A critical analysis of the Apportionment of Damages Act 34 of 1956 in South Africa Law

Abstract

Where a party wrongfully suffers harm due to the negligent conduct of another, that harm is repaired through the payment of damages. In terms of the principle res perit domino, it is however a fundamental principle of the law of delict that a person should bear the loss he suffers. It stands to reason that where he contributes to his damages by his own negligent conduct, this should be taken into account and his damages reduced accordingly. The legal position regarding contributory negligence and the effect on recovery of damages, is governed by the Apportionment of Damages Act 34 of 1956. The relevance of the Act is often considered when dealing with the issue of liability; however, it ultimately effects the quantum of a damages award. This is not to say that the apportionment of liability will or should mirror the extent to which the damages are apportioned. In certain cases, damages may be further apportioned to account for other factors. In practice, the Act is often exercised incorrectly and differently from case to case, due to varying interpretations and approaches to underlying principles. The Act does not define concepts fundamental thereto nor does it prescribe an approach to determine the reduction of a party’s damages. Specifically the meaning of fault in the Act, whether this fault relates to the damage or damage-causing event, as well as how this fault should be measured and applied to the facts of each case have been interpreted and applied inconsistently. The highlight the various scenaria that have appeared in the practical application of the Act to claims arising out of delict and specifically, motor vehicle collisions. Through practical illustrations and case law, one can deliberate on the factors to be considered when a particular approach is adopted. It is ultimately necessary to determine whether the Act can be applied effectively and fairly, by adopting a single approach, or whether the law has to be revised. If the Act were to be reviewed, the extent to which negligent conduct is to be applied as well as how this is to be assessed should be clarified. It is necessary for courts to bear in mind that a person’s conduct as it is causally linked to harm, should be apportioned and a separate enquiry to extent to which harm is exacerbated by contributory negligence should be done. Mere negligent conduct is not sufficient – it must be linked to increased harm. As it stands, he approach followed in the Jones case provides for a definable formula in which the parties’ conduct as it relates to the harm are assessed separately and then compared. If the comparative approach can be enforced, uniformity will be achieved and the uncertainty of discretionary application can be eliminated, even if the Act is not redrafted. If legal practitioners are able to clearly make this distinction and apportion the parts to which a claimant’s actions are related, the purpose of the Act can be achieved.