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RC Steenkamp 8 May 2018 EXTRA CLASSES THIS WEEK

 Wednesday 16/05/2018: ▪ 12:00 – 14:00 ▪ HS 9 (E-Building)

 Thursday 17/05/2018: ▪ 12:00 – 14:00 ▪ C 10 (C-Building) INTRODUCTION

 Balance of probabilities vs beyond a reasonable doubt?

 Names of the parties in civil and criminal cases?

 Fault: intention vs negligence?

 Examples of /delicts? DEFINITION – ‘CIVIL WRONG’

 What is a tort? ▪ ‘A civil wrong independent of

 Two elements to this definition: ▪ A civil wrong; ▪ Independent of contract

 What does it mean if it is a civil wrong? ▪ Differentiate a civil wrong from a TORTS VS ?

Torts: Crimes: 1. A wrong against an individual 1. A wrong against the State 2. Case will be started by the individual affected (the 2. Case is almost always started by the State plaintiff/claimant) 3. Defendant will be sued in civil courts – civil action will 3. Accused (‘defendant’) will be prosecuted in criminal be brought against the defendant courts – accused faces criminal charges 4. If liable, the defendant will pay damages to 4. If guilty, accused will be prosecuted/punished compensate the plaintiff 5. Main purpose? To provide the victim (person who has 5. Main purpose? To maintain law and order and protect suffered from the infringement of a right/duty) with a the public remedy to enforce their right 6. Branch of private law () 6. Branch of public law (criminal law)

7. Burden of proof rests with the claimant – standard of 7. Burden of proof rests with the prosecution – standard proof is ‘balance of probabilities’ of proof is ‘beyond a reasonable doubt’ DEFINITION – ‘INDEPENDENT OF CONTRACT’

 NB!! Liability in tort law comes from either: ▪ A breach of a duty owed by members of society towards each other; or ▪ The infringement of a right of another person

 Therefore, tort law protects the rights and freedoms of individuals (either their property or their reputation).

 Where does liability in contract law come from? ▪ So what does it mean if tort law is independent of contract? DEFINITION – ‘INDEPENDENT OF CONTRACT’

 Like a tort, breach of contract is a civil wrong

 However, liability in contract law requires a pre- existing contractual relationship while no such connection is necessary in a tort case DEFINITION -OVERLAP

 Concurrent liability? ▪ Overlap between law of tort and contract law? ▪ Overlap between law of tort and criminal law? FUNDAMENTAL PRINCIPLES OF TORTIOUS LIABILITY

 Prima Facie, there needs to be a wrongful act by the defendant which causes damage or loss to the claimant

 3 fundamental principles that need to be considered: 1. Causation; 2. Remoteness; 3. Contributory Negligence 1 CAUSATION

 Claimant must prove a causal link

 Causation is a fundamental ingredient for tortious liability ▪ Barnett v Chelsea & Kensington Hospital Committee introduced the ‘but-for’ test ▪ Facts of the Case? ▪ Possible problems with the ‘but-for’ test? 1 CAUSATION

 Problems with the ‘but-for’ test? ▪ ‘A purist might say that the crystal clear water in the well of principle has been polluted by the beguiling influence of public policy’

 McGhee v National Coal Board ▪ ‘as a matter of policy or justice… it is the creator of the risk who… must be taken to have foreseen the possibility of damage, who should bear its consequences’

 Public policy and causation? 2 REMOTENESS

 One action has the potential to set into motion an unlimited amount of consequences

 Therefore, a defendant’s liability must be limited in time in space – consequences of the original act must not be too remote

 Novus actus interveniens? 3 CONTRIBUTORY NEGLIGENCE

 Even where a defendant’s actions are established as being the cause of the damage/injury, this may not be the only cause

 ‘Defence’ for the defendant – can be used to indicate that the damage/injuries would have been less severe

 Law Reform (Contributory Negligence) Act of 1945 ▪ Froom v Butcher THE MAIN TYPES OF TORTS

 Following torts are of relevance for the present lecture:

1. Defamation 2. Nuisance 3. Trespass 4. Negligence 1 DEFAMATION

 The publishing of untrue statements that reflect negatively on another’s reputation

 Requirements for defamation? ▪ Statement must be defamatory; ▪ Statement must refer to the claimant ❖ Eastwood v Holmes ▪ Statement must be published/communicated to a third party

 Libel vs slander? 2 NUISANCE

 Private vs public nuisance?

 Private nuisance ▪ Unreasonable interference with reasonable enjoyment of land ▪ Private nuisance could (1) cause physical damage to the land or (2) disturb the claimant’s enjoyment of the land 2 NUISANCE

 Public nuisance ▪ An act or omission that materially affects the reasonable comfort and convenience of a particular group or society in general

 Not limited to interference with land

 Usually a crime and not a tort 3 TRESPASS

 Differentiate between THREE types of trespass: 1. Trespass to goods; 2. Trespass to land; and 3. Trespass to the person

 Trespass of goods involves the intentional and forceful interference with goods which are possessed by another

 Trespass to land is the unjustifiable interference with the possession of land 3 TRESPASS

 Trespass to person involves three sub- categories: 1. Assault; 2. Battery; and 3. False imprisonment

 All three of these torts are also crimes