Teaching and Learning Activity Solution: Week 7

Module: General Principles of the Law of Delict

HGPLD230-1
Week 7 (21 September 2023)
Unit covered: 5

Please see below the suggested solutions for the week 7 T&L Activity:

Question 1 (10 marks)

Consider the scenario below and answer the question(s) that follow:

During a dark and rainy evening in June 2023, Mary is travelling by car on a quiet suburban street
when she realises that the headlights of her vehicle are not working. Mary is not far from home, and
she has the option of returning home instead of continuing her journey. Mary knows that driving with
malfunctioning headlights is very dangerous in such weather conditions. Mary decides that she wants
to visit her friends nevertheless, and she continues her journey.

Approximately 10 kilometers later, Mary approaches a robot that is currently green, indicating that
Mary may proceed ahead. A vehicle turning from Mary’s left, for whom the robot is currently red, cuts
in front of Mary, and collides with her vehicle. According to the other driver, Sally, she was afraid to
halt at a red robot because the road was completely abandoned and she, as a woman traveling alone,
felt unsafe to halt her vehicle at that particular intersection. Sally also confirms that because Mary’s
headlights were not working, she did not see her.

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 Mary wants to sue Sally for the damages caused to her vehicle, on the basis that Sally did not stop
when she was supposed to. Mary approaches a local law firm to help her in this regard. Mary is,
however, shocked to be informed by her attorneys that there is a risk that she may also be held liable
in the form of contributory negligence in the circumstances.

Required
To determine what portion of damages each party should bear in such circumstances, enquiries must
be made into their relative degrees of fault. Fully explain the different tests that are applied by our
courts to calculate the amount of damages that each party in the above scenario should bear.
Refer to case law in your answer.
(10 marks)

Note to Grader:
• Discretion is allowed to the grader; students’ answers may vary.
• A maximum of 10 marks may be awarded to the student for this question.

Solution: Unit 5, General Principles of Delict Study Guide, page 89

• Two different approaches have been accepted by our courts when calculating the negligence of
each party in such circumstances. ✔

• The first approach was introduced by the court in Jones v Santam Bank 2 SA 542 (A), ✔ namely,
that the conduct of each party had to be assessed separately and then the ratio of the Plaintiff
and the Defendant’s respective faults would be calculated. ✔
• For example, the Plaintiff was 70% negligent in that his conduct deviated 70% from the standard
of the reasonable person, whilst the Defendant was 80% negligent, therefore, 70:80 – which is
calculated as a ratio, and the Plaintiff, therefore, receives compensation for only 53,3% of his
damage. ✔
• The second approach was suggested by the AD in South British Insurance Company Ltd v Smit
3 SA 826 (A), ✔ namely, that once the Plaintiff’s degree of negligence was established, the Court
did not need to look at the Defendant’s degree of negligence and it would be automatically
determined. ✔

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 • For example, if the Plaintiff was 30% negligent, automatically the Defendant would be 70%
negligent. ✔

• In the subsequent case of AA Mutual Insurance Association v Nomeka 1976 3 SA 45 (A) ✔ the
Court applied the approach in Smit’s case, that is the degree of the Plaintiff’s fault would
automatically determine the degree of fault of the Defendant. ✔
• Most academics prefer the more mathematical approach in Jones’ case. ✔ However, as the
Supreme Court of Appeal has not yet ruled on this matter it is possible to use either approach in
the interim. ✔

Learning Outcomes assessed in this question:

• Explain what is meant by ‘contributory negligence’
• Describe the common Law approach to apportioning damages

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