INTRODUCTION

This brochure sets out the basic concepts of the Apportionment of Damages Act No. 34 of 1956 (the 'ACT') with the attention being focused on the relevant calculations in respect of apportionment. However, as a starting point, the reason for the ACT coming into existence is discussed.

The ACT was brought in to amend our common law position in respect of contributory negligence. Before the ACT came into existence, the 'all or nothing' principle was applicable in South Africa. This principle can briefly be explained as follows:

'Where the negligence of two persons contributed to the causing of a particular result, and one or both parties suffered damages as a result, neither party could institute an action unless the negligence of one of the parties was the decisive cause of the accident. In such an event, the negligence of the other party was completely ignored and he could succeed in full with his claim. In order to determine whose negligence was the decisive cause of the accident, the courts looked at who had the last opportunity of avoiding the accident.'

The 'all or nothing' principle clearly resulted in unfair decisions being made and the legislature had no alternative but to intervene.

PROVISIONS OF THE ACT

There are three chapters in the ACT, the two most important deal with the apportionment of liability in the case of contributory negligence and for proceedings against joint and several wrongdoers.

A distinction of the two follows hereunder:

  • Contributory Negligence
    Contributory negligence arises where a person suffers damage and such damage is caused partly by his own fault and partly by the fault of a third party.
  • Joint or several wrongdoers
    The concept of joint or several wrongdoers arises when it is alleged that two or more persons are jointly or severally liable to a third party for the same damage.

Below follows a discussion in respect of both contributory negligence and joint or several wrongdoers.

CONTRIBUTORY NEGLIGENCE

HOW ARE DAMAGES APPORTIONED?

The criterion our courts use to apportion damages is the reasonable man test, and in particular one looks at how far a person deviates from the standard of care which applies to all persons in a community.

The method that is used to determine who should bear which portion of the damage involves a comparison of the respective degrees of negligence of the parties. Each party's degree of negligence is determined by expressing his deviation from the standard of the reasonable man as a percentage. The two percentages are then compared to see for which portion of the damages each party is liable.

CALCULATION OF APPORTIONMENT OF DAMAGES IN RESPECT OF CONTRIBUTORY NEGLIGENCE

This is again unfortunately one of those situations where the current legal position is uncertain. There is case law to the effect that once a Plaintiff's degree of negligence has been ascertained it is unnecessary to enquire as to the extent of the Defendant's negligence, which will automatically be imputed to him. The best way to illustrate the above is by way of a simple example. If the court finds that the Plaintiff was 25 % negligent, it will automatically follow that the Defendant would be 75 % negligent.

Another approach that has been followed is that the Plaintiff's negligence does not automatically determine the Defendant's degree of negligence. Using this approach necessarily means that the conduct of each party must be considered separately and a decision as to each party's degree of negligence is then decided upon separately. For instance, this may mean that the Plaintiff may be found to be 60 % negligent and the Defendant 70 % negligent. To calculate the party's degrees of negligence, one would then look at the ratio between the Plaintiff and the Defendants' negligence. In the present example this ratio would be 60 : 70 (or 6 : 7 13)). The Plaintiff's degree of negligence would thus be 6/13 x 100 = 46,15 %. The Defendant's degree of negligence would be 7/13 x 100 = 53,85 %.

However, looking at case law, it appears as though the first approach seems to be the most favourable with the Courts. Using this approach, an illustration follows hereunder setting out how the damages are apportioned:

Plaintiff's claim R50 000.00
Defendant's Counterclaim R40 000.00
Plaintiff's negligence 30 %
Defendant's negligence 70 %

The Defendant would accordingly be liable to the Plaintiff for 70 % of his claim and the Plaintiff would be liable to the Defendant for 30 % of his claim.

70 % of R50 000.00 = R35 000.00
30 % of R40 000.00 = R12 000.00

The difference between the above two
amounts is R23 000.00.

This in effect would mean that the Defendant would be liable to the Plaintiff for R23 000.00.

PRESCRIPTION

Where a claim has been instituted by a Plaintiff and the Defendant institutes a counterclaim together with a successful special Plea based on prescription, the Defendant will not be able to claim the damages he has suffered from the Plaintiff based on the principle of contributory negligence. His claim will also be regarded as prescribed.

JOINT OR SEVERAL WRONGDOERS

CALCULATION OF APPORTIONMENT OF DAMAGES IN RESPECT OF JOINT WRONGDOERS

Again, with regard to joint wrongdoers, damages can be apportioned by a court based on their respective degrees of negligence. A court will, however, only apportion damages if it is satisfied that all the wrongdoers have been joined in the action. Should the damages indeed be apportioned, the joint wrongdoers will then be liable to the Plaintiff for their duly apportioned share of the Plaintiff's damages. To illustrate the above, an example follows hereunder:
Plaintiff's claim R100 000.00
Joint wrongdoer 1 30 % negligent
Joint wrongdoer 2 60 % negligent
Joint wrongdoer 3 10 % negligent
The joint wrongdoers will be liable for R30 000,00, R60 000,00 and R10 000,00 of the Plaintiff's claim respectively.

However, should one of the joint wrongdoers not be able to pay the Plaintiff of his portion of the damages, Plaintiff may recover such portion from the other joint wrongdoers.

Where a court is not sure that all the joint wrongdoers have been joined in an action, the court will order that judgment be given in favour of the Plaintiff against the wrongdoers jointly and severally, the one paying the other to be absolved. In such circumstances, one of the joint wrongdoers may ask the court to apportion the damages payable by the joint wrongdoers. Such an apportionment will only be effective amongst the joint wrongdoers themselves and will have no effect on the Plaintiff. The Plaintiff can accordingly execute or obtain payment from any of the joint wrongdoers in any proportion.

A joint wrongdoer may also, if judgment has been given against him, and such judgment has been paid in full, recover from another joint wrongdoer a contribution based on such wrongdoers responsibility for the damages suffered by the Plaintiff. This occurs when a Plaintiff sues only one joint wrongdoer when there are other joint wrongdoers as well.

SECTION 2(2)(a) & (b) NOTICES

Notice of any action may at any time before the close of pleadings in that action be given by the Plaintiff (Section 2(2)(a) notice) or by any joint wrongdoer who is sued in the action (Section 2(2)(b) notice) to any other joint wrongdoer not sued in the action, and such other joint wrongdoer may then intervene as a Defendant in that action.

The notice is served by registered mail. The notice should inform the joint wrongdoer of the Plaintiff's action and all the pleadings filed up to the date of the notice should be annexed. The notice should also advise the joint wrongdoer of the options available to him.

IMPORTANCE OF SECTION 2(2)(a) & (b) NOTICES

If a Plaintiff does not a give a Section 2(2)(a) notice, he may not then later sue a joint wrongdoer that is not party to the action without the leave of the court and on good cause shown as to why notice was not given. This could severely prejudice a Plaintiff should he wish to recover his damages and the joint wrongdoers who have been sued are 'men of straw'.

Further, should neither a Section 2(2)(a) or Section 2(2)(b) notice be given to a joint wrongdoer who has not been sued by the Plaintiff, the other joint wrongdoers will not be able to claim a contribution from him except with leave of the court and once again on good cause shown us to why notice was not given.

COST ORDERS SHOULD A JOINT WRONGDOER BE SUCCESSFUL

If judgment is given in favour of the joint wrongdoers the court may make any costs order as it deems just including an order that the Plaintiff pay the successful joint wrongdoer's costs or that the unsuccessful joint wrongdoer pay the costs of the successful joint wrongdoer.

EFFECT OF THE ACT IN RESPECT OF MARRIAGES IN COMMUNITY OF PROPERTY

Before the apportionment of Damages Amendment Act No. 58 of 1971, a person married in community of property to a Plaintiff could not be regarded as a joint wrongdoer in respect of any damages suffered by the Plaintiff.
This will best be illustrated by way of example. A is married to B in community of property. A drives a vehicle belonging to the joint estate and collides with C. B then sues C for the damages he has incurred. C would not be able to join A as a joint wrongdoer and would be liable for all of the damages. This is obviously an untenable situation. It is for this reason that A can now be regarded as a joint wrongdoer.

EXTINCTIVE PRESCRIPTION IN RESPECT OF A CLAIM FOR CONTRIBUTIONS

The period of prescription is either 12 months from the date of judgment in respect of which a contribution is sought, or if such a judgment is appealed, 12 months from the date of final judgment on appeal.