CHAPTER 14 - DEFENCES

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Authority

This takes two forms. The authority can derive from common law or, more usually, from statute.

 

Under common law, just about the only recognised situation where harm may be inflicted without delictual consequences is where parents or guardians inflict moderate corporal punishment upon their children for disciplinary purposes. The law recognises that parents are legally entitled to inflict such punishment. As regards corporal punishment in schools, this is subject to legislative control and, for instance, no corporal punishment may be inflicted upon female pupils. Doubt was cast on the legality of corporal punishment in schools as a result of the judgment by Dumbutshena CJ in the constitutional case on juvenile whipping S v A Juvenile 1989 (2) ZLR 61 (S). However, the Constitution was amended and it now provides in s 15 that the infliction of moderate corporal punishment will not be held to violate the right to protection against inhuman or degrading punishment or treatment:

  • in appropriate circumstances upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis or in whom are vested any of the powers of his parent or guardian; or
  • in execution of the judgment or order of a court, upon a male person under the age of eighteen years as a penalty for breach of any law.

 

Parents, guardians and schoolteachers are legally authorised to inflict moderate corporal chastisement upon children in their care. In terms of the Education (Disciplinary Powers) Regulations, SI 298 of 1990, which relate to both Government and private schools, only headmasters and deputy headmasters are permitted to inflict corporal punishment and this punishment may only be inflicted on schoolboys; schoolgirls may not be so punished.

 

In Mahomed v Silanda & Anor HH-281-91 a teacher severely assaulted a young pupil with a stick. The assault was unlawful and the regulations relating to the administration of corporal punishment were not complied with. In S v Mangwarira S-194-88 a student teacher, was convicted of assault after she had caned a pupil. She admitted during her trial that she knew that only the headmaster was allowed to administer strokes.

 

Husbands have no legally recognised right to chastise their wives. Such chastisement constitutes an assault.

 

Regarding statutory authority, a distinction must be made between where the statute is directory and where it is merely permissive. If an authority is directed to do a certain thing, the authority cannot be held delictually liable if it does the very thing it was directed to do in the manner authorised. Where the authority is only permissive the courts have to decide what was intended by the Legislature and to what extent interference with rights was intended. In more general terms, if a body or individual was authorised by legislation to do a certain thing it will not be delictually liable, provided that the act fell within the power given and provided that the act was done without negligence. Immunities may also be contained in legislation whereby no compensation is payable for negligent infliction of harm.

 

Necessity

The requirements for this defence are:

  • A legal interest must have been endangered;
  • The threat to that legal interest must have commenced or be imminent;
  • The threat must not have been caused by D’s own fault;
  • The action must be necessary to avert the threat; and
  • The means used to avert the threat must be reasonable.

 

The defence covers situations other than those encompassed by private defence (i.e. it does not cover cases of defence of person and property against an assailant). In situations of necessity, D inflicts harm upon the person or property of an innocent third party to avoid greater harm to the person or property of himself or another. As harm is caused in these sorts of cases to an innocent third party the defence is only allowed to succeed very sparingly. An example of where the defence would be likely to succeed is where, for instance, D, in order to avoid a collision with a young child who has suddenly stepped onto the road, mounts the pavement and damages property such as a shop window or a stall on the pavement.

 

See S v Ndlovu HB-31-84.

 

Where D kills an animal belonging to P to prevent the animal from injuring him or damaging his property, the defence of necessity would have to be raised as private defence only applies to attacks by human persons.

 

Private defence

The requirements for this defence are:

  • There must be an unlawful attack;
  • The attack must be on D, a third party or the D’s property;
  • The attack must have commenced or be imminent;
  • D’s defensive action must have been necessary to avert the attack; and
  • The means used to avert the attack must be reasonable.

 

In Kgaleng v Minister of Safety and Security & Anor 2001 (4) SA 854 (W) D pleaded the defence of self-defence. As objectively D was not in danger the defence failed. However, D was nevertheless able to escape liability on the basis thathe had a bona fide, though erroneous, belief that his conduct was justified. This excluded consciousness of wrongfulness and thus excluded fault in form of dolus and provided that a reasonable person would not have reacted differently in D’s circumstances this would also have excluded  fault in form ofculpa.

 

As regards the defence of self-defence see Mabaso v Felix 1981 (3) SA 865 (A).

 

Provocation

Provocation may sometimes justify the action taken.

 

The provocation must be of such a nature that it can be considered as a reasonable response.

The action taken must immediately be in response to the provocation and action taken must be reasonable in proportion to the provocation offered.

 

In Dzvairo v Mudoti 1973 RLR 166; 1973 (3) SA 287 (RA) there was an unprovoked attack upon D by P punching him. D retaliated by striking a single blow upon P. Provocation acted as a full defence.

 

See also Mordt v Smith 1968 (2) RLR 330; 1968 (4) SA 750 (RA) provocation had not been established in this case; Powell v Jonker 1959 (4) SA 443 (T) and Wessels v Pretorius, NO en 'n Ander1974 (3) SA 299 (NC).

 

Voluntary assumption of risk

General

In our law it is recognised that in certain circumstances the defence of voluntary assumption or risk (volenti non fit injuria - he who voluntarily exercises his will suffers no injury) will operate as a total defence to an action brought by P thereby precluding him from recovering any damages. The theory underlying this defence is basically that if a person, knowing of the full nature and extent of the risks involved in an enterprise, voluntarily goes into that enterprise, thereby freely assuming or undertaking the risk of injury to himself, he should not be able to sue for his injuries. Thus, even if D was negligent, under this defence P would be debarred from recovering damages from D as he is held to have voluntarily assumed the risk of such injury.

 

In Lampert v Hefer NO 1955 (2) SA 507 (A) a passenger was aware that the motor cyclist with whom he was riding was under the influence of alcohol. The defence of volenti succeeded as a full defence.

 

It was pointed out in the case of Maartens v Pope 1992 (4) SA 883 (N) that for the defence of voluntary assumption of risk to apply, the risk must not be a mere fanciful or abstract risk but must be a real one inherent in situation and the P assumed that risk.

 

The tendency in many countries has been to confine this defence within extremely narrow limits. Indeed, in some countries the defence has been totally abolished in favour of dealing with these situations under the law relating to contributory or comparative negligence.

 

In Zimbabwe, there is no leading case authority that lays down definitively the scope of this defence. In South Africa, the courts have rejected the narrow so-called “bargain” or bilateral agreement approach to this defence in favour of the more extensive voluntary assumption of risk approach. The basic difference between these two approaches is as follows: With the “bargain” approach, nothing less than an advance communication leading to an express or implied agreement between the parties is required whereunder P agreed to waive or give up his legal right to claim in respect of that type of harm. (This pre-supposes that P had full knowledge and appreciation of the nature and extent of the risk involved.) On the other hand, the voluntary assumption of risk approach does not require that P must have agreed in advance of the enterprise to surrender his right to sue in the event of his being injured; all that is required is that P, having full knowledge and appreciation of the nature and extent of the risk involved in an enterprise, nonetheless voluntarily goes into the enterprise thereby assuming the risk of injury. For example, if P, knowing that D was very badly drunk and incapable of driving his car properly, accepts a lift in D’s car and is injured in an accident caused by D’s drunken condition, P would be debarred from recovering under the voluntary assumption of risk approach. (But not under the “bargain” approach, as there had been no agreement whereunder P agrees to waive his legal rights to claim against D in the event of an accident occurring.)

 

Even though South Africa has adopted the wider voluntary assumption of risk approach, the defence is still a difficult defence to raise successfully because of its requirements. It only applies where P, having full knowledge and appreciation of the nature and extent of the risks involved in an enterprise, nonetheless enters the enterprise thereby indicating that he is prepared to undergo those risks. In the leading South African case of Santam Insurance Co v Vorster 1973 (4) SA 764 (A), it was laid down if P had subjectively foreseen the risk of injury to himself, this would “ordinarily” suffice as consent thereby debarring P from recovering damages. It went on to refer to the practical difficulties of establishing subjective foresight, given the fact that direct evidence of this was infrequently available and P would be likely to deny subjective foresight.

 

In order to overcome these difficulties, the court said that a two-stage approach should be adopted. First, the question should be asked as to what objectively were the inherent risks of the hazardous activity in question. Second, having determined what objectively were the inherent risks, the subjective test was then to be applied and the court had to make a factual finding as to where P, despite protestations to the contrary, must have foreseen the particular risk which caused his injuries (that being an objectively inherent risk) and thus whether he will be held to have consented to undergo that risk.

 

Under the voluntary assumption of risk approach towards this defence, there are certain further limiting features arising out of the requirement that the assumption of risk must be voluntary. In two situations P will be acting under an obligation or constraint such that it cannot be said that his conduct was voluntary. The first situation is the rescue situation. An example of this is where D negligently leaves a horse unattended and unrestrained and it bolts. If P is injured in the process of trying to stop the horse trampling a child directly in its path, it cannot be said that P was acting freely as he was under a moral obligation to prevent injury to the child. The second situation is where an employee (who is not employed to do inherently dangerous work such as a steeplejack or a fireman) has to undergo a certain danger negligently created by the employer or his foreman. The general approach adopted here is that even if the employee is fully aware of the danger and continues work or continues under protest, the defence of voluntary assumption of risk will not apply against him. This is because it will be accepted by the courts that the employee was under economic constraint, namely, that if he did not obey the order to do the work or did not assume the risk he might be sacked and therefore in undergoing the work he was not acting freely.

 

See Mutandiro v Mbulawa HH-354-84 (passenger was aware that the driver he got a lift with was under influence of alcohol); Santam Insurance v Vorster 1973 (4) SA 764 (A) (A race between two cars on an ordinary road resulted in one of the cars overturning. P who was a passenger in the vehicle that overturned sustained very serious injuries); Mathee & Anor vHarz 1983 (2) SA 595 (W) (P knowing that D was not licenced to drive volenti did not apply); Boshoff v Boshoff 1987 (2) SA 694 (O) (Harm arising out of playing of sport); Labuschagne v Cloete 1987 (3) SA 638 (T) (Liability of owner of car for negligence of driver); Dann v Hamilton [1939] 1 All ER 59 (KB) (Drunk driver); AshtonvTurner & Anor [1980] 3 All ER 870 (QB) (Drunk driver in course of a criminal enterprise). See also Withers v Perry Chain Co [1961] 3 All ER 676 (CA) and Birch v Thomas [1972] 1 All ER 905 (CA).

 

With medical procedures that result in harm being caused to patients, consent can be a defence but only if the nature of the procedure and its risks has been properly explained to the patient before obtaining the consent of the patient. See Stoffberg v Elliott 1923 CPD 148; Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T); and Chatterton v Gerson [1981] 1 All ER 257 (QB).

 

In S v Chipinge Rural Council 1988 (2) ZLR 275 (S) the court decided that young children do not have the capacity to assume risks so as to be covered by volenti.

 

For a case of perils encountered by persons trying to rescue persons in danger see Haynes v Harwood [1935] 1 KB 146; 152 LT 121.

Which test should Zimbabwe adopt?

In due course, the Zimbabwean courts will have to work out the principles that will apply in respect of the defence of volenti non fit injuria generally. The policy considerations will have to be fully considered before decisions are made. Three options present themselves, namely:

  • to adopt the “voluntary assumption of risk” approach; or
  • to adopt the narrower “bargain” approach; or
  • to abolish the defence entirely and deal with all such cases by apportioning liability by using our legislation on contributory negligence.

 

It can be strongly argued that because the “all or nothing” approach which applies whenthis defence is allowed to debar a claim is inequitable, the defence should be severely limited and that most cases should be dealt with under the more equitable principles of apportionment. This could be achieved by the adoption of the “bargain” basis liability. We could go even further and entirely abolish this defence and deal with all cases under the apportionment legislation.

 

Intentional infliction of harm

So far, only cases where D has negligently inflicted harm have been dealt with. Situations where D intentionally inflicts harm will now be examined. The type of case with which we are concerned here is where a medical practitioner intentionally inflicts harm (e.g. by surgery) for therapeutic purposes. (Non-therapeutic medical experimentation will not be dealt with.) The starting point in this regard is the rule that any medical procedure is prima facie an assault (in criminal law and delict), unless the patient has freely consented to having that procedure carried out upon himself by the medical practitioner. Except in emergencies and in cases where the patient is incapable of consenting and substitutionary consent from someone else is allowed by the law (e.g. parents of a young child, the curator of an insane person, etc.), the medical practitioner is obliged to recognise that the patient is a free agent who has a right to choose whether or not to receive the treatment. Consequently, the medical practitioner is obliged to disclose the nature and extent of risks inherent in a procedure so that the patient is able, on an informed basis, to make up his mind as to whether he wishes to undergo those risks. At the same time the law has attempted to take into account the practical difficulties that medical practitioners may face in dealing with unduly timid patients who may be scared away from receiving desperately needed treatment if the doctor discloses in gory detail the nature of the procedure and all conceivable attendant risks.

 

For further details on this aspect of consent, see Feltoe & Nyapadi Law and Medicine in Zimbabwe Chapter 2.

Dependant’s action

If X enters into an agreement which exempts D from liability from injury caused to D, this agreement will prevent a dependant from suing in the event of X dying. In Jameson’s Minors v CSAR 1908 TS 575the breadwinner was killed in a train accident caused by the negligence of the railway company. The breadwinner was a passenger who had “a free pass” which excluded liability of the railway company in these specific circumstances. The court decided that the agreement by the breadwinner was no defence against the dependant’s action.

 

It would seem that the defence of volenti should not be able to be successfully raised by Din respect of an action by a dependant for loss of support due to the death of a breadwinner, as the duty of support of the breadwinner is independent of the duty of care owed to the deceased. See Jameson’s Minors v CSAR 1908 TS 575.

 

(The position appears to be different in English law. See Salmond & Heuston The Law of Torts 19 Ed p 650.)

 

The dependant’s action would, however, fail if the deceased’s negligence was the proximate cause of his own death.

 

If the deceased has in his lifetime, in the interval between the accident and his death, accepted full compensation from D, the dependants will no longer be able to sue after his death