What are laws of delict?
The occurance where party A commits a wrong towards party B is known as delict. There are five elements of delict namely: conduct/act, wrongfulness, fault, causation and damage. Before an individual can be labelled as being delictually liable, it is important for all five of these elements to be present, if one is missing then the act cannot be that that delict was committed.
The vital principle in law is “res perit domino”, meaning that each person must accept the damage he/she suffers. However, there are situations where the law identifies the shift in the responsibility to accept the damage, from one person to another. The law of delict controls the situations in which a person is obliged to accept the damage he/she has caused to another person. In these cases the person has a right to claim compensation from the wrong-doer who also has an responsibility to compensate him/her for the damage he/she has caused the other person. The also court has to define the delictual liability of the wrong-doer.
The five elements of delict
1. Conduct/Act
Act/conduct is the voluntary human act or omission. Omission refers to when the individual fails to act and prevent harm towards someone else(therefore technically the absence of act). Omission can take two forms, it can be the absence of acting to prevent harm or it can be in the form of negligence that caused harm towards another.
Defence of Automatism
Automatism is a protection available that proves the person did not act voluntarily. A few examples of automatism are compulsion (being held at gunpoint), having an epileptic fit, having a mental disease and being under hypnosis. However, this defence of automatism is not applicable if the person negligently or intentionally produces a situation in which he/she acts involuntarily (like driving a car when the person know they are prone to epileptic fits).
2. Wrongfullness
For the wrong-doer to be held delictually liable, their conduct must be viewed as wrongful. There are two question that can be asked in order to determine whether a conduct is wrongful, firstly has legal interests being infringed and secondly, was the legal interest infringed in an unreasonable manner. The conduct is therefore wrongful if yes was answered to the above questions. However, wrongful conduct can be excused by the following: private defence, when one defends oneself or someone else as a third party(killing someone who is trying to kill you); necessity, when one is forced in a position by a superior force and she/he is able to protect her/his interests or the interest of someone else by harming an innocent third party (such a situation would be breaking down someone else’s door in order to escape a fire); provocation, if the wrong-doer is provoked by words or actions that caused him/her to harm that person; consent, this is when a person who is legally capable of expressing his/her will gives someone consent to harm them(tackling someone in a rugby game; authority/official capacity, an act is not wrongful if acted out while performing statutory authority; power of chastisement, this is when parents or someone in “loco parentis” have advantage of having authority over their children and lastly the execution of an official command meaning that an act is not wrongful if the harm is carried out by lawful commands.
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3. Fault
Simply put fault is when someone can be blamed for his/her actions. There are two types of fault namely: intention and negligence. Intent is when someone’s actions were to purposefully harm knowing it is wrong. Negligence as mentioned above, is the unintentional committing of a wrong deed and when this occurs, the reasonable man test can be used by asking the following two questions: Could the reasonable man have predicted his/her action would cause harm? If yes, were there steps that could have been taken to avoid this harm? The person is therefore negligent if yes was answered to both questions.
Before the wrong-doer can be held responsible for his/her actions, it has to established whether or not he/she can be held accountable. Every person is accountable for their own actions if they can differentiate between right and wrong and behave in agreement with such distinction. With regards to the South African law, people cannot be held accountable if one or more of the following factors are present: having a mental illness or disease, being intoxicated, be provoked and children between the ages of 1-7 can never be held accountable, ages 7-14 can be proved to be accountable, ages 14 and upwards are held accountable.
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4. Causation
There has to be a link between the act and the damage for delict to exist. Simply put, did the conduct cause the damage?
5. Damage
There are two types of damage: patrimonial loss and non-patrimonial.
Patrimonial loss
A patrimonial loss can be conveyed in money. For example the money it is going to take to fix a car after an accident is a patrimonial loss. An imperative characteristic to remember with regards to patrimonial loss is that of mitigation of loss. The wrong-doer has the responsibility to prevent any further damage to the victim.
Non Patrimonial Loss
Non patrimonial loss does not exactly have a monetary value but the damages or harm awarded will be in monetary terms. A few examples of situations would be loss of amenities of life and a shortened life expectancy, suffering and pain, disfigurement and emotional shock.
Examples of the five elements of delict with regards to case studies
In the PGCE class, an example case study was used to explain the law of delict.
Example 1
“Mr Trolley is employed as a janitor at Spread Eagle School for the Arts (Pty) Ltd He is used regularly to move stage equipment and sets from storage to performance theatre. Always in a hurry he regularly stacks more equipment on his pallet-jack than it should safely carry. He pushes the load at very fast speed and is unable to see ahead. Although it occurs to him that he might collide with somebody he decides the possibility is too slight to worry about. One day, while under the pressure of time constraints to move scenery out of storage, he knocks down a parent volunteer at high speed and causes a fracture of her right femur.”
With regards to the above case study the act would be that Mr Trolley knocked down a parent while transporting his overly stacked pallet-jack. With regards to wrongfulness one should remember that wrongfulness is a much larger concept than unlawfulness in the sense that not all wrongful acts are a violation of common law. Therefore it was wrong of Mr Trolley to over stack equipment on his pallet-jack and travel at a high speed. The fault in this case study is that of negligence. Mr Trolley was being negligent as he failed to follow proper procedure and required degree of care for the safety of others. He was also aware of the that over loading the pallet-jack with equipment and travelling at a high speed might result in him colliding with someone but he ignored this and decided to take his chances. The causation in the case study is the act of Mr Trolley knocking the parent down which caused the parent to fracture her right femur. The damage is said to be patrimonial loss as there are medical costs involved and because the parent might have to take leave from work for a few days with experience loss of income. It is clear that all five elements of delict are present in the above case study.
Example 2
“Mr Romeo is a teacher in the Science Department at Soho High. Unknown to anyone on the staff Mr Romeo has contracted HIV. He has been tested and is aware of his status. Juliet is a grade twelve learner at the same school, at a school Juliet asks Mr Romeo to dance which he agrees and afterwards he asked her to come with him to the bell tower which he agrees to do. Two months later Juliet is pregnant and is HIV positive. She then confesses that she and Mr Romeo had sexual relations the night of the dance.”
The act in the above case study would be Mr Romeo and Juliet having sexual relations. The wrongfulness is that the act infringed on Juliet’s rights. Mr Romeo is charged with statutory rape, assault with intent to inflict bodily pain and attempted murder as he gave her HIV.
Juliet’s parents are also suing the school and the education department where the school is situated as the second and third offenders in their suit against Mr Romeo .The school and the GDE faces a claim for damages for the violation of their daughter’s personal rights. The fault in the case study falls with Mr Romeo under negligence. Mr Romeo knew he is HIV positive and still he had sexual relations with Juliet, he knew there might be a chance that he could give her the virus. The causation is the link between the two having sexual relations and her falling pregnant and being HIV positive. The damaged caused to Juliet and her parents are both patrimonial loss as well as non-patrimonial loss. Patrimonial loss because of the medical treatment Juliet will now need since she is pregnant and HIV positive. The baby may or may not be HIV positive and Mr Romeo will need to pay maintenance of the child. The damage is also non-patrimonial because Juliet is emotional shocked as she now has a shortened life expectancy and because of her life threatening virus she will experience much suffering and pain.
Implications for teachers
Teachers, schools and education authorities need to know and understand the delict laws and laws of negligence and what needs to be proved in order to decrease the chances for a successful lawsuit by learners or parents. Majority of cases are handled outside of the court. The wrong-doer(teacher) usually takes responsibility and agrees to pay compensation. It does not reduce the fact that an individual has been negligent and there could be employment repercussions even though the case was not open court. Negligence and delict are features of how the law can impact on the practice of teaching and teachers responsibilities towards learners. Teachers knowledge of the elements of delict is insufficient in an growing controversial society. Teachers need to have an understanding of the use of the principles in particular cases are important. The law is not static, it is continuously changing and evolving therefore it is of utmost importance that schools and teachers stay up to date with new changes to avoid unpleasant situations. Legal issues should be an essential module in undergraduate programs and a vital part of on going and professional progress. While this is imperative, it is the classroom teachers who are in contact with learners and are responsible for learners safety on a daily basis. Therefore, platforms need to be created to provide teachers with sufficient knowledge of the level of care required by the law and to be informed of advancements in common and statutory law that affect their teaching practices. Nonetheless, it is important that a balance is found between the demands of the law to take responsibility of learners care in order to avoid injuries or situations where the teacher can be blamed for something that has happened to the learner.
Conclusion
While it is not likely that a school or teacher will be charged because of the laws that guard teachers and schools, there is enough case law to indicate that it can still and does happen. To effectively sue in delict the victim must prove all elements of delict. Even if one element is absent, the victim would fail to prove his/her case. Teachers and schools have to be aware of their legal responsibilities to learners as well as know their rights as teachers. Teacher are not always in control of what may happen in the school be it in classroom, on the sports field or on a school trip. This displays itself as a duty to protect learners from any harm that are rationally foreseeable. To avoid any harm which are rationally foreseeable, teachers as well as school managers should at all times keep an suitable level of care given the situations. The costs for failing to meet the level of a reasonable teacher and in the occurrence a learner suffers harm, the teacher or school could face an action in delict. The impact law has on education cannot be overlooked and should be part of undergraduate teaching programmes as well as part professional workplace development. Although teachers have legal duty for the safety of their learners, teachers are also protected by laws and should be aware of these laws to also protect themselves. It is expected that teachers act with caution, guidance and functional leadership. They are obligated to lookout the foreseeable harm that could occur, to protect against risk, to take provision against damage and lastly to act as the learners’ parents would expect them to act in the fostering and teaching of their children
