The Influence of Reasonableness on the Element of Conduct in Delictual or Tort Liability ─ Comparative Conclusions

In this contribution the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct in English tort law, American tort law and the French law of delict. Fundamental similarities and differences among the different legal systems must be considered. France and South Africa follow a generalising approach to determining a delict while English and American law have a system of separate torts. Even though English and American law do not explicitly refer to the requirement of conduct in tort law, it is generally implicitly required. This is the case whether one is dealing with the tort of negligence or the intentional torts. In French law too, a fait générateur (a generating, triggering, wrongful act or event) generally must also be present in order to ground delictual liability. The concept of fait générateur is broader than the concept of conduct found in the other jurisdictions in that it extends beyond what is regarded as human conduct. The conduct in all the jurisdictions may be in the form of a commission (a positive, physical act or statement) or an omission (a failure to act). The requirement that conduct must be voluntary is generally found in South African, English and American law (with an exception applying to mentally impaired persons) but not in France. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. In all the above-mentioned jurisdictions, it would generally be unreasonable to hold the wrongdoer liable in delict or tort law if the omission or commission does not qualify as some form of conduct. Thus the influence of reasonableness on the element of conduct in all the above-mentioned jurisdictions is implicit.


Introduction
Much uncertainty about the role of reasonableness has surfaced in the South African case law lately, particularly with regard to the elements of wrongfulness and fault in determining delictual liability. This has prompted me to undertake research in order to ascertain the influence of reasonableness on the elements of delictual liability. In previous contributions 1 the historical development of the concept "reasonableness", its definition, its modern uses and its interrelatedness with other jurisprudential concepts in the law of delict were discussed. In this contribution the influence of reasonableness on the element of conduct 2 in determining delictual liability in South African law will be analysed and compared with the influence of reasonableness on the requirement of some form of conduct in English tort law, 3 American tort law 4 and the French law of delict.
France and the United Kingdom have produced two major legal systems of the world, both of which have influenced many other legal systems. 5 The French Civil Code of 1804 was the basis for civil law in Italy, Belgium, Luxembourg, Netherlands, Poland, Spain, Portugal and some African countries. 6 For this reason, French law, as one of the most influential systems in the civil law tradition, is a good choice for comparative research, in addition to the law of the United Kingdom (hereinafter referred to as English law) and the law of the United States of America (hereinafter referred to as American law). The United States of America and the United  Raheel Ahmed. LLB LLM LLD (UNISA). Admitted Attorney, Conveyancer and Notary of the High Court of South Africa. Senior Lecturer, Department of Private Law, University of South Africa. E-mail: ahmedr@unisa.ac.za. This contribution is based on material taken from various chapters of my LLD thesis The Explicit and Implicit Influence of Reasonableness on the Elements of Delictual Liability. Thank you to my employer, the University of South Africa, for awarding me the "Academic Qualification Improvement Programme" grant. The grant enabled me to research English tort law, American tort law and the French law of delict, and to complete the thesis. Thank you also to my supervisor Prof JC Knobel for his valuable guidance. 1 Ahmed 2019a THRHR 257 and Ahmed 2019b THRHR 381. This current contribution is the third contribution in a series of contributions based on the influence of reasonableness on the elements of delictual liability. 2 The influence of reasonableness on the other individual elements of delictual liability will be discussed further in later contributions still to be published. 3 The word "tort" is synonymous with the word "delict". The term "English law" here refers to the law of the United Kingdom. 4 The term "American law" here refers to the law of the United States of America. Kingdom represent the common law family, 7 while France represents the civil law family. 8 Zweigert and Kӧtz 9 point out that even though American law is based on English law, it has developed its own style and it would be a mistake not to include it in a comparative study. The mix of English law and American law is commonly referred to as Anglo-American law. This term will be used herein when referring to English and American law. This choice of jurisdictions should produce insights from a variety of perspectives in respect of the influence of reasonableness on the law of delict or tort law.
It is useful to begin with a brief explanation of the fundamental differences and similarities between the legal systems of the above-mentioned jurisdictions. Thereafter, the influence of reasonableness on some form of conduct in each of these jurisdictions will be analysed. In conclusion the similarities and differences between the influences of reasonableness on some form of conduct in the jurisdictions will be highlighted.

Fundamental differences and similarities among the different legal systems
In general, English common law has influenced South African law. 10 English law has also influenced American law. However, since the United States of America declared its independence from Britain in 1776, its law has undergone change, particularly due to the adoption of a written constitution. 11 Social and economic development in the United States of America has also influenced the development of law. 12 Roman-Dutch law was introduced into South Africa by the Dutch in the seventeenth century. 13 The South African law of delict is therefore a mix of 7 Common law is based on case law that developed over time. Adjudicators refer to prior existing decisions. English and American law is based on common law and therefore form part of the common law family. See Zweigert and Kӧtz Introduction to Comparative Law 41,69. 8 In respect of the civil law tradition, the law ruling the jurisdiction is codified. Adjudicators need not refer to prior existing decisions but refer to the codified law. In France, the adjudicators refer to the French Civil Code of 1804 (CC) and therefore French law, like German law (the Bϋrgerliches Gesetzbuch -the Civil Code of Germany) forms part of the civil law family. See Zweigert and Kӧtz Introduction to Comparative Law 69,74,[143][144] Zweigert and Kӧtz Introduction to Comparative Law 41. 10 See  Constitution of the USA. The Constitution encompasses basis rights which generally cannot be infringed by the legislature, the executive or the judiciary. The country also has a federal structure. See Zweigert and Kӧtz Introduction to Comparative Law 219, 239.
R AHMED PER / PELJ 2019 (22)  4 English common law and Roman-Dutch law. 14 It is for this reason, coupled with South Africa's adoption of a written constitution 15 and recognition of the applicability of South African customary law, 16 that South African law is now referred to as a hybrid system or mixed jurisdiction. 17 Like Roman law, the common law of torts initially developed with specific categories of liability, but on the continent, a general approach in determining liability was followed. 18 This general approach is followed in South African and French law. 19 The Anglo-American law kept to the tradition of separate torts which was developed under the writ system. 20 Each separate tort is independent, has its own elements, its own possible defences, and protects particular interests. 21 There are many torts in Anglo-American law. For example, English law has approximately seventy torts. 22 Due to the fact that Anglo-American law differentiates between many intentional torts and the tort of negligence, only the tort of negligence and the torts of trespass to the person will be considered. 23 The torts of trespass to the person include the tort of battery, the tort of assault, and the tort of false imprisonment.
South African, English and American law follow the precedent system due to the common law influence on the law of civil procedure. 24 Thus, adjudicators 25 decide on whether a delict or tort was committed, whether a defence is applicable in limiting or excluding liability, and the amount of compensation that should be awarded to the plaintiff. Constitutions, legislation, international treaties and conventions in conjunction with the 14 Zweigert and Kӧtz Introduction to Comparative Law 231. 15 The Constitution of the Republic of South Africa, 1996. 16 Provided it is consistent with the constitutional provisions and has not been affected by legislation. See ss 211 and 13 (2)  Even though Anglo-American law does not follow a generalising approach as in South Africa and France, in all these jurisdictions, generally, as will be shown below, some form of conduct is required and inferred from the facts in order to ground liability in delict or tort law.
South African, English and American law generally refer to "reasonableness" in considering a number of elements of delictual or tort liability. In France the concept is not explicitly referred to but the concepts of solidarity, liberty and equality are. 28 "Reasonableness" is considered implicitly, however, where other terms or phrases reflecting reasonableness values or standards are used. Fletcher 29 correctly points out that while jurisdictions following common law such as the United Kingdom and the United States of America easily refer to the concept "reasonableness", other jurisdictions (like France) rarely do, but that does not mean that lawyers of the different jurisdictions think differently. It just means that they speak differently.

The influence of reasonableness on the element of conduct in the South African law of delict
Conduct is defined as a "voluntary human act or omission". 30 From this definition it is apparent that conduct may be in the form of an omission (a failure to act) or a commission (a positive, physical act or statement Which resulted in the injury of an innocent victim. 50 Gabellone v Protea Assurance Ltd 1981 4 SA 171 (O) 173-174. Van der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 26-29 submit that automatism does not exclude conduct, but rather wrongfulness or fault. Their view may be illustrated with reference to the example in the text above in that the actual conduct which led to the accident was not voluntary, but there were prior voluntary acts (or, in the example, an omission to take medication) which caused the innocent victim's injury. They submit that the conduct was voluntary but that fault is absent, resulting in no delictual liability. Neethling and Potgieter (Law of Delict 29) admit that this view may be theoretically correct, but criticise it on the ground that it conforms to a narrow view of automatism, and also that the plaintiff may have difficulty in proving negligence. The latter authors are of the view that one must look at the act which caused the harm (not the prior acts) and if it is involuntary then there is no "conduct". If, however, the defendant knew or should have reasonably foreseen that his omission could cause harm, he will not be able to rely on automatism because his liability will be based on his prior conduct. 51 See Molefe v Mahaeng 1999 1 SA 562 (SCA), where the defendant suffered a blackout raising automatism as a defence and succeeded. Even though the defendant had slipped and fallen earlier on the day of the accident, the court held that there was a lack of evidence in proving that the reasonable person should have been aware of the possibility of a blackout as a result of the fall earlier that day (569). In this case, the court followed a similar approach to that in English law (with regard to the tort of negligence), where the standard applied is the "reasonable person" and fault in the form of negligence is absent. English tort doctrine generally does not differentiate between the element of conduct and fault. See Mansfield v Weetabix 1988 1 WLR 1263 (CA). Mullender 2005 MLR 688, however, with regard to Anglo-American law agrees that in such instances the defendant does not act. In Wessels v Hall and Pickles (Coastal) (Pty) Ltd 1985 4 SA 153 (C) 158, the defendant suffered a hypoglycaemic attack resulting in a diabetic coma while driving and causing an accident. The court held that the defendant was negligent for failing to take precautions by eating a mid-morning snack in his insulin-dependent diabetic condition. The reasonable person would have foreseen the possibility that if he missed his mid-morning snack, his blood sugar level might have dropped unexpectedly, thereby causing him to lose control of the vehicle. But see Gabellone R AHMED PER / PELJ 2019 (22) 8 ascertain whether the conduct was voluntary, the courts consider the conduct, prior to the state of automatism, of the hypothetical reasonable person in a position similar to that of the defendant. This relates to negligence. 52 Similarly, with reference to the example above, intentional conduct may be considered. Thus, if the defendant intentionally and deliberately does not take his medication one morning, leading to him suffering an epileptic fit while driving, thereby causing an accident, it is doubtful that he will be able to rely on automatism. The doctrine actio libera in causa 53 may be applied and the defendant may be held liable for any harm or loss suffered by the plaintiff. 54 The influence of reasonableness on conduct is implicit. 55 It is in principle reasonable to hold a defendant liable in delict only if the element of conduct is present with all the other required elements. 56 It is reasonable to hold a person liable in South African law only if the voluntary conduct was present in the form of an act or omission and was undertaken by a human being. 57 Naturally, if the conduct was not undertaken by a human being or was involuntary, then it is unreasonable to hold the defendant liable, as there is no conduct. 58 In cases where an animal is used as an instrument by a human being to commit a delict, then it may be deemed a human act, as the human being is in control of the animal. 59 In a similar vein, conduct by a natural person acting as an organ of a juristic person may be deemed v Protea Assurance Ltd 1981 4 SA 171 (O) 173-174, where the driver suffered from coronary thrombosis prior to his death and subsequently suffered a cardiac disturbance which affected his ability to control the vehicle he was driving shortly before the accident. The court held that what happened thereafter was "not due to any voluntary action or inaction on his part." Edeling AJ found that on the balance of probabilities the (deceased) driver, at the time of the accident, suffered a heart attack which was not due to his negligence (174 Generally, in determining whether conduct is present the adjudicator will consider the facts of the case. It is predominantly a factual enquiry. However, in the requirement that the conduct must be voluntary, normative elements become more prominent. In principle, if the conduct is voluntary, then conduct may be present and it is reasonable to hold the defendant liable in delict, providing all the other elements are proved. In respect of the defence of automatism, it may be argued that it is reasonable for the defence to apply, if the person was mentally unable to control his muscular movements. Thus, if the defendant was mentally able to control his muscular movements then in principle his conduct may be considered voluntary, the defence of automatism will not be applicable, and it is reasonable to hold the defendant delictually liable. As already stated, automatism will not succeed if the defendant's prior intentional or negligent conduct led to the involuntary bodily movements which resulted in harm to the plaintiff. It would thus be unreasonable for automatism to succeed as a defence to the element of conduct if the defendant's prior negligent or intentional conduct led to the subsequent involuntary bodily movements which resulted in harm to the plaintiff. The influence of reasonableness is implicit on voluntariness. In principle, if the defendant's conduct is involuntary then an element may be absent or a defence to battery may be applicable. The conduct required is direct, physical, unlawful, non-consensual contact. If a person is reasonably expected to endure the direct, physical, voluntary contact or if the contact is inconsequential then there is no battery.

Assault
Assault is a positive act by the defendant that intentionally and directly "causes the claimant reasonably to apprehend the imminent infliction of battery". 78

The tort of negligence
In the tort of negligence, 89 the criterion applied is the reasonable person standard. It has been held that the reasonable person may have certain conditions such as a condition leading to a heart attack, 90 and that such a person who is unaware of his condition cannot be held liable for the harm he caused as a result of the condition. 91 It is evident that English law, in a sense, has influenced South African law, as an approach similar to that in English law has been followed in determining whether there was any prior fault-related voluntary conduct. English tort law refers to the reasonable person as the hypothetical ordinary person who may have a condition such as a heart attack leading to mechanical acts (where there was no prior fault-related act) causing harm.
In such instances there is no fault and therefore no liability in the tort of negligence. In the South African law of delict, conduct would be absent as the conduct is involuntary, as well as fault, providing there was no prior faultrelated voluntary conduct which led to the subsequent involuntary act.
It is apparent that in English law the defence of automatism (that is, acting without fault) is therefore applicable in the tort of negligence and the intentional torts. It is unreasonable for the defence of automatism to apply where prior negligent or intentional voluntary acts subsequently lead to involuntary acts resulting in harm to another. Thus, it is reasonable for the defence of automatism to apply if there were no prior negligent or intentional acts leading to involuntary conduct causing harm.
A person who is unaware of his condition and, for example, suffers a heart attack which leads to mechanical movements resulting in harm or loss, may not reasonably be held to have capacity or be liable in the tort of negligence. Capacity "refers to the status of legal persons and their ability to sue or be sued in tort". 92 89 The tort of negligence will be discussed in more detail in later contributions still to be published (see fn 1 With regard to the tort of negligence, conduct is not explicitly referred to as a requirement but some form of conduct is required, that is in the form of an omission, a failure to act, in order to ground liability. 93 In Anglo-American law the term "misfeasance" refers to affirmative or positive action, synonymous with the term "commission" used in South African law, while "nonfeasance" refers to a failure to act 94 and is synonymous with the term "omission" used in South African Law. As stated above 95 the conduct must be voluntary, whether one is dealing with an intentional tort or the tort of negligence. The tort of negligence specifically deals with negligently inflicted harm. 96 It protects a number of interests and focusses on the conduct of the defendant and whether the defendant acted unreasonably in causing the plaintiff's harm or loss. 97 In English law, under the tort of negligence "omissions" are recognised as a specific category of the duty of care. This category of duty will be discussed in detail in a future contribution as it deals more with the other elements of a tort than with the requirement of conduct. 98 For the purposes of this contribution it is sufficient to point out that conduct in the form of an omission is required when determining liability in the tort of negligence. Thus, in respect of negligence a failure to act may lead to liability in the tort of negligence, provided all the other elements are also present.
In South African law, conduct in the form of an omission is still regarded as conduct which may lead to liability in delict if the remaining elements required are also present. 99 The influence of reasonableness on some form of conduct in English law is implicit in that it is unreasonable to hold a person liable under the tort of negligence if there was a failure to act/nonfeasance.

The intentional torts of trespass to the person
Generally, the torts of trespass to a person require some kind of positive, physical act. 100 The torts are actionable per se. That is, proof of physical harm is not required (in contrast to the tort of negligence where proof of harm is required) and the plaintiff is in principle entitled to damages. 101

Battery
According to the requirements, there must be an intentional positive (affirmative) act, 102 resulting in harm or offense to the plaintiff or another that is not privileged or consented to. 103 In terms of the act, such an act must be voluntary. 104 Involuntary acts such as muscle spasms, fits and so forth do not qualify as acts. 105 However, an instinctive response to an emergency such as grabbing a person's arm or striking a person out of "insane impulses" 106 constitutes an act. Contact or touch must be substantial or significant and it is interpreted widely. For example, contact is present where a person drinks poison placed in a cup, 107 is exposed to dangerous fumes, 108 or radiation, or smoke from tobacco, provided there is a "purpose the defendant liable for battery. The tort of negligence may, however, be applicable.

Assault
Assault usually occurs before battery, and is "an act that is intended to and does place the plaintiff in apprehension of an immediate unconsented-to touching that would amount to a battery". 120 The Restatement Second of Torts refers to "apprehension" 121 while the Restatement Third of Torts refers to "anticipation". 122 The courts sometimes refer to "fear". 123 Subjective anticipation or apprehension of harm is required on the part of the plaintiff. 124 A claim for assault (as in English law) is based on the lack of physical contact or harm. Thus, if there is physical contact then it may be regarded as a battery. 125 The plaintiff must be aware of the impending harm. 126 Without such awareness there is no assault, but if the plaintiff is subsequently harmed then there may be a battery. 127 An example of assault occurs where the defendant intends to scare the plaintiff by shooting at him but not intending for the bullet to strike him. In Raess v Doescher, 128 even though there was no attempt to strike the plaintiff, the plaintiff's belief in an imminent strike was reasonable, considering that the defendant "aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins", 120 Dobbs screamed, swore at him, and backed him up against a wall. 129 If the plaintiff anticipates an imminent battery then there is an assault. 130 Other examples of assault include shaking a fist under the plaintiff's nose, 131 aiming a weapon at a person, 132 and chasing a person with intent to harm. 133 It was previously thought that words without actual physical conduct do not constitute assault, 134 however, words are now considered in context and may, depending on the circumstances, constitute "assault". 135 For example, in Cullison v Medley 136 the defendants entered the plaintiff's home one evening after he retired to bed. They accused and berated him while one of the defendant's repeatedly slapped at a gun which was in a holster on his thigh but did not draw it. The court found that in the light of all the facts, there was an assault. 137 The influence of reasonableness on assault is implicit. The conduct must be in the form of an intentional, voluntary, positive act. Through his actions or words the defendant must cause the plaintiff to subjectively fear, anticipate or apprehend an immediate, direct, unjustified battery. It would be unreasonable to hold the defendant liable for conduct which is not deemed voluntary. Furthermore, if conduct on the part of the defendant is absent, then no tort has been committed.

False imprisonment
False imprisonment infringes on the plaintiff's freedom of movement, and such a restriction of movement by the defendant may occur in a direct or 129 Dobbs indirect manner. 138 The defendant must intend 139 to confine (detain or restrain) 140 or instigate the confinement of the plaintiff against the plaintiff's will. 141 False arrest is similar to false imprisonment except that in false arrest, the arrest is executed by an officer or a person authorised to make an arrest. 142 Confinement for even the shortest period of time is sufficient. 143 Arrest, threats, duress or physical force may be used to confine a person. 144 Examples of false imprisonment include a patient's being held against his will at an institute for substance abuse, 145 the driver of a motor vehicle not allowing a passenger to get out of the vehicle, 146 and a police officer detaining the plaintiff without a warrant or "probable cause".
The influence of reasonableness on the requirement of a positive voluntary act leading to the confinement of the plaintiff is implicit. The restriction of the plaintiff's freedom of movement may be caused directly or indirectly. The conduct must be in the form of the voluntary, intentional, confinement of the plaintiff, or it would be unreasonable to hold the defendant liable for this tort. Furthermore, without the positive act on the part of the defendant of causing the confinement of the plaintiff, there is no tort of false imprisonment.

The tort of negligence
In American law, as in English law, conduct is not referred to as a specific requirement, but conduct in the form of an omission/nonfeasance is required.
In American law, as in English law, in instances where a person is "reasonably unaware" of his own disability or physical limitation, such as where a person suffers a heart attack and was not aware of his condition, even though there is conduct he may not be held liable because the heart attack was unforeseeable. 147 The same applies where a person sustains a stroke or an epileptic fit, or faints. 148 A person who is aware of his condition, disability or physical impairment, or can reasonably foresee that he is prone to such impairment, such as a person prone to seizures, may be held negligent for not controlling the seizures. 149 A person who voluntarily consumes alcohol 150 is still judged according to the standard of the sober, reasonable person. 151 The reason for this is that it would be common for a defendant to raise the excuse of intoxication. Drunkenness is not encouraged in society, and a person who consumes alcohol should be held accountable for the consequences of consuming alcohol and causing harm. 152 A mental impairment, incapacity or disability will generally not lead to the exclusion of liability in the tort of negligence or the intentional torts. 153 Keeton et  to the standard of the reasonable person. 155 Holding insane persons to a standard that they cannot meet has been criticised. 156 The reasons for holding them to the reasonable person standard include that it is difficult to differentiate between one's bad judgment and one's mental incapacity; that it is fair to the plaintiff to receive compensation for harm done to him; that it will encourage those who are charged with the care of the mentally incapacitated to take care of them and control them with more care; 157 and that it is costly to determine the capabilities of a person with a mental impairment. 158 Dobbs, Hayden and Bublick 159 refer to two cases that have applied as exceptions to the general rule. In one of them a court in Wisconsin 160 held that a person cannot be held liable for conduct as a result of a sudden unforeseeable insanity and in the other, a court in New York 161 found a defendant who became insane "as a result of extraordinary efforts to protect the plaintiff" not liable. The standard of care applied to a mentally incapacitated person, whether he is suffering a mental impairment 162 or insanity 163 etc, remains the standard of the reasonable person, not the standard of the reasonable person affected by a mental deficiency or insanity.
It is reasonable not to hold a person liable who is unaware of his own disability or physical limitation, as the condition was reasonably unforeseeable. This approach is applied in English law and in a sense followed in South African law. An anomaly applies in American law to persons with mental illnesses or mental impairments, where such subjective illness or impairment is not considered in adjusting the standard or nullifying the requirement of conduct. Such persons are in a sense held strictly liable. reasonable person standard has been criticised, the most plausible reason is that it is fair and reasonable to compensate the innocent plaintiff.
In respect of the tort of negligence, there is generally no duty to act in cases of pure omission (nonfeasance) even if harm is foreseeable. 164 The question is whether the reasonable person would have acted in the circumstances. 165 In American law, just as in English law, "omissions" are regarded as a specific category of duty. For the purposes of this contribution, it is sufficient to point out with regard to American law too that conduct in the form of an omission is considered when determining liability in the tort of negligence. Therefore, a failure to act may lead to liability in the tort of negligence, provided all the other elements are also present.
The influence of reasonableness is implicit, too, on the requirement of some form of conduct in American law, as it is unreasonable to hold a defendant liable under the tort of negligence if there was no omission/nonfeasance on the part of the defendant.

Fait générateur (relating to the requirement of conduct) in Articles 1382 to 1383 of the French Civil Code 166 (hereinafter referred to as the "CC") ─ relating to liability for one's own personal conduct where fault is required
According to the requirements of delictual liability under French law, there must be a fait générateur, that is, a generating, triggering, wrongful act or event. 167 There is no precise definition of fait générateur in the CC, but it is a requirement for liability for one's own conduct (where fault is required). 168 The term "conduct" is not explicitly referred to as a requirement for delictual liability in French legal doctrine as in South African law, but some form of conduct falling within the requirement of fait générateur is necessary to ground delictual liability. Article 1382 generally relates to liability for conduct while Article 1383 specifically provides that "everyone is responsible for the damage caused not only by his act but also by his negligence or carelessness". 172 Van Gerven, Lever and Larouche 173 point out that this clause refers to liability not only for a positive act, but also for an omission. 174 In French law, not only a failure to act with regard to a statutory rule, but also "a failure to act in accordance with a non-legally-binding rule of proper social conduct can also entail liability". 175 An obligation to act positively in respect of delictual liability may stem from an "obligation of safety" (obligation de sécurité). 176 However, French law does not place particular importance on the positive legal duty to act. Furthermore, the requirement of conduct, whether in the form of an omission or commission, in cases of fault liability is subsumed under the enquiry into faute. 177 Faute in French law is a broad concept covering aspects of the elements of wrongfulness and fault as understood in the South African law of delict. 178 French law in general is more favourable to the plaintiff than other legal systems. In respect of the element of conduct (as it is known in the South African law of delict) French law really requires just a factual enquiry as to whether a generating act or event is present or not. Furthermore, the source of the generating act or event may stem from a so-called "act of a thing" or 169 Cass civ 2 3 July 1991 90-13158, Bull civ 1991 II 210 111. The influence of reasonableness on the concept of faute will be discussed in later contributions still to be published (see fn 1).

R AHMED
PER / PELJ 2019 (22)  24 another person (where one is responsible for that person). 179 But the custodian of the thing, or person responsible for another that caused the harm or loss, may be held strictly liable. 180 It is therefore unreasonable for delictual liability to follow in France if a generating act or event is absent. The requirement of conduct's being "voluntary" involves a normative inquiry (as opposed to the factual inquiry as to whether or not there was conduct) which may lead to the negation of liability on the part of the defendant where his actions are essentially mechanical (as the mental ability to control his muscular movements is absent). It is submitted that in the French law of delict, the element of conduct is a requirement for delictual liability but in an attenuated form. This may be justified and reasonable. In French law, strict liability is more the norm and the aim is to protect and compensate the plaintiff. Defendants are in any case generally insured against delictual liability. We may take the hypothetical example that X, while sleepwalking, shoots at Y, injuring him. Y as an innocent victim sustains injury and harm. It may therefore be reasonable and justified if the plaintiff receives compensation for his injury or loss. In South African law X would not be held delictually liable, as his conduct was involuntary (fault is also absent). The only instance in South African law where the voluntariness of conduct is ineffectual in negating delictual liability is if there was some prior negligent or intentional conduct on the part of the defendant that subsequently led to his involuntary conduct. 181 In respect of omissions, a failure to act positively in preventing harm, for example by warning a bee-keeper that he is spraying insecticide which will affect the bees, 182 or failing to provide adequate supervision and inspection at a stadium resulting in the death of a spectator, 183 is unreasonable. 184 The influence of reasonableness on the requirement of a generating act or event in French law is therefore implicit.

179
See Van Dam European Tort Law 57; Van Gerven, Lever and Larouche Tort Law 555-556. 180 In order to limit the scope of this contribution, strict liability in French law will not be discussed. The influence of reasonableness in French law for wrongful culpable conduct stemming from omissions from a comparative perspective will be discussed in a later contribution still to be published (see fn 1).

Conclusion
In all the jurisdictions discussed in this contribution, some form of conduct, whether in the form of an omission or a commission, is required for liability in delict or tort law. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. The requirement of conduct is explicitly referred to in South African law and is recognised as a separate element of liability. In French law this requirement goes beyond human behaviour to encompass a generating act or event. In Anglo-American law too, even though conduct is not explicitly referred to as a requirement in the torts of trespass to a person and the tort of negligence, it must be present in order to ground liability.
As shown in South African, English and American law, the conduct must generally be voluntary. An exception applies in American law where a person's mental impairment or illness does not nullify conduct. If the conduct is involuntary, for example, where the conduct is considered mechanical, then there is no conduct and it is unreasonable to hold the wrongdoer liable. In situations where a person suffers some kind of disability, such as a sudden heart attack or a sudden blackout not caused by his own fault, then the conduct is not voluntary and fault is absent. If the defendant forgets to take his medication or deliberately does not take it thereby leading to a blackout, the principle of "prior fault" applies and the defendant may be held liable. Thus, it may be considered unreasonable to hold the person with such a condition liable, whether the element of conduct or fault is found to be absent. French law, on the other hand, does not require the conduct to be voluntary in order to ground liability under Articles 1382 to 1383 of the CC. Even though the reasonableness of this may be questioned, it may be understood in the light of the French pro-victim stance, the aim of compensating the victim, and the tendency to prefer strict liability over fault liability. 185

South Africa
Gabellone

United Kingdom
Collins