Law of Delict

In order to prove liability in negligence, the plaintiff must prove that the defendant owed him\her a duty of care. The plaintiff must also prove that the duty of care has been infringed and that the breach occurred when the defendant failed to meet the standard of care required for reasonable conduct. Courts have recognised certain characteristic that affects the reasonable person standard, and so have adopted the standard to establish a realistic expectation of what is a reasonable in circumstances. Qualities of reasonable person are found in these three extremes, it must be emphasized that the reasonable person serves as the legal personification of these qualities which this community expect from its member in their daily conduct with one another.

Children may be negligent but they are not held to be the same standard of conduct as adults. A child’s conduct is measured against the conduct expected of a child of similar age, intelligence and experience. Unlike the standard of adults, the accountability of children is determined on a subjective basis such as the mental ability of the child<<footnote>> In this sense the standard is less strict than that of an adult because children normally do not engage in high-risk activities of those of adults. A matter which has received considerable attention in our law is the question of whether the fact that the wrongdoer is a child should play a role in the application of the reasonable person test. As stated above, this question only arises in the case of children who are seven years and older, because the law deems a child under the age of seven to be culpa incapax .

Before 1965 the test of negligence of children in some cases was taken to be that of the reasonable child of the child defendant‘s age and intellectual development. In 1965 the Appellate division held in Jones No v Santam Bpk <<footnote>>, that the test for negligence is always objective. In other words, once court has...