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The explicit and implicit influence of reasonableness on the elements of delictual liabilityAhmed, Raheel 01 1900 (has links)
Reasonableness as a concept used in determining delictual liability or liability in tort
law, is either embraced or perceived by some as frustrating. It is a normative concept
which is inextricably linked with the concepts of fairness, justice, equity, public policy
and the values of the community. These concepts assist in providing value judgements
in determining liability.
It is apparent from this study that the influence of reasonableness is predominantly
implicit on the French law of delict, but more explicit on the South African law of delict
and Anglo-American tort law. Its influence varies with respect to each element of tort
or delictual liability. In order to hold a person liable for a delict or tort, it is only
reasonable that all the elements of a delict or tort are present. Common to all the
jurisdictions studied in this thesis is the idea of striking a balance between the defendant’s interests promoted, the plaintiff’s interests adversely affected and the
interests of society. Where liability is based on fault, the reasonableness of conduct is
called into question. In respect of causation whichever test or theory is used, what must
ultimately be determined is whether according to the facts of the case, it is reasonable
to impute liability on the defendant for the factually caused consequences. Whether loss
or harm is required, assumed or not required, the question of the appropriate remedy
or compensation which is reasonable under the circumstances is called into question.
In South African and Anglo-American law, the multiple uses of the standards of the
reasonable person, reasonable foreseeability of harm, reasonable preventability of
harm, whether it is reasonable to impose an element of liability, or whether it is
reasonable to impute liability, often cause confusion and uncertainty. At times, the role
of these criteria with regard to a specific element may be valid and amplified while, at
other times, their role is diminished and controversial. However, there is nothing wrong
with the concept of reasonableness itself; indeed, it is a necessary and useful concept
in law. Rather, it is the way that it is interpreted and applied in determining liability that
is problematic. / Private Law / LL. D.
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Aspekte van berekeningsmetodes by die bepaling van verlies aan onderhoud van afhanklike kindersGrosskopf, Johann Wilhelm 06 1900 (has links)
Text in Afrikaans, abstract in Afrikaans and English / Different methods of calculation of the loss of support of minor children, are
investigated. According to one method (A), one first has to establish that the
deceased's income was not all absorbed for his/her own maintenance. Only if there
is surplus income available, it can be inferred that the deceased contributed towards
the maintenance of the minor children and that the children have suffered a loss.
According to another method (B) both parents' income are added and then divided
between the family members. The minor child's loss of support is an amount which
represent his/her share in the deceased's own income - a child automatically suffers
a loss according to this method, in the event of death of a parent.
Method B ought to be applied, because it is consistent with the reciprocal duty of support between spouses and the duty of spouses to maintain children. / Verskillende metodes om die verlies aan onderhoud van afhanklike kinders te bereken
word ondersoek. Volgens een benadering (A) moet eers vasgestel word of die
oorledene se inkomste nie alles geabsorbeer is vir sy /haar eie onderhoud nie. Slegs
indien daar surplusinkomste was, kan aanvaar word dat die oorledene bygedra het tot
die onderhoud van die minderjarige kinders en dat die kinders 'n verlies ly.
Volgens die ander benadering (B) word beide ouers se inkomste bymekaar getel en
dan tussen die gesinslede verdeel. Elke minderjarige kind se verlies aan onderhoud
is 'n bedrag wat sy/haar aandeel in die oorlede ouer se afsonderlike inkomste
verteenwoordig - 'n kind ly outomaties volgens hierdie metode 'n verlies.
Metode B behoort meestal aanwending te vind, aangesien dit in ooreenstemming is met die wederkerige onderhoudsplig tussen gades en die plig van ouers om hul kinders te onderhou. / Private Law / LL. M. (Law)
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Insurance against damage caused by pollutionKuschke, Birgit 28 February 2009 (has links)
Universally complications exist concerning insurance cover for the risks posed
by pollution damage. Environmental insurance cover can be procured under
first-party or third-party insurance. For the latter, the polluter's statutory or civil
liability is required. The determination of liability for compensation, especially
delictual liability, remains problematic.
The right to the environment in section 24 of the Constitution creates a
general duty of care. The introduction of a strict liability regime can be
recommended to alleviate the burden of proving fault and contributory
negligence. Where there is multiple or cumulative causation or the exact
identity of the polluter is unknown, potential solutions regarding the allocation
of liability include a pollution-share, joint and several, market-share or, as a
last resort, a proportional allocation. Actionable damages should include
property damage, pure economic loss, clean-up costs and natural resource
damages, including compensation for reduced aesthetic value.
Due to the uncertainty and potential magnitude of pollution-related claims,
insurers have attempted to avoid or limit these risks by including specific
pollution exclusion and limitation clauses in policies. Statutory regulation of
policy content and prescribed wording for clauses could address problems
relating to the interpretation of policy provisions.
Various other issues such as the coverage of gradual pollution, the effect of
the various triggers of coverage and the potential long-tail liability of insurer,
the lack of information and the unpredictability of the risk cause further
complications for both the insured and the insurer. Policies should preferably
be issued on a `claims-made' basis linked to retroactive dates. Mandatory
third-party insurance to the benefit of a third party should be required within
specific high-risk industries, specifically for the benefit of the prejudiced
person or an environmental remediation fund. The right of a prejudiced party
to claim directly from the polluter's liability insurer should be introduced.
Currently, the focus appears to be more on protection and environmental
remediation than on civil compensation. There is an urgent need for the
development of statutory and civil liability compensation mechanisms and for
an increased regulation of insurance policies and practices to ensure effective
insurance cover to provide compensation for environmental damage. / Jurisprudence / LL.D.
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The nature, assessment and quantification of medical expenses as a head of delictual damage(s)Monyamane, Phillip Lesetja 07 1900 (has links)
Medical expenses refer to all medical and related expenditure reasonably incurred in respect of bodily injuries sustained. This then constitutes the primary loss in incidences of bodily injuries. However, it is accepted that bodily injuries infringe in the main the non-patrimonial aspects of the individual’s bodily integrity which is a personality right. Notwithstanding this trite provision of our law, the dissertation contends that medical expenses as a head of damages is inherently patrimonial. In essence, the true nature of medical expenses as a loss that ultimately affects both the patrimonial and non-patrimonial interests of the individual, is considered.
Furthermore, the dissertation analyses the assessment and quantification mechanisms in our law, and makes a comparative study with the corresponding positions in England and Australia. The intended outcome of this dissertation is to provide clear guidelines for the award of damages, particularly where future loss is involved. / Private Law / LLM
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Insurance against damage caused by pollutionKuschke, Birgit 28 February 2009 (has links)
Universally complications exist concerning insurance cover for the risks posed
by pollution damage. Environmental insurance cover can be procured under
first-party or third-party insurance. For the latter, the polluter's statutory or civil
liability is required. The determination of liability for compensation, especially
delictual liability, remains problematic.
The right to the environment in section 24 of the Constitution creates a
general duty of care. The introduction of a strict liability regime can be
recommended to alleviate the burden of proving fault and contributory
negligence. Where there is multiple or cumulative causation or the exact
identity of the polluter is unknown, potential solutions regarding the allocation
of liability include a pollution-share, joint and several, market-share or, as a
last resort, a proportional allocation. Actionable damages should include
property damage, pure economic loss, clean-up costs and natural resource
damages, including compensation for reduced aesthetic value.
Due to the uncertainty and potential magnitude of pollution-related claims,
insurers have attempted to avoid or limit these risks by including specific
pollution exclusion and limitation clauses in policies. Statutory regulation of
policy content and prescribed wording for clauses could address problems
relating to the interpretation of policy provisions.
Various other issues such as the coverage of gradual pollution, the effect of
the various triggers of coverage and the potential long-tail liability of insurer,
the lack of information and the unpredictability of the risk cause further
complications for both the insured and the insurer. Policies should preferably
be issued on a `claims-made' basis linked to retroactive dates. Mandatory
third-party insurance to the benefit of a third party should be required within
specific high-risk industries, specifically for the benefit of the prejudiced
person or an environmental remediation fund. The right of a prejudiced party
to claim directly from the polluter's liability insurer should be introduced.
Currently, the focus appears to be more on protection and environmental
remediation than on civil compensation. There is an urgent need for the
development of statutory and civil liability compensation mechanisms and for
an increased regulation of insurance policies and practices to ensure effective
insurance cover to provide compensation for environmental damage. / Jurisprudence / LL.D.
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The nature, assessment and quantification of medical expenses as a head of delictual damage(s)Monyamane, Phillip Lesetja 07 1900 (has links)
Medical expenses refer to all medical and related expenditure reasonably incurred in respect of bodily injuries sustained. This then constitutes the primary loss in incidences of bodily injuries. However, it is accepted that bodily injuries infringe in the main the non-patrimonial aspects of the individual’s bodily integrity which is a personality right. Notwithstanding this trite provision of our law, the dissertation contends that medical expenses as a head of damages is inherently patrimonial. In essence, the true nature of medical expenses as a loss that ultimately affects both the patrimonial and non-patrimonial interests of the individual, is considered.
Furthermore, the dissertation analyses the assessment and quantification mechanisms in our law, and makes a comparative study with the corresponding positions in England and Australia. The intended outcome of this dissertation is to provide clear guidelines for the award of damages, particularly where future loss is involved. / Private Law / LLM
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