determine whether the plaintiff's damage was 'caused partly by his own fault and partly by the fault of' the defendant? (c) How should the court 'reduce' the claimant's damages 'having regard to the degree in which the claimant was at fault in relation to the damage', and what role should causation play in this process?
2.37 After much academic debate and some judicial uncertainty, definitive and authoritative answers to these questions were given by the Appellate Division in South British Insurance Co Ltd v Smit and Jones NO v Santam Bpk.
2.38 In South British Insurance Co Ltd v Smit, the Appellate Division approved an approach based on comparative culpability in these terms:
In directing the court to have "regard to the degree in which the claimant was at fault in relation to the damage" ("met inagneming van die mate van die eiser se skuld met betrekking tot die skade") the legislature, in my opinion, requires the court to assess the degree of the claimant's negligence in relation to the damage which has been caused by the combination of that negligence and the negligence of the defendant. That is not to say that the court is to embark upon the impossible task of determining degrees of causation. What the court is required to do is to determine, having regard to the circumstances of the particular case, the respective degrees of negligence of the parties. In assessing "the degree in which the claimant was at fault in relation to the damage", the court must determine in how far the claimant's acts or omissions, causally linked with the damage in issue, deviated from the norm of the bonus paterfamilias. In thus assessing the position, the court will, as explained above, determine the respective degrees of negligence, as reflected by the acts and omissions of the parties, which have together combined to bring about the damage in issue.
2.39 Subsequently the Appellate Division emphasised that it is the respective degrees of negligence of the parties which has to be determined, not only the degree of any negligence on the part of the claimant:
It is on the basis of comparison between the respective degrees of negligence of the two parties (or several parties if there be more than one claimant or defendant) that the court can determine in how far the fault or negligence of each combined with the other to bring about the damage in issue.
2.40 The extent to which a party departs from the standard of reasonableness in his or her conduct is usually expressed as a percentage. Thus in Jones NO v Santam Bpk Williamson JA used the example of a 60% deviation from the norm by a plaintiff and a 20% deviation by the defendant would mean that liability should be assessed upon the basis of 3 to 1, or 75% to 25%. The result would be a reduction of the plaintiff's damages by 75%.
2.41 After Jones, courts continued to go their own way - sometimes adopting the two-stage method of apportionment described by Williamson JA and sometimes simply comparing the parties' negligence in a single stage 'rough and ready' way.
2.42 Perhaps the most serious defect in the Act is that whereas the provisions of section 2 apply to all actions of delict, the provisions of section 1 are confined to actions based on fault. McKerron argues that this defect could be easily remedied by simply restoring the definition of "fault" contained in the 1952 and 1955 Bills. "Fault" was there defined, in terms similar to those of the English Law Reform (Contributory Negligence) Act, as including breach of a statutory duty or other act or omission which gives rise to delictual liability.
2.43 The wording of section 1(1)(a) "damage ... caused ... by ... fault" is jurisprudentially inelegant. As Rumpff CJ pointed out in Union National South British Insurance Co Ltd v Vitoria, it is implicit in the subsection that the word "fault" relates to conduct which caused the damage, for fault, as a moral or legal attribute of conduct, cannot itself cause anything.
The Commission's recommendation
2.44 Although it is unfortunate that section 1 of the Act "beslis nie 'n toonbeeld van suiwerheid van denke en helderheid van formulering (is) nie", it must be emphasised that our courts, and especially the Appellate Division, have over the years given concrete content to this section. The Commission should therefore be extremely careful in changing a section that has been the subject of several court decisions. With this in mind, we recommend the following:
| Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act. |
1. Apportionment of liability in case of contributory negligence.- (1) (a) Where any person suffers damage which is caused partly by his or her own negligent conduct [fault] and partly by the negligent conduct [fault] of any other person, a claim in respect of that damage shall not be defeated by reason of the contributory negligence [fault] of the claimant but the damages recoverable in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the degree of contributory negligence of [in which] the claimant [was at fault] in relation to the damage.
(b) Damage shall for the purpose of paragraph (a) be regarded as having been caused by a person's negligent conduct [fault] notwithstanding the fact that another person had an opportunity of avoiding the consequences thereof and negligently failed to do so.
(c) Damage shall for the purpose of paragraph (a) include damage caused by a breach of a term of a contract.
(2) Where in any case to which the provisions of [sub-]section 1(1) apply, one of the persons who acted negligently [at fault] avoids liability to any claimant by pleading and proving that the time within which proceedings should have been instituted or notice should have been given in connection with such proceedings in terms of any law, has been exceeded, such person shall not by virtue of the provisions of [the said sub-]section 1(1), be entitled to recover damages from that claimant.
(3) For the purposes of this section 'negligent conduct' ["fault"] includes any act or omission which would, but for the provisions of this section, have given rise to the defence of contributory negligence.
Alternatively, it is proposed that section 1(3) be repealed.
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Footnotes:
2 Nieuwenhuizen NO v Union & National Insurance Co Ltd 1962 1 SA 760 (W); Saitowitz v Provincial Insurance Co Ltd 1962 3 SA 443 (W); Du Preez v AA Mutual Insurance Association Ltd 1981 3 SA 795 (E).
3 Whether an injured wife could be a joint wrongdoer in her husband's action for medical expenses depended on whether the spouses were married in or out of community of property. A marriage out of community of property presented no obstacle, but a marriage in community precluded either spouse from being a joint wrongdoer in an action by the other: Kleinhans v African Guarantee & Indemnity Co Ltd 1959 2 SA 619 (E); Tomlin v London & Lancashire Insurance Co Ltd 1962 2 SA 30 (D).
4 Kleinhans v African Guarantee & Indemnity Co Ltd 1959 2 SA 619 (E). In casu the accident occurred before the amending Act of 1971 came into force.
6 1964 2 SA 434 (T). See also Boberg Law of Delict 666; McKerron Law of Delict 67 footnote 59, 298 footnote 13; Van der Merwe and Olivier Onregmatige Daad 357 - 8.
7 'Skuldidentifikasie' was the solution favoured by Van der Merwe 1964 Acta Juridica 82 footnote 93. See also Van der Merwe and Olivier Onregmatige Daad (first edition) 204 - 8, (second edition) 305 - 15; Boberg Law of Delict 666.
8 The solution favoured by McKerron Law of Delict 306 footnote 53.
9 For a full summary of these submissions, see Boberg 1971 SALJ 423.
11 Sections 2(1A) and 2(1B). For a discussion see paragraphs 3.6 and 3.13 - 3.16 below.
13 Windrum v Neunborn 1968 4 SA 286 (T) at 288. See also Van der Merwe and Olivier Onregmatige Daad 168.
14 Lean v Van der Mescht 1972 2 SA 100 (O); Stolp v Kruger 1976 2 SA 477 (T). Van der Merwe 1972 THRHR 179 at 183-4 pointed out that this was not really unjust, because the defendant had a right of recourse against the hire-purchaser as a joint wrongdoer in terms of section 2 of the Act.
15 For a summary of views on the proper basis of apportionment, see McKerron 1962 SALJ 443.
16 Visser and Potgieter Skadevergoedingsreg 242.
17 As confirmed in Minister van Wet en Orde v Ntsane 1993 1 SA 560 (A). See also 1993 De Rebus 293 - 294.
18 1962 3 SA 826 (A). See also Boberg Law of Delict 668; McKerron 1962 SALJ 443 .
19 Per Ogilvie Thompson JA at 835D - G.
20 Unfortunately the Court thought that determining the degree of the plaintiff's fault would also automatically determine the degree of the defendant's fault. Clarification came with Jones NO v Santam Bpk 1965 2 SA 542 (A). It was not true, said Williamson JA (at 555B - C), that a determination of the degree of the plaintiff's fault also automatically determined the degree of the defendant's fault. The latter had to be assessed separately, and the two degrees of fault had then to be compared to determine the extent to which the plaintiff's damages should be reduced. See also Boberg Law of Delict 669 - 670; 1965 Annual Survey 180 - 4.
21 An intentional tort is one in which the wrongdoer either desires to bring about a result which is an injury to another, or believes that the result is substantially certain to follow from what he or she does: Fleming Law of Torts 70.
24 [1989] 2 NZLR 737 at 755 - 757.
26 See Netherlands Insurance Co Ltd v Van der Vyver 1968 1 SA 412 (A) at 422; Mabaso v Felix 1981 3 SA 865 (A) at 876-7.
27 McKerron Law of Delict 297; Van der Walt Delict par 45.
28 Wapnick v Durban City Garage 1984 2 SA 414 (D) at 418H.
29 Burchell Principles of Delict 46.
30 McKerron Law of Delict 276. These requirements were applied by Jansen JA in Da Silva v Coutinho 1971 3 SA 123 (A).
31 Burchell Principles of Delict 46.
33 Burchell Principles of Delict 111.
34 Some commentators, such as Fleming Law of Torts 318, suggest that in such cases policy should favour reduction of the plaintiff's damages where the plaintiff is contributory negligent in failing to discover or avoid the damage.
36 New Zealand Law Commission Preliminary Paper 18.
37 Trindade and Cane Law of Torts 428.
38Section 2 of the Statutory Duties (Contributory Negligence) Act, 1945.
40 The Apportionment of Damages Act 13.
41 Report on Contribution between Wrongdoers.
43 Report on Contribution between Wrongdoers 22.
44 Boberg Law of Delict 713; McKerron Law of Delict 298.
45 1965 2 SA 93 (O) at 98 - 9. This decision was criticised by Jean Davids 1965 SALJ 289, 1966 SALJ 226 and Boberg 1965 Annual Survey 179 - 180.
46 1976 2 SA 521 (C). Van der Merwe and Olivier Onregmatige Daad 168 criticised this decision. For them there is "geen prinsipiële verskil ... tussen 'n eis om skadevergoeding op grond van kontrakbreuk en op grond van onregmatige daad nie". See also Dlamini 1985 De Jure 346 for a discussion of the appropriate measure of damages for fraud inducing a contract.
48 Where the loss suffered by the plaintiff as a result of this conduct consists in physical injury or damage to property, as opposed to pure economic loss. See also Burchell Principles of Delict 112.
49 This is also the international trend. See Basildon DC v Lesser [1985] QB 839; Forsikrings v Butcher [1986] 2 All ER 488; Rowe v Turner Hopkins [1980] 2 NZLR 550.
50 Lötz 1996 TSAR 170 at 173 answers this question in the affirmative.
51 The duty to mitigate damage (more precisely, the penalty for not mitigating damages) applies to both delictual and contractual claims: Boberg Law of Delict 493. See, in general, Neethling, Potgieter and Visser Deliktereg 226 - 7; McKerron Law of Delict 139; Van der Merwe and Olivier Onregmatige Daad 188.
53 The memorandum was prepared by JE Hewitt SC on behalf of the Natal Bar Council.
54 See also the discussion on section 4(1)(b) of the Act below at paragraphs 4.3 and 4.4.
57 See also Bata Shoe Co Ltd (SA) v Moss 1977 4 SA 16 (W).
58 Gauntlett Quantum of Damages (Volume I) 79 - 80; Boberg Law of Delict 672 - 673.
59 Thus it has been held that in such a case the plaintiff should pay the defendant's costs and the defendant the plaintiff's costs: Ihlenfeldt v Rieseberg 1960 2 SA 455 (T) at 456 - 7. In cases where equal fault has been attributed to plaintiff and defendant that there should be no order as to costs has earned judicial approval: Glatt v Evans 1962 3 SA 959 (T) at 960 - 1. See also Stolp v Du Plessis 1960 2 SA 661 (T) where the plaintiff was awarded one-third of her cost as against the defendant and the defendant two-thirds of his costs against the plaintiff.
60 Quantum of Damages (Volume I) 80.
65 1962 3 SA 826 (A) at 836B - E.
66 Jones NO v Santam Bpk 1965 2 SA 542 (A) at 555C - D. In this respect the Court did not adopt the formulation of Ogilvie Thompson JA in Smit at 835H.
67 Compare Kotzé 1956 THRHR 186 at 187; Millner 1956 Annual Survey 188 at 191: "There is no unit of blame; no formula exists to quantify it or to measure deviation from the legal standard of care ... The matter can only lie in the discretion of the tribunal which will have regard for the circumstances of the particular case." See also Minister van Vervoer v Bekker 1975 3 SA 128 (O) at 135A - D.
69 See Boberg Law of Delict 669 - 670 for a list of authorities.
70 McKerron The Apportionment of Damages Act 10
71 The Apportionment of Damages Act 10.
72 Union Gazette Extraordinary, 11 January 1952 and 30 December 1955.
73 "Fault" is defined in section 4 to mean negligence, breach of a statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.
74 Boberg Law of Delict 655; Swanepoel 1959 THRHR 262 at 264; Van der Merwe and Olivier Onregmatige Daad 161.