Damage Article

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Appeal 13/2001], Hanaffi v. Nallamma (1998) 1 Sri LR 73). 0 "R

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[if] the community would be so offended by a policeman's failure to live up to its expectations

(which are based partly on statute and partly on what people see policemen doing every day)

that it would demand compensation for a victim w h o suffered a loss because of such failure,

then the policeman is liable. MINISTER OF LAW AND ORDER v. A M KADIR [1994]

ZASCA 138; 1995 (1) SA 303 (AD); [1995] 1 All SA 457 (A)

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conduct is invoked in support of the existence of a legal duty, such conduct must obviously be

properly pleaded. MINISTER OF LAW AND ORDER v. A M KADIR.

Silvas Fishing Corporation v. Maweza

1957 (2) SA 256 (A) P. > Oh I >.

The appellant company owned fishing vessels and hired out one of them for a fishing

expedition on terms that the company would receive 6s. out of every 1 in value of the fish that

were caught. The vessel got into difficulties when its engine failed. The company became

aware that the vessel was in distress but took no action to go to its aid or to try to effect a rescue

and, after drifting for some days with its engine out of action, the vessel sank and the crew were

drowned. The widow of one of the crew brought a damages action alleging that the company

was in breach of its duty of care to the crew members. There was no allegation that the vessel

was in any way unseaworthy or that the engine was defective in any respect (see at 257 C), and

the duty, if there was one, was delictual not contractual. The defence was that the company

owed no delictual duty. Schreiner JA said (at 260) that no liability in delict arises from

mere omission (see also at 261 A to D) and then examined the circumstances of the case in

order to answer the question whether the duty contended for, a duty to try and effect a rescue,

had been cast on the company. Two features of the case persuaded Schreiner JA that that duty

had been cast on the company. First, the drifting boat belonged to the company and, second, the

members of the crew were not merely users of the companys boat but were taking part with

the [company] in a profit making enterprise (p.260 C) that involved the use of the boat. It

followed, held the judge, that the company owed them a duty to provide them with a boat that

would take them safely to and from the fishing grounds and had not only a moral but a

legal duty to provide adequate alternative means of propulsion or suitable means of rescuing the

crew of a drifting boat or both (262 H). [Mitchell (AP) and another (Original Respondents and

Cross-appellants) v Glasgow City Council (Original Appellant and Cross-respondents)

(Scotland) [2009] UKHL 11]

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The maxim in English law presupposes a tortious act by the defendant. The consent that is

relevant is not consent to the risk of injury but consent to the lack of reasonable care that may

produce that risk . . and requires on the part of the plaintiff at the time at which he gives his

consent full knowledge of the nature and extent of the risk that he ran. A spectator has a

special relationship with a competitor which varied with the nature and rules of the sport. A

spectator accepted the risk of injury following mistakes of judgement and from lack of skill by

and in competitors, up to the point where a participant showed a reckless disregard for his

safety, or acted in a way calculated to risk injury. [Wooldridge v Sumner [1963] 2 QB 43]

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[(a) a diligens paterfamilias in the position of the defendant

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.]{Kruger v Coetzee 1966 (2) SA 428 (A) at 430}

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Although a beginner must take precautions to minimize risks arising from his lack of skill and

experience, one cannot generally require of him the skill and care of a reasonably proficient and

experienced practitioner. It seems therefore, for example, equitable not to expect of a novice to

the game of golf the skill of a reasonably experienced player. If, however, the beginners lack

of skill generally exposes the public to an appreciable risk of serious harm, it seems that no

allowance can be made for his lack of proficiency and experience. Thus an inexperienced

doctor cannot rely on his lack of knowledge and experience. Similarly an inexperienced driver

of a car is required to exhibit a reasonable degree of skill, that is to say, such proficiency as an

ordinary qualified and experienced driver would exhibit in the circumstance. [Delict:

Principles and Cases 71]

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Murray v. Union and South West Africa Insurance Co Ltd 1979 (2) SA 825, Re Polemis (1921) 3 KB

560, The Wagon Mound (1961) AC 388 (PC).



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Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), Daniels v.

General Accident Insurance Co Ltd 1992 (1) SA 757 (C) .

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possible consequences if the risk of harm materializes; (c) the utility of the actor's conduct; and (d) the

burden of eliminating the risk of harm."

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Bolton v. Stone [1951]1 All ER 1078 [HL] p l "J J >.

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res ipsa loquitur (the incident speaks for itself) 0. I P.

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When a person gets injured due to a vehicle deliberately running into a person, it is prima-facie proof

of the negligence of the driver. Only if the driver could prove contributory negligence on the part of the

Respondent, the damages could be reduced or vitiated. [Krishnan Nalinda Priyadarshana v Kandana

Arachchcige Nilmini Dhammika Perera (SC. Appeal 67/2012 decided on 14.06.2013)]

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, Jones NO v Santam Bpk 1965 (2) SA 542 (A) . ,

AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A),

A Court must deal broadly with the problem of apportionment and in considering what is just and

equitable must have regard to the blameworthiness of each party, but "the claimant's" share in the

responsibility for the damage cannot, I think, be assessed with -

out considering the relative importance of his acts in causing the damage

apart from his blameworthiness. - [Stapley v Gypsum Mines [1953] AC 663 at 682]

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" Prof Priyani Soyza v. Rienzie Arsecularatne (2001) 2 Sri

LR 293 .

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, McWilliams v Sir William Arrol Co Ltd [1962] 1 All ER 623,

Kgobane & another v Minister of Justice & another [1969] 3 ALL SA 379 .

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In our law, under the lex Aquilia, the defendant must make good the difference between the

value of the plaintiff's estate after the commission of the delict and the value it would have

had if the delict had not been committed. The capacity to earn money is considered to be part

of a person's estate and the loss or impairment of that capacity constitutes a loss, if such loss



diminishes the estate. This was the approach in Union Government (Minister of Railways and

Harbours) v Warneke 1911 AD 657 at 665 where the following appears:

"In later Roman law property came to mean the universitas of the plaintiff's rights and duties,

and the object of the action was to recover the difference between the universitas as it was after

the act of damage, and as it would have been if the act had not been committed (Greuber at

269). Any element of attachment or affection for the thing damaged was rigorously excluded.

And this principle was fully recognised by the law of Holland."

See also Union and National Insurance Co Ltd v Coetzee 1970 (1) SA 295 (A) where damages

were claimed and allowed by reason of impairment of earning capacity.

Rudman v Road Accident Fund (370/01) [2002] ZASCA 129; [2002] 4 All SA 422 (SCA)

Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 0

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- The damages under the

second lead cannot be assessed on any arithmetical or logical basis. There are no scales by which pain

and suffering can be measured, and there is no relationship between pain and money which makes it

possible to express the one in terms of the owner with any approach to certainty. The usual method

adopted is to take all the circumstances into consideration and award substantially an arbitrary sum.

h f "R . % Jayakody v. Jayasuriya (2005) 1

Sri LR 216 .

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Commission v Gourley [1955] UKHL 4, Billingham v. Hughes ([1949] 1 K.B. page 643, Whitfield v Phillips and Another, 1957 (3) SA 318 (A) ".

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Baker v Willoughby [1969] UKHL 8 P. >



what may be called a "devaluation" of the plaintiff, in the sense that it

produced a general reduction of his capacity to do things, to earn money and

to enjoy life. For that devaluation the original tortfeasor should be and

remain responsible to the full extent, unless before the assessment of the

damages something has happened which either diminishes the devaluation

(e.g. if there is an unexpected recovery from some of the adverse effects of

the accident) or by shortening the expectation of life diminishes the period

over which the plaintiff will suffer from the devaluation. If the supervening

event is a tort, the second tortfeasor should be responsible for the additional

devaluation caused by him.

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At one time the law was that unforeseeability was no defence (Re polemis and Furness Whithy & Co.

Ltd. (42), but the law now is that there is no liability unless the damage is of a kind which is

foreseeable. The Wagon Mound No. 1 (supra). The liability for damage today is thus based on the

concept of foreseeability. The damage should have been foreseen by a reasonable man as being

something of which there was a real risk, unless the risk was so small that the reasonable man would

feel justified in neglecting it.

Although in the law of Negligence the duty to take reasonable care was confined to reasonable,

foreseeable dangers, the fact that the danger that actually materialised was not identical with the danger



reasonably foreseeable did not necessarily result in liability not arising. The Wagon Mound case (No.

1) seeks only to bar recovery of an unforseeable type of damage. If the damage be of a type that is

foreseeable, then recovery is still available, even if the degree of damage is unforeseeable or if the

precise manner in which the damage occurs is unforeseeable. Even if the plaintiff proves every other

element in tortious liability he will lose his action if the harm which he has suffered is too remote a

consequence of the defendant's conduct. Damage may be too remote because it is not in the view of the

law caused by the wrong.

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" Krishnan Nalinda Priyadarshana v Kandana Arachchcige Nilmini Dhammika Perera (SC. Appeal No. 67/2012 decided on 2013.06.13) . > -. 4 p -L f



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"l J " " P (Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 (3) SA 643 (D).

4 p { ", K v Minister of Safety and Security (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) ; [2005] 8 BLLR 749 (CC)

( litis contastatio, 41 '( E "J { .)

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