oa Comparative and International Law Journal of Southern Africa - The role of fault in social security law: a critical comparative study

Volume 21, Issue 2
  • ISSN : 0010-4051



Four principal stages can be distinguished in the development of civil liability in the course of time, in various countries - (a) classic tort law and contractual liability, securing an important place for the element of fault; (b) those same laws blended with private liability insurance, in which the element of fault (negligence) loses much of its importance; (c) the system of no-fault liability and insurance, in which, again, the fault, excluding criminal negligence and intentional fault, of the involved parties serves no role; (d) the system of social security, which has taken and is intended to take an additional step forward in that here - and only here - even criminal negligence and fault in the form of intent, as we have seen, do not, or should not, have any but the most limited effect. Due to the above characteristics of the last two systems, it should be pointed out that the system of no-fault liability and insurance, despite its name (no-fault) does not ignore fault, rather it ignores negligence, that is it in effect is a "no-negligence" system, while only social security aspires to ignore all fault, including intentional or criminal acts or omissions, this last system being therefore more no-fault than what is customarily called "no-fault".

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