Fault / Negligence
In order to succeed with a claim for damages arising out of the action of another (excluding contractual claims), it is necessary to prove fault on the part of that person.

Fault can take on the form of either:

  • Intent (which is self explanatory), and
  • Negligence

Negligence is described as conduct (including inaction) which is of a lesser standard than that of a sober, careful and responsible individual acting in consideration of those around him / her.
Put differently negligent fault arises if, when a sober, careful and responsible individual

  • “would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him [financial loss]; and
  • would take reasonable steps to guard against such occurrence”
  • a person continues with that conduct, regardless. 

Negligent conduct can only be attributable to a person if he/she has the mental capacity to understand the consequences of his conduct and also has the physical ability to regulate that conduct accordingly.  For example

  • a 10 year old child does not have the mental capacity to understand the consequences of his conduct.
  • An adult who loses control of his vehicle due to a sudden and unexpected heart attack understands that his vehicle careering out of control may injure someone, but is physically incapable of doing anything to alter the path of his vehicle.

Claimants often complain that the other driver did not have a drivers’ licence.  It is important in this instance to understand the distinction between unlawful (criminal) and negligent conduct (delictual). 
For purposes of civil claims between one person and another, the only issue at hand is that of negligence or intent.

A good example of this is a 10 year old child unlawfully driving a motor vehicle, which is stationary at a stop street when another vehicle rams into the back of him.  Can it be said that the 10 year old was negligent in causing the accident? No, while he may have been there unlawfully, there can be no criticism of his driving at the moment of collision, and as such he did not negligently or wrongfully contribute to the cause of the collision.

Contributory Negligence
It often happens that negligence is attributed to both parties.  It may be that the conduct of one party is more negligent than the other, but if it can be said that the other party could have done something to avoid the injury, or lessen it, then negligence will be attributed to him/her as well.

Contributory negligence is applied most often in motor vehicle accidents, and can be illustrated with the following example:

A, who has right of way, is travelling at a reasonable speed (60km/h) in the far left hand lane of a four lane road when B, who is also travelling at a reasonable speed  along a side road, fails to stop at the stop sign.  B then negligently enters the A’s path of travel and a collision ensues.  A complains that he had right of way and that had B never skipped the stop street, the collision would never have happened.  Unfortunately for A in this example, the law requires him to be on the lookout for anything that may happen and which he may be able to avoid.  A will be considered to have been partly to blame for the collision because if he had been keeping a proper lookout (as is expected of a competent driver), then he would have seen B the moment he skipped the stop street nand would have observed B all the time that he was in the intersection (crossing the three lanes to the right of A), and would at that moment have slowed down, stopped, or taken avoiding action.  A’s failure to do any of the above is considered contributorily negligent and as a result his claim against B for his damages is reduced according to his contribution to the collision.  An appropriate apportionment in this example would be B: 60 – 70% negligent and A: 30 - 40% negligent.


Innocent Victims
If, in the example of A and B above, C had been a passenger in B’s vehicle and had been injured as a result of the accident, then no apportionment would be applied to C’c claim.  The reason for this is that, even though he was the passenger of a negligent driver, he could not have done anything to avoid the collision.
If on the other hand C failed to put on his safety belt, and that failure contributed to his injuries (e.g he collided with the windscreen – suffering head and facial injuries), then he contributed in a small way to his injuries and his claim will be reduced accordingly (by 20 – 25%).

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