Liability without Fault

General Principles
- Liability without fault is also known as strict liability
- Strict liability is usually imposed by the common law, legislation or judicial
pronouncements
- Liability without fault is usually restricted to damage to life, limb and property
- Examples of common law actions.

Vicarious liability
- Definition: legal liability is imposed on one person for a delict committed by
another
- No fault is required upon the party on which the liability is imposed
- Vicarious liability only operates if when there is a relationship between the
wrongdoer and the person held accountable
- Employer/employee; principal/agent; motor vehicle owner/ motor behicle driver

General requirements:
- The relationship must be in existence at the time of the delict
- Course and scope requirement
- If agent, must have been acting within course and scope of authority
- In the case of a motor vehicle driver:

The owner must have given the driver authority to drive or must have been
supervising the driving and the vehicle must have been driven to fulfil the
interest of the owner

Vicarious liability test

- The standard test was set out by the AD in Rabie and extended by ORegan in K
v Minister of S & S
- The CC held that the test for vicarious liability in the context of South Africas
constitutional democracy has both a factual and a normative component
- The test is self-evidently both subjective: in that the employees intention in
engaging the conduct in question is taken into account;
- Objective: the court also considers whether objectively speaking, there is a
sufficiently close link between the employees conduct and his employers
business
- Not black and white: depends on circumstances of the case
Lin Scott Article: read (vicarious liability in test)
Minister of Police v Rabie; K v Minister of S and S; F v Minister of Safety and
Security

- See Linscott a critical analysis of the majority judgment in F v Minister

- Principles derived from these cases:

a) Emphasis placed on the course and scope requirement

b) NB: if/when an employee has acted contrary to this employers directions
and instructions, to the extent that his conduct has no relation to the duties
he was appointed to carry out, the employer will not be held vicariously
liable (deviation cases note outside course and scope vs deviation)

Your principle does not hire you to go collect or carry out personal tasks but
because its your principle and they request you to do that, and you cause harm
during that duty it is a deviation case sufficiently close link even though
instructions fall outside the course and scope of employment

- In deviation cases, the court has to determine the existence of a sufficiently

close link between the employees delictual act and the business of the
employer
- If such a link exists, employer will be held vicarious liability
 Damages
Brief Recap
- The Law of delict regulates and determines the circumstances of loss
- Allows the burden of the loss to be shifted from one party to another
- Imposes an obligation on the guilty party to compensate the injured party
- A delict is:

Wrongful conduct by one party which causes harm to another. In order for the
wrong party to receive compensation

Introduction:
- Basic definition and terminology: damage/loss or harm suffered by a plaintiff
gives rise to a damages claim and a damages award

Patrimonial Loss (financial loss)

- Personal injury (medical expenses)
- Damage to property (cost of repair)
- Pure economic loss (breach of contract)

Non-patrimonial loss
- Harm which cannot be measured in monetary terms (reputation, dignity, pain and
suffering)

Distinctions and limitations

- General v Special Damage: special damages has to be pleaded and established
by evidence
- Delictual v constitutional damages: if there is an effective relief available in
private law (delict), the courts will not necessarily award constitutional damages
as that would amount to double compensation

Limitations to the scope of damages claimable

- Loss of income or earnings originating from unlawful activities (Dhlamini v Protea
Assurance)
- Rule also applies to dependants (Santam Insurance v Ferguson)
- Limitation applies only to loss of income NOT to loss of earning capacity
General principles: patrimonial and non-patrimonial loss

- Once and for all rule: Mitigation of loss rule, and prospective loss
- NB: applicability of these depends on the facts and circumstances of each case
but apply to all forms of harm

Once for all and ruke:

A person has to claim compensation for all damage incurred past and future loss, as
well as patrimonial loss and non-patrimonial loss, in a single action if the harm is
based on a single cause of action

Cause of action
- Single cause theory: Oslo Land Co Ltd v The Union Government
- Facta Probanda approach: Inasmuch as single cause theory is entrenched in law,
recent cases favour facta probanda approach

Once and for all rule: practical implications

- Prescription s 11 Prescription Act
- An unsuccessful claim does not entitle you to another claim on the same facts
and cause of action

Mitigation of Loss
- Rule: every plaintiff has a duty to mitigate his/her damage (meaning)

Basic Principle
- A plaintiff is obliged to take all reasonable steps to limit the damage
- Plaintiffs can only claim for harm which could not have been reasonably
prevented
- A plaintiff may also recover damages for any loss suffered or costs incurred while
undertaking those steps
- The defendant will only be liable to compensate the plaintiff for the actual loss
sustained even if the plaintiff did more than what the law required him to do
- The onus of proving that the plaintiff did not properly fulfil his duty to mitigate lies
with the defendant
- Lets say you are in an accident, caused by Raymond, and now you have to
hire/rent a car so firstly, the original loss is the damage to the vehicle and the
other patrimonial loss is the fact that you cannot go to work, and now you have to
rent a car etc (so you claim for the original loss, then you also claim for the
 mitigation of loss) but you are required to take steps to mitigate the loss before
you can claim.

Macs Maritime Carrier v Keeley Forwarding; Shrog v Valentine; Kellerman v South

African Transport Services

Prospective Loss
Definition: Damage which will, with a sufficient degree of probability (more than a
mere possibility), materialise after the date of the delict and after the date of the
trial
- Prospective loss consists of: future patrimonial harm (lucrum cessans) future
pain and suffering
- Nb: excluding personality infringements
- Examples of patrimonial loss recognised in practice:

Loss of earning capacity, future medical expenses

Future loss of support and future loss of profit

Why is calculating prospective loss so important?: Because of all the implications of

the once and for all rule

Burger v Union National South British Insurance Company

- Two pillars: prospective dimension and a present one
- NB: link between present harm and future loss

Onus of proof on a balance of probabilities

Prospective loss is a subject to a contingency allowance
The probability of prospective loss impacts damages claims
Unlikelihood of prospective harm results in a negative contingency adjustment
(ie decrease the damages award)

Calculating Prospective Loss

- Guidelines for calculating prospective loss: Beverly v Mutual and Federal
- Beverly case:

Court considers the facts that are known at the date of the trial and the value
of money (the currency) at that time:
 When calculating prospective loss courts also consider: Inflation (provision for
the depreciation of the value of money) and contingencies (court considers
that it may be wrong in its calculations)

- Nb: there is no fixed formula for making contingency adjustments

- Bailey and Burger cases confirm courts always consider both + and
contingencies

Calculating loss of earning capacity (of children): Bailey case

2 Approaches:
1) The judge may make a round estimate of an amount which seems fair and
equitable (educated guesswork)
2) The judge may make its assessment by means of mathematical calculations
based on the evidence supplied by the plaintiff (but this is also guesswork)