Conduct
Voluntry Conduct
A voluntary act or omission by the insured driver is a requirement of liability for the claimant or his forensic assessors to establish an action / claim under the Aquilian Action. For the (insured driver) RAF, to be liable, the conduct of the insured driver must be voluntary, i.e. subject to the control of his mind, although it need not be desired or intended.
Human activity is conduct for legal purposes only if it was voluntary in a sense that it was at the time it occurred, subject to control of the actor's will. Control by the defendant’s will implies the existence of a mental capacity to direct his muscular and bodily conduct. Control by the will does not necessarily imply a capacity to direct ones action responsibly. It is sufficient if one has the minimal capacity to control in the sense of being able to omit to do the particular act or to choose and execute a nother course of conduct. An infant and an insane or intoxicated person therefore usually have not the mental capacity to act. If, however, a person’s insanity or degree of intoxication is of such a nature that he has no control over his bodily movements, his movements become involuntary and can therefore not be considered to be conduct for the purpose of dilictual liability.
The distinction between a commission and omission is of fundamental importance to the law of delict. Although both are forms of conduct for the purpose of legal liability, the commission and an omission are different in nature and can consequently not be treated on the same basis. It is well known that liability for omissions is generally demand altruistic behaviour, it does not require you to love your neighbour, but only that you shall not injure your neighbour.
An “omission to take certain measures in the cause of some activity is therefore not necessarily a form of conduct but may well indicate that the action was negligently performed, and in such a case a personal injury claim should be made. An action as part or a stage of some positive activity can therefore constitute or indicate negligence on the part of the actor; negligence per definition is a failure to take reasonable precautions. To drive a car through a stop street into another car constitute a cause of a commission. The failure to stop is an omission”.
Involuntary conduct
An involuntary act is the act of a person, though capable of the action, is not conscious of what he is doing.
(S v Trickett 1973 (3) SA 526 (T)
There must not be time for reflecting before acting.
The act of a driver confronted with a sudden emergency must not be confused with an involuntary act.
The difference between a sudden emergency situation and an involuntary act lies in the fact that during an involuntary act the driver is not conscious of what he is doing but in a sudden emergency the driver is conscious of what he is doing and the only question is whether his act is reasonable or not. If his act is reasonable during a sudden emergency he is not negligent.
E.g. S v Erwin 1974 (3) SA 438 (C).
A defendant is not liable for his involuntary conduct, (it may take the form of an act or an omission). For him to be delictually liable his conduct must be voluntary, i.e. subject to the control of his mind although it need not be desired or intended.
A defendant whose mind does not control his conduct is like an automation – hence the use of the term: “automatism” for unconscious involuntary conduct.
Automatism must not be confused with mental incapacity. In collision cases in which a motorist has sought to attribute his bad driving to an elliptic seizure, a mental black-out, a heart attack or acute alcoholic poisoning the Court has usually treated this as "defence" of sane automatism which if established, is said to excuse the motorist of his negligent conduct. A voluntary act or omission is a prerequisite for delictual liability. A motorist who acts like an automation does not “act” and cannot be negligent.
Definition
An involuntary act is the act of a person who, though capable of action, is not conscious of what he is doing.
(S v Trickett 1973 (3) SA 526 (T)).
An act is not involuntary if the driver has time to reflect before acting.
S v Erwin 1974 (3) SA 438 (C):
A bee unexpectedly flew into the motor car driven by the accused and stung him on his left cheek, after which he instinctively turned his head. He knocked his spectacles against a window and broke a lens. Small pieces of glass were stuck in the frame near the accused’s right eye. He immediately took both hands from the steering wheel to protect his right eye and lost control over the vehicle and collided with another vehicle.
The court held that the driver’s act of grabbing his spectacles, involving conscious thought, was not an involuntary act. The bee created a sudden emergency but the driver was convicted negligent driving because he acted unreasonable in the circumstances.
Also refer to Government v Marine & Trade Ins 1973 (3) SA 797 (D)
In this matter the defendant pleaded that the insured driver suffered a sudden and unexpected mental black-out immediately before the collision which caused, though no fault on his part, that he was unable to control the movement of his motor vehicle and avoid the collision.
The insured driver was also injured and suffered from retrograde amnesia. He could not recall anything after he had felt a tickle in his throat while driving in the vicinity of the collision. A specialist physician advanced the theory that the insured driver might have had a black-out brought on by about of coughing and that the collision may have occurred when the insured driver was unconscious and not in control of his motor vehicle. The doctor suggested that the insured drivers inability to give an account of the coughing, but might have been due to retrograde amnesia. The doctor had found on examining the insured driver that the condition of his chest was such that it might take only a fairly short spell of coughing for the insured driver to have a black-out.
The court found it significant that, all Cummings ( the insured driver ) was able to remember was a tickle in his throat, but nothing about the collision. It was unlikely that a tickle in the throat would have progressed to a black – out without a fairly severe bout from coughing – Cummings had never before suffered a black-out from coughing. The Court found that it was extremely unlikely that on the occasion in question Cummings became a victim of such a sudden and severe coughing that he was rendered unconscious or that before this situation arose he was unable to steer his motor vehicle to the left out of Harms way. On a balance of probabilities the Court rejected the theory that the collision was caused as a result of Cummings having a black-out induced by about of coughing. The Court held further that even if Cummings did have about of coughing it was not shown that by reasonable skill he could not have avoided a collision with the approaching vehicle.
In Gabellane v Protea Ass 1981 (4) SA 171 (O) the plaintiff was travelling along a main road when a light truck driven by Wessels, the defendant, travelling along a minor side road failed to stop at a yield sign, entered the junction at an inopportune moment and collided with the plaintiff’s motor vehicle. The evidence showed that immediately after the collision Wessels was in the throes of a heart attack and died shortly thereafter.
The crux of the dispute between the parties was whether Wessels caused the light truck to move on the main road of his own volition of whether he was at the time already unable to control his own acts and/or movement of the vehicle as a result of a heart attack.
The Court found that Wessels was suffering serious distress and was no longer able to control the vehicle properly before it reached the yield sign.
It was held that the plaintiff failed to show that the collision was caused by any negligence on the deceased’s part, and disagreed with the submission that the onus rested on the defendants to prove that the deceased was not capable of avoiding the collision but not the assumption that it did, he held that the defendant had discharged the onus.
As a voluntary act or omission is a prerequisite for delictual liability the better view is that, if automatism is in issue, the onus of proof is on the party alleging that a driver was acting voluntarily at the relevant time. This inquiry should be approached along the same lines as in a criminal case, bearing in mind that in a civil action a fact must be proved on a balance of probabilities.
Foreseeable loss of consciousness
Foreseeable automation will not exclude the driver of a motor vehicle from liability. A motorist who is drowsy or suffering from exhaustion should foresee that he might fall asleep and lose control over the vehicle he is driving. He should, therefore, stop until his fit to drive. If he fails to do so and, as a result of falling asleep, loses control of the vehicle, he is negligent.
A person who should foresee that he might an epileptic fit or a black – out will be liable, if due to his condition, he has a mental black – out, loses control over the vehicle and caused damage to another. In each instance he is negligent because he should have foreseen the possibility of the occurrence but, nevertheless, drove.
A motorist who has
(1) Epileptic seizure
(2) Mental black-out
(3) Heart attack.
does not act voluntary and therefore the act cannot be negligent and no liability can be ascribed to such a driver.
If it is pleaded that the insured driver acted involuntary the onus of proof is on the defendant, on a balance of probabilities and following must be proven.
There must
- firstly, be evidence sufficiently cognant to raise reasonable doubt as to the voluntary nature of the actus reus; and
- secondly, medical or other evidence to show that the involuntary nature of the actus reus is due to other than mental illness or disorder.
S v Trickett 1973 (3) SA 526 (T).
The following can be involuntary acts
- Epileptic seizure (R v Rossouw 1960 (3) SA 326 (T) a heart attack
(Gabbellone v Protea Assurance 1981 (4) SA 171(O)). - Severe bout of coughing that progresses to a black-out.
(Government v Marine & Trade Insurance 1973 (3) SA 797(D)