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Topic 3 - Conduct

Presentation about conduct

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21 views19 pages

Topic 3 - Conduct

Presentation about conduct

Uploaded by

100bluebeams
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Topic 3

Conduct
Overview

1. Introduction

2. Human conduct

3. Voluntary conduct and the defence of automatism

4. Commission and omission

5. Animal conduct
1. Introduction
• Element of a delict
o Fundamental requisite for delictual liability

• Definition
o NPV: “a voluntary human act or omission”

• Factual question?
o NPV: “The law itself determine what is regarded as ‘conduct’ and
thus, in a sense, a normative approach is followed.”
1. Introduction

• Forms of conduct
o Positive physical conduct

o Positive conduct in the form of words, i.e. statements

o Negative conduct- omission.

• Requirements for conduct


o Human conduct

o Voluntary

o Act/omission
Conduct
1+2+3

Positive
Human Voluntary act /
1 2 omission
3
Characteristics of conduct
By a human being:
The conduct must be performed by a human being.
Juristic persons also have the ability to act, but through their
officials (human beings)= vicarious liability
Although animal behaviour does not amount to conduct, the
element of human conduct is present if the animal is used as
an instrument
If X (human being) uses animal as instrument, e.g. sets his
dog on Z, the act is that of X.
Inanimate objects too can be used as instruments. Human
conduct element is still present.
2. Human conduct

• Fault based vs strict liability


• Animal behaviour
o Distinguish between instances where animal used as
instrument and not
o Jooste v Minister of Police 1975 (1) SA 349 (E)

• Juristic person
o NPV: “An act performed by or at the order of or with the
permission of a director, official or servant of a juristic
person in the exercise of his duties or functions in
advancing or attempting to advance the interests of the
juristic person, is deemed to have been performed by the
juristic person.”
Characteristics of conduct
Must be voluntary:
Voluntariness = conduct must be subject/ susceptible to the
actor’s will and control i.e. the actor must possess the mental
ability to control his/ her muscular movements.
Voluntariness= does the actor have the capacity to act? Can the
actor make a decision to act or to refrain from acting?
Voluntariness does not mean that person’s conduct should be
rational or explicable or that the actor desired the conduct.
The capacity to act is not equal to the capacity to form fault.
e.g.: infants or the mentally ill usually act voluntarily but this
does not mean they have the capacity to act responsibly. They
lack accountability, and therefore cannot form fault.
3. Voluntary conduct

• Subject to defendant’s control and will

• Implies mental ability to control muscular movements


Defence of automatism

• Unable to control muscular activity


o Compulsion – vis absoluta

o Reflex movement
o Unconscious state

o Other
3. Voluntary conduct
Defence of automatism
• Defendant contends he did not act voluntarily, but acted involuntarily or
subconsciously / unconsciously/ mechanically
• So, with the defence of automatism the actor/ defendant argues the
inability to control muscular movements

• The following conditions have been deemed to cause a person to act


involuntarily:
• Absolute compulsion (vis absoluta). Must be distinguished from relative
compulsion (vis compulsiva)
• Reflex muscular movements: e.g sneezing.
• Mental illness
• Unconscious state: e.g during sleep, a fainting fit, an epileptic fit,
extreme intoxication, extreme emotional state (rage or severe stress),
‘black out’.
When automatism will not succeed
o Impulsive or spontaneous acts: are not regarded as
reflexive acts and thus deemed voluntary.
Examples of impulsive spontaneous acts- Y reacting to a
bee sting while driving and losing control of the vehicle.
X looses control of the vehicle because of a burning
match thrown on his lap.
– The rule ‘actio in sua causa libera’ literally translated
means ‘an act that’s not in his power (at the time) but
its (original) cause was in his power’
When automatism will not succeed
o Intentional prior conduct - actio libera in causa
(antecedent liability)
o Occurs where defendant intentionally/ deliberately
creates a situation where she acts involuntarily in
order to harm another.
o e.g. X gets intoxicated/ uses a drug with intention to
injure Y.
o Liability is based on the antecedent voluntary act- ie
he/she is held liable for the culpable conduct in
creating the state of automatism.
When automatism will not succeed
o With the actio libera in causa two stages can be
identified:
o 1: X gets intoxicated – intentional, voluntary act;
o 2: X stabs Y – no act because too intoxicated to control
bodily movements;
o X is liable because of intentional, voluntary act at stage 1
causes damage at stage 2.
o Negligent prior conduct- where the defendant was
negligent with regard to his ‘automatic conduct’.
o Thus, a reasonable person would have foreseen the
possibility of causing harm while in a state of automatism
and should have taken steps to prevent the harm.
o Wessels v Hall and Pickles (Coastal) Pty Ltd 1985 (4) SA
153 (C)
The defence of Automatism
Defence approached with caution by courts.

The factual circumstances of a case are important


in determining whether state of unconsciousness +
possibility of harm were reasonably foreseeable &
preventable.

Onus rests on the plaintiff to prove that defendant


acted voluntarily on a balance of probabilities
3. Voluntary conduct

Molefe v Mahaeng 1999 (1) SA 562 (SCA)

• Facts

• Cause of action

• Legal question

• Onus
Molefe v Mahaeng 1999 (1) SA 562 (SCA)
 Plaintiff and defendant were involved in a vehicle
accident. Defendant raised the defence of automatism-
‘sudden, unforeseen and uncontrollable blackout’.
 Court held- the plaintiff has to establish the defendant’s
conduct and negligence on a balance of probabilities.
 In casu the plaintiff did not discharge the onus of proving
that the defendant’s conduct was voluntary, that the
defendant had not had a black out and that he had
reasonably foreseen the possibility of blacking out before
it occurred.
 As such plaintiff’s claim had to fail & the defendant’s
defence of automatism succeeded.
4. Commission and omission
• c. Act can be a commission or an ommission
• A commission (positive act) or an omission (failure to act) may
amount to conduct.
NB: Delictual liability for omissions is limited to cases where there is a
legal duty to act positively (i.e. omissions are only WRONGFUL if there
is a legal duty to act in the circumstances).
Circumstances may make the distinction between the two complex
where the activity is continuous and there is an overlap.
e.g.:
X fails to stop at traffic light & collides with Y: possible to view as
both a commission (driving) and omission (failure to stop).
But, the preferable view is that this is a negligent performance of
positive act (driving);
Z, a policeman, offers X a lift, along the way Z rapes X:
The rape of X - positive act;
Failure of policemen to protect X– omission.
5. Animal behaviour

A delict can exist where harm is caused by animals without


the involvement of human conduct.
e.g. actio de pastu & actio de pauperie
• Liability based on owner-animal relationship rather than
conduct
In essence, delictual liability is transferred
Summary: Conduct

Conduct

Human Voluntary
Act
Conduct Conduct

Natural Juristic Animal Defence of Positive


Omissions
persons persons Behaviour automatism acts

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