Abstract

Keywords

American law; conduct; commission; delict; English law; French law; involuntary; omission; reasonableness; South African law; tort; voluntary.

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1 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 contributions1 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 conduct2 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 law4 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

Kingdom represent the common law family,7 while France represents the civil law family.8 Zweigert and Kӧtz9 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.

2 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

English common law and Roman-Dutch law.14 It is for this reason, coupled with South Africa's adoption of a written constitution15 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, adjudicators25 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

common law may play roles in determining delictual liability or liability in tort law.26 The French law of delict is based primarily on the French Civil Code of 1804. The precedent system is not followed in the French law of civil procedure. Thus French adjudicators need not refer to prior decisions.27

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. Fletcher29 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.

3 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).31 The act or omission generally must have been committed by a human being32

or a juristic person such as a close corporation or company,33 and the act must be voluntary.34

Voluntariness refers to the person's mental ability to control his muscular movements.35 A person's conduct need not be reasonable or desired in order to be voluntary.36 There are certain recognised conditions which may result in an act’s being regarded as involuntary. For example, absolute compulsion,37 being unconsciousness or in a state of sleep,38 extreme intoxication,39 reflex muscular movements, black-outs,40 fits,41 severe emotional pressure,42 heart attacks,43 hypnosis, and mental impairments,44 are all regarded as conditions which may render one's actions involuntary while in such condition.45 Automatism in South African law is the well-known defence which refutes the imputation that an act or omission was voluntary.46 The defence of automatism will not succeed if the defendant negligently or intentionally created the situation in which he claims to have

behaved involuntarily.47 With regard to the alleged negligent conduct of the defendant, what must be determined "is whether the reasonable person in the position of the defendant would have foreseen the possibility of the ensuing harm while in a state of automatism and would have prevented such harm".48 For example, if a defendant who is prone to epileptic fits forgets to take his medication one morning and it later transpires that he suffered an epileptic fit while driving, thereby causing an accident,49 he cannot rely on automatism. The courts take into account the defendant's conduct prior to the state of automatism.50 A reasonable person in the position of the defendant would have taken his medication, thus preventing the occurrence of a fit which resulted in the ensuing harm.51 In trying to

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 causa53 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

human conduct and it may be reasonable to hold the defendant liable, provided all the other elements of a delict are present too.60

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.

4 The influence of reasonableness on conduct in English law

4.1 The intentional torts of trespass61 to the person

The general requirements for trespass to the person are direct,62 positive, intentional conduct,63 resulting in immediate harm, but damage need not be

proven.64 With regard to trespass to the person, the aim is to protect the claimant's legally recognised interest in his person from wrongful interference by the defendant which may lead to compensation.65 Thus interference with a person may take place in the form of battery, assault, and false imprisonment.66

4.1.1 Battery67

Battery is an act by the "defendant that directly and intentionally" causes harm to the claimant through some kind of unlawful, non-consensual, undesired, physical contact.68 According to the requirements, there must be direct, physical, "hostile"69 contact which is not consented to.70 Bodily contact will not be considered hostile if it conforms to the ordinary, generally acceptable contact that occurs in everyday life, such as brushing against someone in a crowded corridor.71 There must be a voluntary,72 intentional,

positive act by the defendant73 and the consequences need not be foreseeable.74

For example, in Morris v Marsden75 the defendant (a schizophrenic) attacked the defendant and claimed that because of his condition he did not understand the consequences of his conduct. The defendant was found liable in the tort of battery as his actions were voluntary at the time the tort was committed. Stable J76 stated that if a person was in a complete state of automatism, which is in English law acting without fault in causing the harm, then he will not be held liable.77

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.

4.1.2 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 Thus there must be voluntary conduct (on the part of the defendant) which leads to the claimant's fear or reasonable anticipation of imminent, unlawful violence by the defendant.79 Actual physical contact is not required. Thus if X points a gun at Y and misses the shot at Y, then X has committed assault, but if Y gets shot then it is battery.80

Inciting words are usually not considered as assault, but in R v Ireland81 the House of Lords held that verbal threats received telephonically leading the plaintiff to reasonably believe that the threats would be carried out

immediately qualified as an assault.82 In Read v Cocker83 the defendant was found liable for assault when he made a gesture and threatened to break the plaintiff's neck if he did not leave the shop.84

The influence of reasonableness on the requirement of some form of voluntary, positive conduct on the part of the defendant which leads to the claimant's reasonable apprehension of imminent battery is explicit. It would also be unreasonable to hold the defendant liable for involuntary conduct. Furthermore, if conduct on the part of the defendant is absent, then there is no tort and it would be unreasonable to hold the defendant liable.

4.1.3 False imprisonment

False imprisonment refers to the act of the defendant who intentionally and directly "causes the claimant's confinement within an area delimited by the defendant".85 The conduct must usually consist of a voluntary, positive act,86 and must be intentional,87 direct and immediate.88

The influence of reasonableness is implicit on the requirement of positive conduct on the part of the defendant that leads to the confinement of the plaintiff. It would be unreasonable to hold the defendant liable if there was

no voluntary, intentional, positive act on the part of the defendant which leads to the confinement of the plaintiff.

4.2 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 fault-related 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

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 act94 and is synonymous with the term "omission" used in South African Law. As stated above95 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.

5 The influence of reasonableness on conduct in American law

5.1 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

5.1.1 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

to harm or offend" on the part of the defendant.109 Examples of battery include instances where the defendant shoots or beats a spouse; 110 spits on the plaintiff's face;111 pushes the plaintiff aggressively even though the plaintiff is not physically harmed;112 kisses the plaintiff without consent;113 touches the plaintiff's clothing,114 body115 or hair when not wanted to do so;116 snatches an object from the plaintiff's hand;117 intentionally pulls a chair from underneath the plaintiff as she is about to sit resulting in her falling to the floor;118 and where the defendant provides medical treatment which involves physical contact without consent, even if the treatment was intended to save the patient's life.119

The influence of reasonableness on conduct in the tort of battery is implicit. There must be positive conduct on the part of the defendant in the form of touching or contact with the plaintiff. Contact is interpreted widely and may occur directly or indirectly. The conduct must be voluntary. That is, the defendant must be able to mentally control his muscular movements when there is contact with the plaintiff. Thus, if the conduct is involuntary then there is no act and it is unreasonable to hold the defendant liable. If the contact is accidental then intention is absent and it is unreasonable to hold

the defendant liable for battery. The tort of negligence may, however, be applicable.

5.1.2 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",

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 Medley136 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.

5.1.3 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

indirect manner.138 The defendant must intend139 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.

5.2 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 alcohol150 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 al154 point out that this was the way the law developed and the person with a mental impairment or insane person is still judged according

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 Bublick159 refer to two cases that have applied as exceptions to the general rule. In one of them a court in Wisconsin160 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 York161 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 impairment162 or insanity163 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. Even though reasons have been provided, and holding such person to the

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.

6 The influence of reasonableness on conduct in French law

6.1 Fait générateur (relating to the requirement of conduct) in Articles 1382 to 1383 of the French Civil Code166 (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.

In order to ground liability under Articles 1382 to 1383 of the CC, it does not matter whether the conduct was voluntary or not. Thus an involuntary act by the defendant causing injury to the plaintiff will not negate liability. For example, in Lignon v Avril,169 an inexperienced volleyball player accidentally fell down during the course of the game coincidentally kicking another player and injuring him. The injured player sued the inexperienced player. The Cour de Cassation170 held that the inexperienced player was liable even though his conduct was involuntary.171

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 Larouche173 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

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.

7 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

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Dobbs DB, Hayden PT and Bublick EM Hornbook on Torts 2nd ed (West St Paul MN 2016)

Epstein Cases and Materials on Torts

Epstein RA Cases and Materials on Torts 8th ed (Aspen Law New York 2004)

Fletcher 1985 Harv L Rev

Fletcher GP "The Right and the Reasonable" 1985 Harv L Rev 949-982

Galand-Carval "France"

Galand-Carval S "France: Causation under French Law" in Spier J (ed) Unification of Tort Law: Causation (Kluwer Law The Hague 2000) 53-62

Galand-Carval "Liability for Damage Caused by Others"

Galand-Carval S "Liability for Damage Caused by Others under French Law" in Spier J (ed) Unification of Tort Law: Liability for Damage Caused by Others (Kluwer Law The Hague 2003) 85-103

Giliker Tort

Giliker P Tort 5th ed (Sweet & Maxwell London 2014)

Green and Cardi "Basic Questions of Tort Law"

Green MD and Cardi WJ "Basic Questions of Tort Law from the Perspective of the USA" in Koziol H (ed) Basic Questions of Tort Law from a Comparative Perspective (Jan Sramek Verlag Wien 2015) 431-514

Hahlo and Kahn South African Legal System

Hahlo HR and Kahn E The South African Legal System and its Background (Juta Cape Town 1968)

Himonga and Nhlapo African Customary Law

Himonga C and Nhlapo RT (eds) African Customary Law in South Africa: Post-Apartheid and Living Perspectives (Oxford University Press Cape Town 2014)

Jones "Negligence"

Jones MA "Negligence" in Jones MA (gen ed) Clerk and Lindsell on Torts 21st ed (Sweet & Maxwell London 2014) 439-607

Keeton et al Prosser and Keeton on the Law of Torts

Keeton P et al Prosser and Keeton on the Law of Torts 5th ed (West St Paul MN 1984)

Koziol "Comparative Conclusions"

Koziol H "Comparative Conclusions" in Koziol H (ed) Basic Questions of Tort Law from a Comparative Perspective (Jan Sramek Verlag Wien 2015) 685-838

Loubser and Midgley Law of Delict

Loubser MM and Midgley JR (eds) The Law of Delict in South Africa 3rd ed (Oxford University Press Cape Town 2018)

Lunney, Nolan and Oliphant Tort Law

Lunney M, Nolan D and Oliphant K Tort Law: Text and Materials 6th ed (Oxford University Press Oxford 2017)

McBride and Bagshaw Tort Law

McBride NJ and Bagshaw R Tort Law 5th ed (Pearson Education New York 2015)

Moréteau "Basic Questions of Tort Law"

Moréteau O "Basic Questions of Tort Law from a French Perspective" in Koziol H (ed) Basic Questions of Tort Law from a Comparative Perspective (Jan Sramek Verlag Wien 2015) 3-98

Mullender 2005 MLR

Mullender R "The Reasonable Person, the Pursuit of Justice, and Negligence Law" 2005 MLR 681-695

Murphy "Trespass to the Person"

Murphy J "Trespass to the Person" in Jones MA (gen ed) Clerk and Lindsell on Torts 21st ed (Sweet & Maxwell London 2014) 1091-1173

Neethling and Potgieter Law of Delict

Neethling J and Potgieter JM Law of Delict 7th ed (LexisNexis Durban 2015)

Peel and Goudkamp Winfield and Jolowicz on Tort

Peel E and Goudkamp J Winfield and Jolowicz on Tort 19th ed (Sweet & Maxwell London 2014)

Shapo Principles of Tort Law

Shapo M Principles of Tort Law 4th ed (West Academic Eagan MN 2016)

Steele Tort Law

Steele J Tort Law 3rd ed (Oxford University Press Oxford 2014)

Van Dam European Tort Law

Van Dam C European Tort Law 2nd ed (Oxford University Press Oxford 2013)

Van der Merwe and Olivier Onregmatige Daad in die Suid- Afrikaanse Reg

Van der Merwe NJ and Olivier PJJ Die Onregmatige Daad in die Suid- Afrikaanse Reg 6th ed (JP van der Walt Pretoria 1989)

Van der Walt and Midgley Principles of Delict

Van der Walt JC and Midgley JR Principles of Delict 4th ed (LexisNexis Durban 2016)

Van Gerven, Lever and Larouche Tort Law

Van Gerven W, Lever JF and Larouche P Tort Law (Hart Oxford 2000)

Visser "Compensation for Pecuniary Loss"

Visser D "Compensation for Pecuniary Loss – Actio Legis Aquiliae" in Du Bois F (ed) Wille's Principles of South African Law 9th ed (Juta Cape Town 2007) 1094-1160

Witting Street on Torts

Witting CA Street on Torts 14th ed (Oxford University Press Oxford 2015)

Zweigert and Kötz Introduction to Comparative Law

Zweigert K and Kötz H Introduction to Comparative Law 3rd ed (Clarendon Press Oxford 2011)

Case law

France

CA Lyon 16 December 1988, JCP 1990 II 21510 observations Collomb

Cass civ 2 3 July 1991 90-13158, Bull civ 1991 II 210 111

Cass civ 2 14 June 1972 71-11318, Bull civ 1972 II 180 146, 1973 Jur 423 note Lepointe

South Africa

Gabellone v Protea Assurance Ltd 1981 4 SA 171 (O)

Government v Marine and Trade Insurance Co Ltd 1973 3 SA 797 (D)

Jooste v Minister of Police 1975 1 SA 349 (E)

Molefe v Mahaeng 1999 1 SA 562 (SCA)

R v Dhlamini 1955 1 SA 120 (T)

R v Mkize 1959 2 SA 260 (N)

S v Arnold 1985 3 SA 256 (C)

S v Chretien 1981 1 SA 1097 (A)

S v Goliath 1972 3 SA 1 (A)

S v Mahlinza 1967 1 SA 408 (A)

S v Makwanyane 1995 6 BCLR 665 (CC)

Wessels v Hall and Pickles (Coastal) (Pty) Ltd 1985 4 SA 153 (C)

United Kingdom

Collins v Wilcock 1984 1 WLR 1172

F v West Berkshire HA 1990 2 AC 1, 1989 2 All ER 545

Fowler v Lanning 1959 1 QB 426

Frieman v Home Office (No 2) 1983 All ER 589

Iqbal v Prison Officers Association 2010 QB 732

Letang v Cooper 1965 1 QB 232

Mansfield v Weetabix 1988 1 WLR 1263 (CA)

Morris v Marsden 1952 All ER 925

R v Ireland 1998 AC 147

Read v Cocker 138 ER 1437

Roberts v Chief Constable of the Cheshire Constabulary 1999 WLR 662

Scott v Shepherd 1773 96 ER 525

Sterman v EW & W J Moore Ltd 1970 1 QB 596

Vaughan v Menlove 3 Bing NC 468, 132 Eng Rep 490 (CP 1837)

Wainwright v Home Office 2004 2 AC 406

Waugh v James K Allen Ltd 1964 2 Lloyd's Rep 1

Weaver v Ward 1617 80 ER 284

Wilson v Pringle 1987 QB 237

United States of America

Adams v Wal-Mart Stores Inc 324 F 3d 935, 941 (7th Cir 2003)

Baker v Joyal 4 AD 3d 596, 771 NYS 2d 269 (2004)

Bowie v Murphy 271 Va 127, 624 SE 2d 74 (2006)

Breunig v American Family Ins 45 Wis 2d 536, 173 NW 2d 619, 49 ALR 3d 179 (1970)

Cain v McKinnon 552 So 2d 91 (Miss 1989)

Chavez v Thomas & Betts Corp 396 F 3d 1088, 1101 (10th Cir 2005)

Creasy v Rusk 730 NE 2d 659 (Ind 2000)

Cullison v Medley 570 NE 2d 27 (Ind 1991)

Collins v Straight Inc 748 F 2d 916 (4th Cir 1984)

Davies v Butler 95 Nev 763, 602 P 2d 605 (1979)

Draper v Baker 61 Wis 450, 21 NW 527 (1884)

Field v Philadelphia Elec Co 388 Pa Super 400, 417, 565 A 2d 1170, 1178 (1989)

Fisher v Carrousel Motor Hotel Inc Tex (1967) 424 SW 2d 627

Frechette v Welch (1st Cir 1980) 621 F 2d 11

Fuerschbach v Southwest Airlines Co 439 F 3d 1197 (10th Cir 2006)

Garratt v Dailey 46 Wash 2d 197, 279 P 2d 1091 (1995)

Geddes v Daughters of Charity of St Vincent de Paul Inc 348 F 2d 144 (5th Cir 1965)

Goodrich v Blair 132 Ariz 459, 646 P 2d 890 (1982)

Haber v County of Nassau 577 F 2d 322 (2nd Cir 1977)

Hamilton v Kinsey Ala 1976 337 So 2d 344

Hancock-Underwood v Knight 670 SE 2d 720 (Va 2009)

Holdorf v Holdorf 1918 185 Iowa 838, 169 NW 737

Howle v PYA/Monarch Inc 288 SC 586, 344 SE 2d 157 (1986)

Johnson v Bollinger 86 NC App 1, 356 SE 2d 378 (1987)

Johnson v Ramsey County, 424 NW 2d 800 (Minn Ct App 1988)

Jolley v Powell Fla App 1974 299 So 2d 647

Kuhn v Zabostsky 1967, 9 Ohio St 2d 129, 224 NE 2d 137

Lamb v State 93 Md App 422, 438, 613 A 2d 402, 409 (1993)

Lutzkovitz v Murray 339 A 2d 64, 93 ALR 3d 321 (Del 1975)

McCraney v Flanagan 47 NC App 498, 267 SE 2d 404 (1980)

McGuire v Almy 8 NE 2d 760 (Mass 1936)

Mims v Boland 110 Ga App 477, 138 SE 2d 902 (1964)

Moore v Preenell 1977 38 Md App 243, 379 A 2d 1246

Muslow v AG Edwards & Sons Inc 509 So 2d 1012, 1021 (La Ct App 1987)

Noble v Noble 761 P 2d 1369 (Utah 1988)

Noguchi v Nakamura 2 Haw App 655, 638 P 2d 1383 (1982)

Piggly-Wiggly Alabama Co v Rickles 1925 212 Ala 585, 103 So 860

Polmatier v Russ 537 A 2d 468 (Conn 1988)

Raess v Doescher 883 NE 2d 790 (Ind 2008)

Rogers v Loews L'Enfant Plaza Hotel 526 F Supp 523 (DDC 1981)

Selmeczki v New Mexico Dep't of Corrections 139 NM 122, 129 P 3d 158 (Ct App 2006)

Sindle v New York City Transit Auth 33 NYS 2d 183, 307 NE 2d 245 (1973)

Snouffer v Snouffer 621 NE 2d 879 (Ohio Ct App 1933)

Stockett v Tolin 791 F Supp 1536 (SD Fla 1992)

Stockwell v Gee 1926 121 Okl 207, 249 P 389

Strain v Irwin 1915 195 Ala 414, 70 So 734

Swope v Columbian Chems Co 281 F 3d 185 (5th Cir 2002)

Taylor v Johnston 985 P 2d 460 (Alaska 1999)

Townsdin v Nutt 1877 19 Kan 282

Webbier v Thoroughbred Racing Protective Bureau Inc 105 RI 605, 614, 254 A 2d 285, 290 (1969)

White v University of Idaho 797 P 2d 108, 109 (Idaho 1990)

Whitley v Anderson 37 Colo App 486, 551 P 2d 1083 (1976), aff'd, 194 Colo 87, 570 P 2d 525 (1977)

Williams v Hays 157 NY 541, 52 NE 589 (1899)

Williams v Kearby 775 P 2d 670 (Kan App 1989)

Williams v Southern Calif Gas Co 176 Cal App 4th 591, 98 Cal Rptr 3d 258 (2009)

Legislation

France

French Civil Code of 1804

Germany

Bϋrgerliches Gesetzbuch (Civil Code)

South Africa

Constitution of the Republic of South Africa, 1996

United States of America

Constitution of the USA

List of Abbreviations