Law of Delict Flashcards (PVL3003F)

This set of flashcards covers vocabulary and key concepts for the Law of Delict (PVL3003F) at the University of Cape Town, focusing on negligence, intent, wrongfulness, and causation.

Diligens paterfamilias

The 'reasonable person' standard used to determine negligence, specifically whether a person in the defendant's position would foresee a reasonable possibility of harm and take reasonable steps to guard against it.

Culpa

The legal term for negligence; it arises if a reasonable person would have foreseen the harm and taken steps to guard against it, and the defendant failed to take those steps.

Dolus

The legal term for intent, which satisfies the fault element of Aquilian liability.

Dolus eventualis

A form of intent where the wrongdoer foresees the possibility of a consequence eventuating as a result of their conduct but reconciles themselves with that fact and proceeds anyway.

Dolus indirectus

A form of intent where the defendant aims at one result but has knowledge that another consequence will unavoidably or inevitably occur as a result of their action.

Pure economic loss

Patrimonial loss that does not result from physical damage to the plaintiff's person or property, such as the loss of toll revenue in Fourway Haulage SA v SA National Roads Agency.

Wrongfulness (Unlawfulness)

The element of delict that assesses whether the conduct complained of infringed a recognized legal right or breached a legal duty to take care.

Legal convictions of the community

The flexible test used to determine wrongfulness, particularly in cases of omissions, based on whether contemporary societal attitudes and constitutional values require the conduct to be deemed unlawful.

Volenti non fit injuria

A ground of justification meaning 'to one who consents, no injury is done'; it requires the plaintiff to have knowledge, appreciation, and subjective foresight of the specific risk.

Informed consent

A requirement in medical delict where a doctor must warn a patient of material risks that a reasonable person in the patient's position would attach significance to before performing a procedure.

Therapeutic privilege

A doctrine that permits medical practitioners to withhold disclosures from a patient if, in their professional opinion, the information would be detrimental to the patient's health.

Necessity

A justification ground where a defendant's conduct in causing harm is objectively reasonable because it was required to avert an imminent threat to a legal interest, such as life.

Private defence

A ground of justification where an act is performed to repel an unlawful attack; it is judged objectively by whether a reasonable person would have perceived an imminent risk of serious injury.

Conditio sine qua non

The 'but-for' test used to determine factual causation; it asks whether the event giving rise to the harm would have occurred if the negligent act or omission were mentally removed.

Soepele maatstaf (Flexible criterion)

The primary test for legal causation or remoteness in South African law, which considers whether the connection between the act and the harm is sufficiently close based on policy and fairness.

Novus actus interveniens

A new intervening event that occurs after the defendant's wrongful conduct and is held to break the chain of legal causation between that conduct and the final harm.

Vicarious liability

The legal principle holding an employer liable for the delict of an employee if the act was committed within the course and scope of the employee's duties.

Reasonable organ of state

A specialized standard of care applied in AK v Minister of Police ($2023$), sourced from the Constitution, requiring the state to take reasonable measures to protect Bill of Rights' protections.

Vulnerability to risk

A policy consideration in pure economic loss cases assessing whether a plaintiff could have reasonably avoided the risk by other means, such as by entering into a contract.

Procreative autonomy

The right of an individual to decide whether or not to reproduce, the violation of which may lead to delictual claims for failed sterilization procedures.

Norm of accountability

A constitutional principle used to determine the wrongfulness of state omissions, emphasizing the state's positive duty to protect citizens and fulfill the Bill of Rights.

Thin skull rule

A principle in legal causation where a wrongdoer must take their victim as they find them, including physical or psychological vulnerabilities.