STRICT LIABILITY

General characteristics for liability without fault

• 1. Fault is not required for compensation

• 2. An act of God and fault on the part of the prejudiced person is generally regarded
as defences
• 3. Strict liability is usually imposed either by legislation or judicial pronouncement in
cases involving activities which as a rule create extraordinary increases in the
risk of harm to the community
• 4. Where strict liability has been imposed by legislation, the extent of the liability is
usually curtailed by fixing the maximum amounts of compensation
• 5. Liability without fault is restricted to cases that involve damage to life and
property.
There are various common law examples of where
strict liability can occur:
• A) Damage caused by animals (Actio de pauperie)
• A person who is harmed may claim damages from the owner of the
domestic animal that has caused the damage
• No fault need be proven on part of owner
• The actio de Pauperie still forms part of our law
To bring an action in terms of action de pauperize, the
following requirements must be met:
• 1. The defendant must be the owner of the animal when the damage is caused.
Mere control over the animal is insufficient
• 2. The animal must be a domestic animal
The tem “domestic” must not be interpreted to strictly because it may
include
even horses
Other wild animals are excluded
• 3. The animal must have acted contrary to what may be expected
of a decent and well-behaved animal of its kind
Therefore a dog that bites, a horse that kicks etc is acting contrary to nature
Various defences have developed in response
to an action of action de pauperie:
• 1. Vis major (an act of God)
• 2. Culpable or provocative conduct on part of prejudiced person
· This is the case if the prejudiced person provoked the animal by for instance hitting the dog or
pulling its tail
• 3. Culpable conduct on the part of an outsider (where an animal is provoked by a
third party eg. Inciting or wounding it and the animal causes damage. In such a
case the animal is not liable
• This also applies where the damage may be attributed to the negligence of a
third party providing that the third party was in charge/control of the animal and
his negligent conduct failed to prevent an animal from injuring the victim
• 4. Where another animal provoked the damaging conduct of the animal involved e.g
by starting a fight
• 5. Volenti non fit injuriaria (voluntary assumption of risk)
 ACTIO DE PASTU
• · Damage can be claimed from the owner of the animal which caused the loss by
eating plants
· It is still part of Zimbabwean law
• · There are three requirements for a successful claim under this head:
• 1. The defendant must be the owner of the animal when the damage is caused
• 2. The animal must cause damage by eating plants
• Eating: In other words not only the grazing of plants but also eating reaped grain
• Plants: Damage is not restricted to grazing or eating but includes damage which
occurs
during grazing for example trampling of crops or breaking branches
• 3. The animal must act of its own volition when causing the damage
 ACTIO DE FERIS
• The bringing of wild or dangerous animals into a public place was
prohibited
• If a person broke this rule and the animal caused damage to a person,
the offender who need not have been the owner, was liable
Damage caused by owners of neighbouring property
(nuisance)
• Nuisance is the unreasonable use of property by one neighbour to the
detriment of another
• · In any way whatsoever (e.g suffocating smoke/unbearable noise or
smell etc
• · Some scholars suggest it is based on fault
• · Common law decisions suggest liability is strict (without fault)
Product liability in terms of the Consumer Contracts Act,

• Increasing mechanization has brought about the daily potential of

prejudice in the form defective products
• · For example, a pregnant woman takes a tranquilizer Thalidomide
which causes nerve injury and she gives birth to a deformed baby
• · For example, fine splinters of glass in salt container cause internal
injury
• · The courts regard manufacturers liability as being within the field of
aquilian action.
• Consumer Protection Bill 2014
 WRONGFULNESS
• Wrongfulness lies either in the infringement of a subjective right or in the
breach of a legal duty
• Some authors suggest the wrongfulness of conduct lies in violation of a
legal duty
• Therefore the manufacturer has a duty according to the legal convictions of
the community (boni mores) reasonably to prevent defective products from
reaching the market or staying in the market and infringing the interests of
consumers
• This has been upheld in Supreme Court Appeal case of Ciba-Geigy Pty Ltd
v Lushof Farms Pty Ltd.
 Case law

“ It is self-evident, according to the legal convictions of the community

that manufacturer acts incorrectly and wrongfully if he makes a product
commercially available which in the course of its designated use, and
due to a defect causes damage to consumer thereof.”
 REQUIREMENTS
1. A defect must be present for there to be wrongfulness
2. Legal convictions of society will decide this
3. GR is that a product will be considered defective if it is unreasonably dangerous
4. And a product is unreasonably dangerous if in the circumstances it does not
• meet the expectations of the reasonable consumer with regard to safety
5. Products that are inevitably dangerous according to their form (for example,
nives, blades, saws) or their content (tobacco, alcohol) cannot be regarded as
defective
6. Shortcomings in the design of a product that injures a passengers eye during an
emergency stop or insufficient warnings or information of products may be
regarded as defective
1. Manufacturer of defective products creates an unusually high risk of harm to the
consumer.
2. This risk is often unavoidable either because the consumer cannot protect himself
against it or because consumer acted with due care
3. The consumers physical mental well-being as entrenched fundamental right requires
the highest measure of protection against defective products
4. Marketing and advertising inspire confidence in the public that products are safe
5. Strict liability serves ensures responsibility on the part of the manufacturer to take
the utmost care.
6. The manufacturer is from an economic perspective, the party most cable of absorbing
and spreading the risk of damage by price increases and insurance
• NB Case law is important to support your claim.
 Quote of the day

• If you have ever felt discouraged, know that success is not built on
success, reflect, refuel and refocus. Its in those moments that feels
like the death of our dreams that our truest potential is actually taking
place.
• GOOD DAY!!!