UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 SUBJECT, COURSE AND CODE: DELICT (LAWS2DL) (LAWS3DL)

DURATION: 3 HOURS External Examiner: Internal Examiner: Mr R Scott Professor J Lund Ms P Singh

TOTAL MARKS: 100

STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO WRITE LEGIBLY __________________________________________________________________________________

PLEASE NOTE:

This question paper consists of SIX (6) pages. Please see that you have them ALL.

NB: ANSWER SECTION A AND SECTION B IN SEPARATE ANSWER BOOKS

INSTRUCTIONS FOR SECTION A All questions must be answered. Please pay attention to the mark allocation to make sure you apportion your time appropriately. Please note that a question for two, three or five marks does not imply that a superficial analysis of the law is required. What is required in the case of each question regardless of the mark allocation is an analysis of the relevant law and the application of this law to the question posed.

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 DELICT (LAWS2DL) (LAWS3DL) PAGE 2 SECTION A

QUESTION 1 Jabu, aged eleven years, was severely burnt in a fire that swept through part of the premises of Sollys Scrap Metals (Pty) Ltd [hereafter referred to as Sollys]. It appears that the fire was started by some unknown person in the open veld adjoining one side of Sollys premises. At the time Jabu and other children, who live in an informal settlement on the opposite side of Sollys were playing among old rusted motor-vehicle wrecks. While scrambling out of one of the vehicles on the approach of the fire, Jabus foot had become caught so that he was unable to escape the flames. Sollys premises were surrounded by a mesh fence about 1,3 metres in height. Parts of the fence were in a state of disrepair, so that the children could, without great difficulty, gain access to the premises. Inside this perimeter fence was a space of bare earth about 10 metres in width, used as a road by the vehicles transporting scrap. Most children in the informal settlement, including Jabu, had been sternly warned by their parents not to enter Sollys premises because of the dangers created by heavy vehicles and equipment used to move, process and crush the scrap metal, and also because of the danger of heavy scrap, often precariously piled up, falling onto the children. For substantially the same reasons, Sollys employees have always chased out any children found within the premises. Although there had previously been veld fires on the adjoining property, none had ever spread into Sollys. Available evidence indicates that this is attributable to several factors: (a) (b) (c) The surrounding veld is very sparse, The road on the inside of Sollys perimeter creates a firebreak, and There is relatively little combustible material in the scrap yard.

In a claim for damages brought by Jabus father, in his personal capacity and as Jabus guardian, against Sollys Scrap Metals (Pty) Ltd, the measure of damages is not in dispute. However Sollys representatives argue that: 1. 2. 3. Neither Sollys nor its servants were negligent; and / or the damage suffered by Jabu was too remote, i.e. that no causation is present; Alternatively Jabu contributed to his own damages. [25 MARKS]

Consider the success or deficiencies of all three of these arguments.

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 DELICT (LAWS2DL) (LAWS3DL) PAGE 3 QUESTION 2 Discuss Xs chance of succeeding with a claim for emotional shock against Y on the ground of his negligent conduct in the following cases: (a) X is involved in a motor car collision with Y. X sustains multiple injuries and suffers from serious consequential shock. [3 marks] X observes how a fellow passenger dies in a bus accident that is caused by Y. In order to recover from the shock, he has to lie down and rest for an afternoon. [3 marks] X undergoes a personality change as a result of the shock he sustained when he and his brother ran across a street and his brother was run over and killed by Y in front of his very eyes. X himself was also in personal danger. [3 marks] X must undergo medical treatment for the shock he experienced when he was informed that his only child had died in an accident as a passenger on Ys motor vehicle. [3 marks] X has a stroke when he sees how his motor car is knocked off a bridge by Ys motor car. X suffers from hypertension and the medical advice is that the stroke was caused due to the hypertension and the stress of seeing the motor car getting knocked of the bridge. [3 marks] [15 MARKS]

(b)

(c)

(d)

(e)

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 DELICT (LAWS2DL) (LAWS3DL) PAGE 4 QUESTION 3 X agrees with Y that he will build Ys new home. During the building operations X is irritated by the municipal inspector and he gives him a slap in the face. The inspector sues Y vicariously. Answer the following questions: (a) Is there an employer employee relationship between X and Y for the purposes of vicarious liability? [5 marks] For the purposes of this part of the question assume that there is indeed an employer employee relationship: (i) What is the position if the inspector provoked X by slapping him first? [2 marks] Was X acting within the course and scope of his employment when he slapped the inspector? [10 marks] [17 MARKS]

(b)

(ii)

QUESTION 4 X, a qualified boilermaker, sustains serious head injuries in an accident resulting from the negligent driving of a motor vehicle by Y. In a subsequent lawsuit against the Road Accident Fund (RAF) on behalf of X, who is mentally retarded in consequence of his injuries, it appears that X has already received certain amounts from other sources in order to redress the effects of his injuries. It is urged on behalf of the defendant that such amount should be taken into account in reducing the extent of the total amount claimed on Xs behalf. Discuss the merits of this contention considering the relevant law, where the respective amounts are as follows: (a) R9 000 which represents an amount of full pay for a three-month period, to which X is entitled as a sickpay benefit in terms of his contract of employment; [2 marks] R5 000 which X received additionally from his employer as a discretionary sick-pay benefit; [4 marks]

(b)

Continued

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 DELICT (LAWS2DL) (LAWS3DL) PAGE 5 QUESTION 4 (Contd) (c) R15 000 which X received from his employer in a single payment as a pension benefit, as well as the prospect of receiving a R1 000 monthly pension payment until his death in terms of his contract of employment; [3 marks] R12 000 which X received from his former employer subsequent to termination of his employment, after the firm had on the grounds of pure sympathy employed him again for a period of one year, in spite of the fact that he was utterly incompetent to perform any constructive work during that period and for the greater part of it remained at home [4 marks] [13 MARKS]

(d)

TOTAL FOR SECTION A: [70 MARKS]

Section B

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 DELICT (LAWS2DL) (LAWS3DL) PAGE 6 SECTION B USE A SEPARATE ANSWER BOOK ANSWER EITHER QUESTION 5 OR QUESTION 6 IN RELATION TO THE FOLLOWING GIVEN FACTS: The front page of the Sunday Crimes, a national newspaper, contains a story about the Minister of Health, Dr Bee Troot, under the headline: Unhealthy Minister a Drunk and a Thief. The story reveals the following: When she was a patient in a private hospital some two years earlier, Dr Troot washed down medication with wine and whiskey; threw drunken tantrums, screaming at nurses and disturbing other patients; sent hospital staff out late at night to go hunting for extra bottles of hooch in the seedy parts of the city. Her medical record shows that at that time she already had a liver complaint caused by alcohol abuse. A year later she had a liver transplant, yet at home or whenever out of public view, she secretly continues to consume alcohol liberally on the new liver. Some 32 years previously, whilst serving as an intern at a hospital in Lesotho, she had been found guilty of theft from a patient who was under anaesthetic at the time.

Elsewhere in the same Sunday Crimes, a regular commentator, Eish Donald, writes: Dr Babalastig Troot should have been dismissed from her job long ago. The latest revelations in this newspaper confirm that this woman is basically unfit to be a Minister of Health.
EITHER:

QUESTION 5 Dr Troot is threatening to sue the Sunday Crimes and Eish Donald for defamation. Advise them of her chances of success in such an action, including, in your advice, a consideration of the defences that they might successfully raise to such an action. The editor of the Sunday Crimes tells you that he is concerned that doctors who have studied the medical record now say it might not have been entirely accurate to claim that Dr Troots liver complaint was caused by alcohol abuse. [30 marks]
OR:

QUESTION 6 Dr Troot wishes to know whether she could successfully sue the Sunday Crimes for invasion of privacy in relation to any of the revelations contained in the above report. She would also like to sue the newspaper reporter who gathered the relevant information. Advise her fully, explaining the relevant law, including the defences that might be raised. [30 marks] TOTAL FOR SECTION B: [30 MARKS]