THE APPORTIONMENT OF DAMAGES ACT, 1956

Issued by: The South African Law Commission

MEDIA STATEMENT BY THE SOUTH AFRICAN LAW COMMISSION

DISCUSSION PAPER 67

THE APPORTIONMENT OF DAMAGES ACT, 1956

The South African Law Commission has published, for general information and comment, a discussion paper reviewing the Apportionment of Damages Act 34 of 1956. The discussion paper only contains the Commission's preliminary proposals.

With the introduction of the Apportionment of Damages Act in 1956 the common law relating to contributory negligence was amended. The Act empowers the courts to determine the degree of fault of each part in an action for damages based on negligence and to apportion the damages accordingly. The Act also repealed the common law rule of the last opportunity of avoiding an accident as the test of liability and amended the law relating to joint wrongdoers.

The provisions of the Act are frequently applied in motor vehicle accidents cases where both parties are partly to blame for the accident. The court apportions the liability of the respective parties and awards damages accordingly. The Act also makes it possible to sue joint wrongdoers in the same action. A multiplicity of actions is thus avoided.

The Act has been on our statute book since 1956 and has only been amended twice. It has been working fairly well especially if its frequency of use in our courts is considered. The Commission is therefore careful not to endanger the very foundation of our law of contributory negligence or of the law relating to joint wrongdoers. A review of the Act is, however, necessary as its application causes several problems in practice.

In the discussion paper the Commission addresses, among others, the following possible matters for reform:

• The enforcement procedure against third parties. There is, for example, no equivalent to the third party rule (Rule 13) of the Supreme Court in the Magistrate's Court. This makes the third party procedure in the Magistrate's Court ineffective.
• The legal uncertainty as to the meaning of `fault' as defined in the act. `Fault' ordinarily entails negligence or intent on the part of the wrongdoer. Two of the questions raised is whether the Act allows a defence of contributory intention and whether the Act applies to other intentional acts (e.g. assault). If the Act were to apply in the last instance, then the liability of the person assaulted can be apportioned and his or her damages reduced.
• At present the Act only applies to delictual damages. The possibility of making the Act applicable to contractual damages is being investigated. In the case of such an extension, the provisions of the Act should, in the Commission's view, also apply to cases of breach of trust, breach of a statutory duty (where fault is a requirement) and breach of a fiduciary duty.
• Some consequential changes are also suggested. The Act, for instance, still refers to the Motor Vehicle Insurance Act, 1942 and the Administration of Justice Proclamation, 1919.

The discussion paper is obtainable free of charge from the Commission on request.

Correspondence should be addressed to: The Secretary South African Law Commission Private Bag X668 Pretoria 0001.

Telephone (012) 322 6440. (Mrs P Kotze) Facsimile (012) 320 0936 E-mail salawcom@cis.co.za

ISSUED BY THE SECRETARY, S A LAW COMMISSION, PRETORIA

DATE: 18 October 1996

CONTACT PERSON FOR ENQUIRIES IN RESPECT OF MEDIA STATEMENT: G O HOLLAMBY (012) 322 6440