Introduction
6.1 This Chapter summarises, in the form of an amendment bill, the Commission's recommendations on the Apportionment of Damages Act, 1956. For ease of reference, the words underlined indicate insertions and words in bold type in square brackets indicate omissions from the text of the Act. We keep to the existing numbering of sections as far as possible and suggest, where appropriate, alternatives.
Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act.
CHAPTER 1
CONTRIBUTORY NEGLIGENCE
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Alternatively, it is proposed that section 1(3) be repealed.
CHAPTER II
JOINT OR SEVERAL WRONGDOERS
2. Proceedings against and contributions between joint and several wrongdoers.- (1) Two or more joint wrongdoers may be sued in the same action.
(1A) A person shall for the purpose of this section be regarded as a joint wrongdoer
(a) where it is alleged in an action that this person and another or more persons are jointly or severally liable in delict to a third person (hereinafter referred to as the plaintiff) for the same damages;
(b) if such person would have been a joint wrongdoer but for the fact that he or she is married in community of property to the plaintiff;
(c) if such person would have been vicariously liable for any act or omission of another wrongdoer;
(d) notwithstanding the fact that another person had an opportunity of avoiding the consequences of his or her wrongful act and negligently failed to do so.
(1B) Subject to the provisions of the second proviso to [sub-]section 2(6)(a), if it is alleged that the plaintiff has suffered damage as a result of any injury to or the death of any person and that such injury or death was caused partly by the fault of such injured or deceased person and partly by the fault of any other person, such injured person or the estate of such deceased person, as the case may be, and such other person shall for purposes of this section be regarded as joint wrongdoers.
(2) Notice of any action may at any time before the close of pleadings in that action be given-
(a) by the plaintiff;
(b) by any joint wrongdoer who is sued in that action
to any joint wrongdoer who is not sued in that action, and such joint wrongdoer may thereupon intervene as a defendant in that action.
(3) The court may on the application of the plaintiff or any joint wrongdoer sued in any action order that separate trials be held, or make such other order in this regard as it may consider just and expedient.
(4) (a) If a joint wrongdoer is not sued in an action instituted against another joint wrongdoer and no notice is given to him or her in terms of [paragraph (a) of sub-]section 2(2)(a), the plaintiff shall not thereafter sue him or her except with the leave of the court on good cause shown as to why notice was not given as aforesaid.
(b) If no notice is under [paragraph (a) or (b) of sub-]sections 2(2)(a) or (b) given to a joint wrongdoer who is not sued by the plaintiff, no proceedings for a contribution shall be instituted against him or her under [sub-]sections 2(6) or 2(7) by any joint wrongdoer except with the leave of the court on good cause shown as to why notice was not given to him or her under [paragraph (b) of sub-]section 2(2)(b).
(5) The Court may make such order as to costs as shall to it seem to be just: Provided that in any subsequent action against another joint wrongdoer, any amount recovered from any joint wrongdoer in a former action shall be deemed to have been applied towards the payment of the costs awarded in the former action in priority to the liquidation of the damages awarded in that action.
(6) (a) If judgment is in any action given against any joint wrongdoer for the full amount of the damage suffered by the plaintiff, the said joint wrongdoer may, if the judgment debt has been paid in full, subject to the provisions of [paragraph (b) of sub-] section 2(4)(b), recover from any other joint wrongdoer a contribution in respect of his or her liability [responsibility] for such damage (including the reasonable costs incurred in defending the action) of such an amount as the court may deem just and equitable having regard to the degree in which that other joint wrongdoer was at fault in relation to the damage suffered by the plaintiff[, and to the damages awarded]: Provided further that if the court, in determining the full amount of the damage suffered by the plaintiff referred to in [sub-]section 2(1B), deducts from the estimated value of the support of which the plaintiff has been deprived by reason of the death of any person, the value of any benefit which the plaintiff has acquired from the estate of such deceased person no contribution which the said joint wrongdoer may so recover from the estate of the said deceased person shall deprive the plaintiff of the said benefit or any portion thereof.
(b) The period of extinctive prescription in respect of a claim for a contribution shall be twelve months calculated from the date of the judgment in respect of which a contribution is claimed or, where an appeal is made against such judgment, the date of the final judgment on appeal: Provided that if, in the case of any joint wrongdoer, the period of extinctive prescription in relation to any action which may be instituted against him or her by the plaintiff, is governed by a law which prescribes a period of less than twelve months as the period within which legal proceedings shall be instituted against him or within which notice shall be given that proceedings will be instituted against him or her, the provisions of such law shall apply mutatis mutandis in relation to any action for a contribution by a joint wrongdoer, the period or periods concerned being calculated from the date of the judgment as aforesaid instead of from the date of the original cause of action.
(c) Any joint wrongdoer from whom a contribution is claimed may raise against the joint wrongdoer who claims the contribution any defence which the latter could have raised against the plaintiff.
(7) It is proposed that this subsection be repealed in toto.
(8) (a) If judgment is in any action given in favour of the plaintiff against two or more joint wrongdoers, the court may-
(i) order that such joint wrongdoer pay the amount of the damages awarded jointly and severally, the one paying the other to be absolved;
(ii) if it is satisfied that all the joint wrongdoers have been joined in the action,
(aa) apportion the damages awarded against the joint wrongdoers in such proportions as the court may deem just and equitable having regard to the degree of contributory negligence of [in which] each joint wrongdoer [was at fault] in relation to the damage suffered by the plaintiff, and
(bb) give judgment separately against each joint wrongdoer for the amount so apportioned: Provided that any amount which the plaintiff is unable to recover from any joint wrongdoer under a judgment so given (including any costs incurred by the plaintiff in an attempt to recover the said amount and not recovered from the said joint wrongdoer) [whether by reason of the said joint wrongdoer's insolvency or otherwise,] may be recovered by the plaintiff from the other joint wrongdoer or, if there are two or more other joint wrongdoers, from those other joint wrongdoers in such proportions as damages awarded to the plaintiff were apportioned between them [the court may deem just and equitable having regard to the degree in which each of those other joint wrongdoers was at fault in relation to the damage suffered by the plaintiff];
(iii) where it gives judgment against the joint wrongdoers jointly and severally as aforesaid, at the request of any one of the joint wrongdoers, apportion, for the purposes of paragraph (b), the damages payable by the joint wrongdoers inter se amongst the joint wrongdoers, in such proportions as the court may deem just and equitable having regard to the degree of contributory negligence of [in which] each joint wrongdoer [was at fault] in relation to the damage suffered by the plaintiff[;
(iv) make such order as to cost as it may consider just, including an order that the joint wrongdoers against whom it gives judgment shall pay the plaintiff's cost jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful joint wrongdoers his pro rata share of such excess].
(b) Any joint wrongdoer who pays more than the amount apportioned to him or her under [sub-]paragraph (a) may recover from any joint wrongdoer who has paid less than or nothing of the amount so apportioned to him or her, a contribution of an amount not exceeding so much of the amount so apportioned to the last mentioned joint wrongdoer as has been paid by him or her, or so much of the amount paid by the first mentioned joint wrongdoer as exceeds the amount so apportioned to him or her, whichever is less.
(c) The provisions of paragraphs (b) and (c) of [sub-]section 2(6) shall apply mutatis mutandis to any claim for a contribution under paragraph (b) of this sub-section.
(9) It is proposed that this subsection be repealed in toto.
(10) If by reason of the terms of an agreement between a joint wrongdoer
and the plaintiff entered into before the damage was caused the
former is exempt from liability for the damage suffered by the plaintiff
or his or her liability therefore is limited to an agreed amount,
so much of that portion of the damages which, but for the said agreement
and the provisions of [paragraph (c) of sub-]section 2(6)(c)
[or paragraph (b) of sub-section (7)], could have been recovered
from the said joint wrongdoer in terms of [sub-] section
2(6) [or (7)] or could have been apportioned to him or her
in terms of [sub-paragraph (ii) or (iii) of paragraph (a) of sub-]section
2(8)(a)(ii) or (iii), as exceeds the amount, if any, for
which he or she is liable in terms of the said agreement, shall
not be recoverable by the plaintiff from any other joint wrongdoer.
Alternatively, it is proposed that section 2(10) be repealed.
(11) (a) Whenever a joint wrongdoer who is entitled under any provision of this section to recover a contribution from another joint wrongdoer, is unable to recover that contribution or any amount thereof from that other joint wrongdoer, whether by reason of the latter's insolvency or otherwise, he or she may recover from any other wrongdoer such portion of that contribution or that amount thereof as the court may deem just and equitable having regard to the degree of contributory negligence of [in which] that other joint wrongdoer [was at fault] in relation to the damage suffered by the plaintiff and to the full amount of the said contribution or the said amount thereof, as the case may be.
(b) Any cost incurred by a joint wrongdoer in an attempt to recover any contribution from any other joint wrongdoer, and not recovered from that joint wrongdoer, shall for the purpose of paragraph (a), be added to the amount of that contribution.
(12) If any joint wrongdoer agrees to pay to the plaintiff a sum of money in full settlement of the plaintiff's claim, the provisions of [sub-]section 2(6) shall apply mutatis mutandis as if judgment had been given by a competent court against such joint wrongdoer for that sum of money, or, if the court is satisfied that the full amount of the damage actually suffered by the plaintiff is less than that sum of money, for such sum of money as the court determines to be equal to the full amount of the damage actually suffered by the plaintiff, and in the application of the provisions of [paragraph (b) of] the said [sub-]section 2(6)(b), any reference therein to the date of the judgment shall be construed as a reference to the date of the agreement.
(13) Whenever judgment is in any action given against any joint wrongdoer for the full amount of the damage suffered by the plaintiff, or whenever any joint wrongdoer has agreed to pay to the plaintiff a sum of money in full settlement of the plaintiff's claim, and the judgment debt or the said sum of money has been paid in full, every other joint wrongdoer shall thereby also be discharged from any further liability towards the plaintiff.
(14) This subsection was reformulated as section 2(1A)(d) above.
3. Application of provisions of section 2 to liability imposed in terms of Act 93 of 1989 [29 of 1942].- The provisions of section two shall apply also in relation to any liability imposed in terms of the Multilateral Motor Vehicle Accidents Fund Act, 1989 (Act No. 93 of 1989) [Motor Vehicle Insurance Act, 1942 (Act No. 29 of 1942)], on the State or any person in respect of loss or damage caused by or arising out of the driving of a motor vehicle.
CHAPTER III
General
4. Savings-(1) T[he provisions of t]his Act shall not-
(a) apply in respect of any negligent [wrongful] act committed before the commencement of this Act;
(b) [operate to defeat any defence arising under a contract;
(c)] operate to increase the amount of damages beyond any maximum prescribed in any agreement or any law applicable in respect of any claim for damages.
(2) Nothing in this Act contained shall derogate in any manner from the provisions of any law relating to collisions or accidents at sea[, or of any rule of court promulgated before the commencement of this Act under section one hundred and eight of the South African Act, 1909, or under section three of the Administration of Justice Proclamation, 1919 (Proclamation No. 21 of 1919), of the territory of South-West Africa].
5. This Act binds the State.- This Act binds the State.
6. [Application of Act to South-West Africa.- This Act and any amendment thereof shall apply also in the territory of South-West Africa, including the Eastern Caprivi Zipfel.
7.] Short title.- This Act shall be called the Apportionment of Liability [Damages] Act, 1956.
LIST OF CONTRIBUTORS