Die verdeling van die skadedragingslas by onregmatige daad

Abstract

Whenever damage is caused by the concurrent or simultaneous acts of the plaintiff and the defendant problems arise with regard to the compensation thereof. In the early legal systems the so-called "all or nothing"-approach was followed in terms whereof either the plaintiff had to bear all the damage and receive no compensation from the other party or the defendant had to compensate the plaintiff for all the damage which he has suffered. Apparently the courts based their decisions in these matter on causation, since the party who in the eyes of the courts actually caused the damage had to bear it. The principle of apportioning the burden of the damage between the two immediate parties was however not generally applied in solving these matters. In contrast to the earlier legal systems the principle of apportionment of damage is entrenched in most of the modern legal systems. From the results of the legal historical research in this dissertation it is clear that the idea of apportionment of damage originated from the so-called natural law school and more specifically from Christian Wolff. Wolff's ideas weren't applied as such by the courts but were initially incorporated in the so-called natural law orientated codifications of the eighteenth century. Via these codifications the principle of apportionment of damage found its way to the modern apportionment legislation. In South Africa the compensation of damage which is concurrently or simultaneously caused by the plaintiff and the defendant is regulated by the Apportionment of Damages Act 34 of 1956. In terms of section 1(1)(a) of this act the damage is apportioned between the parties in accordance with each party's fault in relation to the damage. From the results of the comparative legal research done in this dissertation it is clear that the scope of the application of the apportionment principle is not as broad as in countries like Germany and England. Being basically an equitable principle of law it is submitted that the apportionment principle should have a broader application in our law of delict. But since this principle is is enacted in a statute the manner and scope of its application are confined to the interpretation of the relevant statutory provisions. This situation is not conducive to legal thinking beyond the confines of the rules and presumptions of interpretation of statutes. In this dissertation however the discussion of the principle of apportionment was done beyond the parameters of the current statutory provisions. A main feature of the current practice with regard to apportionment of damage is that the courts require from the defendant who prays for an order of apportionment to prove that the plaintiff had "fault" in relation to the damage. This requirement of "fault" of the plaintiff (or better known as "contributory fault") is the source of many

dogmatic and practical problems. In the first instance this requirement is incompatible with the basis of the apportionment principle being that self caused damage should be borne by oneself. In the second instance the term "fault" of the plaintiff gives rise to questions such as whether someone can act wrongfully against himself, whether the plaintiff's accountability is a prerequisite for "contributory fault" and whether different forms of "contributory fault" namely "contributory negligence" and "contributory intention" exist. It is submitted that someone cannot act wrongfully towards himself or his property. Since there is no wrongfulness there can also be no fault. Someone cannot be said to be legally at fault when he acts lawfully. The requirement of accountability is likewise not sanctioned since people can harm themselves and bear the harmful consequences thereof without having to be judged accountable for their deeds of self harming. It is further submitted that specific forms of "contributory fault" were invented by academics who wrote about all possible interpretations of the statutory provisions. Although a lot is written about the concept of "contributory intent", it is of very little practical value. Far better and expeditious solutions of matters in which so-called "contributory intent" features can be reached if they are approached on the basis of public policy rather than on the basis of the application of the apportionment legislation. With reference to the historical and theoretical origins of the apportionment legislation it is shown that the apportionment principle should have a much wider application than what it has at the moment and that it could be applied in quite a different manner as that which the courts now do. It is therefore submitted that the apportionment principle being a principle of equity be applied in all cases of delictual liability especially cases of no-fault liability. It is further submitted that in the light of the problems with the "contributory fault" requirement that the emphasis be shifted to causation. The idea of comparing the parties' conduct with each other before an apportionment can be made is to my opinion unnecessary. The apportionment of the damage should be done with reference to causation and not with reference to the fault of the parties. If the courts find it difficult to decide which damage was caused by whose conduct, it is submitted that they should ascertain whose conduct made the specific damage more probable and then let that party bear the damage. In cases where it is impossible to ascertain even the probabilities, the damage should be divided between the parties. In doing so the courts would be enabled to apply the equitable principle of apportionment in a wide range of cases and all the present objections to their doing so which are based on the interpretation of the present legislation would be met by just and logical answers based on the underlying principles of the apportionment idea.