Page 49 - The Circle of Life

Liability

You cannot be held liable unless you did something which harmed the plaintiff
whilst your conduct was wrongful and there must be logical connection between

what you did and the harm to the plaintiff. It must also be your fault and since
this can be quite difficult to explain in writing I will do so in the form of an

anecdote which my professor told me years ago and it somehow stuck in my
brain: "Apparently your client, Mr X, was a keen golfer and one morning he teed

off at the 16th hole but as luck would have it he hooked the ball across the field
and down the road where the ball hit an oncoming truck which then crashed into

the sidewalk injuring Mr Z who was having his morning coffee minding his own
business so to speak. Luckily Mr Z only suffered a broken leg but when loaded

into the ambulance the crew forgot to tie him down or rather the bed he was on
as they were feeling the effects of a late night party. Mr Z then fell out of the

moving ambulance because he was not tied down and a car drove over him
wounding him fatally."

May I say the correct answer was to change Mr X's grip on his driver slightly and

then nothing of this would have happened anyway. The legal question is how far
can Mr X be held liable for Mr Z's injuries? This dear reader is the laws of delict

and a nightmare it is indeed for it is inherently flexible and the truth is much
stranger than fiction. However since the law is neutral and these things been

happening for thousands of years we have in law a certain way to look at the
occurrences to see who is liable and how far. It is not rocket science.

Harm is very important and reasonably easy to determine. It is a factual
question. Were you harmed or not? But what does harm mean? Almost anything

which caused you to differ from your normal path but for the incident which took

place is called harm if it hurt you in some way. Obviously an amount of gravity is
expected for the law does not concern itself with trifles under the legal dictum de
minimis non curat lex.

The conduct must be voluntary for anything else would be good defense in law.

This includes a reflex action which is not voluntary. For instance you touch a
burning oven plate and as you jump back you hit the plaintiff in the face or step

on his great toe both of which harmed him. Since this reflex act is not voluntary

48