University of Johannesburg
Browse

Enkele gedagtes oor die grondslag van deliktuele aanspreeklikheid

educational resource
posted on 2024-11-18, 16:06 authored by Inaugural addresses
Inaugural lecture--Faculty of Law, Rand Afrikaans University, 22 August 1969@@The development of the basis of the law of delict has centred around the search for a balance between two fundamental human interests, viz. interest in freedom of action and interest in security. Primitive law based liability on causality; hence there was an over-emphasis on the security interest of the individual and group. By a gradual process of development over centuries the emphasis shifted to the interest of freedom. This culminated in the dogmatic axiom of the nineteenth century, viz. no liability without fault. Since the latter part of the last century there has been a progressive erosion of the fault principle by means of legal fictions and reversal of the onus of proof. The technological revolution of the past seven and more decades has clearly demonstrated the inadequacy of the fault principle as the sole basis of delictual liability. The high risk of injury, the increased extent of damage, the difficulty of proving fault, and the economic success of the industrial revolution have led to the emergence of a new principle, viz. risk or strict liability. In view of the emergence of two apparently conflicting and independent principles of delictual liability, viz. fault and risk, the most fundamental dogmatic problem of the law of delict is the question as to the common basis of delictual liability. It is suggested that the common basis is creation of an extraordinary risk of injury. In the case of fault liability the risk is created by the unreasonable (negligent) conduct of the actor; in the case of strict liability, by the inherently dangerous nature of the reasonable (non-negligent) conduct. Delictual liability, therefore, attaches where damage has been wrongfully caused by the creation of a substantial risk, either through fault (fault liability) or by the inherently hazardous nature of the activity which has a priori been designated as such (risk or strict liability).

History

Date of creation

2009-03-31

Date submitted to repository

1969-08-22

Copyright information

University of Johannesburg

Original repository

Vital

Language Translation

Thoughts on the basis of delictual liability

Repository

Special Collections

Collection/Group

Inaugural addresses

Sub collection

1005|RAU Inaugural Addresses

Type of material

Inaugural

Research purpose

Teaching lecture

Legacy Handle

10210/2322

Usage metrics

    Inaugural addresses

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC