Contributory negligence

(a) Developments in continental Europe

Finally, a word about contributory negligence. Here, too, we have a situation where the conservative attitude of 19th-century legal science ultimately did not prevail against a more equitable dispensation advocated by 18th-century natural lawyers.

Mommsen, Windscheid and most of the other pandectists embraced the so-called principle of "culpa-cornpensation". Digesta 50, 17, 203³⁰⁸ was their dogmatic starting point:³⁰⁹ everybody has to carry the consequences of his own fault. As a result of this "most natural"³¹⁰ precept, the victim of a wrong was bound to lose his claim for damages if he could have avoided the injury through the exercise of proper care. This entailed the old, though somewhat rough-and-ready, notion of "all or nothing". Nineteenth-century legal practice was dominated by it, too.³¹¹ Thus, for instance, the courts dismissed the claim of a traveller against an innkeeper for the loss of his suitcase, because he had handed over the suitcase to one of the innkeeper's servants without specifically drawing attention to its valuable content;³¹² or the action of a horseman who crashed into a coach while charging down a road at night.³¹³ Towards

^M>,> Mertens, op. cit.. note 304. nn. 215 sqq.

**' RGZ 85. 185 (1861.

³¹¹⁷ Boberg. Delict, p. 146.

³⁰* Cf. supra, p. 1030 (note 2121.

³⁰⁴ Of Friedrich Mommsen. Zur Lehre von deni Interesse (18551. p. 158; Windscheid/Kipp. § 258. 2; cf. further Werner Rother. Hafttmgsbeschrankung ini Schadensrecht (19651. pp. 30 sqq.; Aumann. op. cit.. note 76. pp. 80 sqq.

³¹¹¹ Mommsen, op. cit.. note 309. p. 157.

³¹ See Rother. op. cit.. note 309. pp. 35 sqq.; Aumann. op. cit.. note 76.

pp. 168 sqq.

^3E RGZ 1. 83 sqq.

³¹³ RG. in: (18891 44 SeitffA., n. 86. Both the owner of the coach and the horseman had infringed several police regulations.

the end of the 19th century, the courts tended to balk at the idea that even the slightest negligence on the part of the plaintiff should have such drastic consequences. They therefore decided the matter on a preponderance of fault (the old culpa maior doctrine),^[5425] but still according to the hallowed "all or nothing". The BGB, however, went the decisive step further. It codified a solution that completely broke with jomanistic doctrine and that had first been expounded by Christian Wolff. Dealing with the position of a depositor who had negligently chosen a careless depositee (who, in turn, had duly lost the object deposited with him), Wolff had advocated an apportionment ot damages according to the relative degree of fault:

"Si deponens rem custodiendam committit homini negligent!, quem negligentem esse novit, vcl nosse poterat, ct res deposita ucgligcntia depositarii vel perit, vel detenoratur; damnum inter deponentem et depositariism dividendum in ratione culpac utnusque."^[5426]

Though Wolff acknowledged that his idea, appealing in theory, might be difficult to realize in practice,^[5427] ⁶ it was adopted by the Austrian^[5428] and Swiss^[5429] legislators as well as by French legal science.^[5430] ^{^[5431] The BGB ultimately followed suit and provided as follows:}

"If any fault of the injured party has contributed to the occurrence of the damage, the duty to compensate and the extent of the compensation to be made depend upon the circumstances, especially upon the extent to which the injury was caused predominantly by the one or the other party."-¹²"

(b) South African law

In South Africa contributory negligence ceased to be a complete defence only with the introduction of the Apportionment of Damages Act in 1956.^[5432] Unlike in modern German law, the damages awarded are to be reduced, not in proportion to the causal contribution of the parties, but to the degree of fault displayed by them.^[5433] Does that mean that the determination of the degree of the plaintiff's fault (say 70 %) will automatically determine the degree of the defendant's fault (30 %)?^[5434] Or does one first have to assess the degree of both parties' faults separately (by asking how far each of them deviated from the norm of the diligens paterfamilias — which may be 90 % in the one and 60 % in the other case; or 20 % as opposed to 40 %) before proceeding to compare the results?^{^[5435]} This is only one of a whole variety of practical problems^{^[5436]} raised by this rather clumsily drafted enactment.^{^[5437]}'” Nevertheless, the new dispensation is generally regarded as much more satisfactory than the old uncompromising common-law approach—which was based, incidentally, not on Roman and Roman-Dutch authority but on a wholesale reception of the English law of contributory negligence^{^[5438]} (including the notorious "last opportunity" rule as a device to mitigate the harshness of the "all or nothing"). "The law relating to the subject of contributory negligence which is applied by our courts", said Watermeyer CJ,^{^[5439]} when it was too late,

"has been taken over from English law and it is seldom that any Roman-Dutch authority is referred to.

In fact there is plenty ot authority in Roman law... and also in Roman-Dutch law.... It may be that if Roman-Dutch authorities had been more fully referred to in earlier South African cases our law of contributory negligence might have developed on different lines from the English law."

Without that source of inspiration, however, South African law became completely entrapped by the "abracadabra"^[5440] of the causal approach to contributory negligence.^[5441]" Ultimately, therefore, only the legislator was able to save the day.^[5442]

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Contributory negligence

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