PVL3703 EXAM SOLUTIONS.

SOLUTION TO MAY/JUNE 2012 EXAM SECTION A Multiple Choice 1. - 1 2. - 2 3. - 5 4. - 3 5. - 2 6. - 2 7. - 2 8. - 1 9. - 2 10.- 5 11.- 4 (even though animal –it’s used as instrument by human act) 12.- 5 13.- 4 14.- 1 15.- 2 SECTION B Question 1 1.1. Intent is present if the Defendant’s will is directed at a result which he causes whilst conscious of the wrongfulness of his conduct. 1.2. The BONIS MORES Test – legal convictions of the community. 1.3. Unlawful infringement of an interest. 1.4. (a) the Defendant will not be able to succeed with a defence of contributory negligence. 1.4. (b) the apportionment of damages Act of 1956 was introduced to deal with a situation of contributory negligence (and hence reverse the “last opportunity” Rule). In terms of the Act, when both the PVL3703 EXAM SOLUTIONS. Page 2 Plaintiff and Defendant are negligent the Court will apportion the damage of each party in accordance with their respective degrees of fault. The criterion used to apportion damages is the Reasonable person test for Negligence. Authority for this is found in South British Insurance Company Limited v Smit and in Jones v Santam Bpk. If there is contributory negligence, the Defendant can successfully rely on raising contributory negligence. However, the Court may take contributory negligence into account even if the Defendant does not raise same in his Pleadings. 1.5. (a) 1. the Defendant must be the owner of the animal when the damage is inflicted. 2. The animal must be a domestic animal. 3. The animal must act contra naturam sui generis and from inward Excitement or vice. 4. The prejudiced person/his property must be lawfully present at the location. 1.5.(b) 1. There must be an employer – employee relationship at the time when the Delict is committed. 2. The employee must commit a Delict 1. The employee must act within the course and scope of his employment when the Delict is committed. Question 2 2.(a) An “act” in Delict is defined as “a voluntary human act or omission”. A human act is only “conduct” if it is performed voluntarily, that is, susceptible to control by the will of the person involved. The defence to a “voluntary act” is automatism i.e. the wrongdoer claims he acted mechanically. The Plaintiff bears the onus to prove