The test is objective: Would the words tend to lower the plaintiff in the estimation of right-thinking people and members of society generally? [4] The classic remedy for a delict is compensation: a claim of damages for the harm caused. There are, however, certain requirements: Damages in respect of non-patrimonial loss do not serve a compensatory function, for such loss does not have an economic or pecuniary value. The elements of liability under the actio iniuriarum are as follows: Under the actio iniuriarum, harm consists in the infringement of a personality right: Infringements of a person's corpus include assaults, acts of a sexual or indecent nature, and ‘wrongful arrest and detention’. Because it is such a wide concept, its infringement must be serious. XÁ3/9¿¨ ¿(±$5¨jð»%V*¸'ææ&*é‘èr" (,!¬Ï!à0b;C€äÒ¢2(“‘ɘ À IÆ8/ Privileged occasion, consent, bona fide mistake, statutory authorisation. This includes insult (iniuria in the narrow sense), adultery, loss of consortium, alienation of affection, breach of promise (but only in a humiliating or degrading manner), violation of chastity and femininity (as in the cases of peeping toms, sexual suggestions in letters, indecent exposure, seduction, wrongful dismissal of an employee in humiliating terms and unwarranted discrimination on grounds of sex, colour or creed). HB Klopper. The principle to be applied is one of objective reasonableness. Causation, for example, is seldom in issue, and is assumed to be present. It is the standard of the ordinary individual who takes reasonable chances and reasonable precautions. the degree or extent of the risk created by the actor's conduct; the gravity of the possible consequences if the risk of harm materialises; the burden of eliminating the risk of harm. The object of damages in South African law is to put the claimant, as far as money makes it possible, in the same position as he/she would have been in if the damage-causing event had not occurred. Fault must be in the form of intention. A.1 Heads of Damages – Primer (updated 130331) Introduction. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. for the protection of the actor's or a third party's interest, which is threatened or attacked by the wrongdoer. ‘Sound policy’, wrote Oliver Wendell Holmes, Jr, ‘lets losses lie where they fall, except where a special reason can be shown for interference’. This is the case, for example, in International Shipping v Bentley, where there was an auditing error, and in Mafesa v Parity, with a ‘crutch mishap’. ... 00. The general principle is that a defendant is not liable in damages in respect of the publication of defamatory material if it amounts to fair comment on a matter of public interest. The test for intention is subjective. In the same way, defamation damages are aggravated by outrageous conduct or evil motive of the defamer. (2006) 123, Neethling J and Potgieter JM "Wrongfulness and Negligence in the Law of Delict: A Babylonian Confusion?" Though it presents itself as a criterion of general validity, it is, in reality, no criterion at all. Until I came to the Bar I never realised that a Judge might not even need to hear oral argument from you if you have made out a proper case and covered most of your opponent’s submissions in your Heads of Argument. Delict in Roman law fell under the law of obligations. It is possible, however, to consider the mores of a particular section of the community in some instances. The comment must be based upon facts expressly stated or clearly indicated in the document or speech which contains the defamatory words, or clearly indicated or incorporated by reference. [41] It is the wrongful, intentional and serious disturbance of another's right to enjoy personal peace and privacy and tranquillity. imputations against moral character, arousing hatred, contempt and ridicule; impairments that cause shunning and avoiding; and. If one has a valid defence, one's conduct is justified, and one has not behaved wrongfully or unlawfully. Factual causation is proven by a ‘demonstration that the wrongful act was a causa sine qua non of the loss’. General damages are a head on their own. Dignitas is a generic term meaning ‘worthiness, dignity, self-respect’, and comprises related concerns like mental tranquillity and privacy. Not every insult is humiliating; one must prove contumelia. The South African law of delict engages primarily with ‘the circumstances in which one person can claim compensation from another for harm that has been suffered’. For liability to arise, there must be a causal link between the defendant's conduct and the plaintiff's loss. There are four basic considerations in each case which influence the reaction of the reasonable person in such situations: If the magnitude of the risk outweighs the utility of the conduct, the reasonable person would take measures to prevent the occurrence of harm. The only heads of damages for determination by this court is the issue of the plaintiff’s general damages. CHAPTER 2 - Principles. As already indicated, Mr Frost, plaintiff’s counsel, has argued for general damages to be awarded in the claimed amount of R500 000,00 and for a 10% contingency deduction in the amount that is awarded to plaintiff for loss of future earning capacity. failure to take the reasonable precautions. Conclusion 5. Information on "private people" may also be for the public benefit. It is important to prevent it from becoming a disruptive factor in an economic sense. 28 pages. Disruption of person's peaceful existence. The violence used in defence must not exceed what is reasonably necessary to avert the threatened danger: An act of necessity may be described as lawful conduct directed against an innocent person for the purpose of protecting an interest of the actor or of a third party (including the innocent person) against a dangerous situation, which may have arisen owing to the wrongful conduct of another or the behaviour of an animal, or through natural forces. Objectively reasonable conduct accords with the legal convictions or boni mores of the society. Liability for the loss is shared by those who are responsible for it. [3] The Defendant is opposing the action. Instead the emphasis is on providing satisfaction or solace to the plaintiff in so far as it is possible for an award of money to do so. Various tests for legal causation have been suggested but the Appellate Division has opted for a flexible umbrella criterion, which determines the closeness of the link according to what is fair and reasonable and just. In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it? Damages – facial injuries, ... head injury comprising a traumatic brain injury with considerable frontal lobe dysfunction and other soft tissue injuries and lacerations of the scalp. Contributory negligence is not a defence; it does not extinguish the defendant's liability. In the absence of a defence or any other factor, the harm caused is actionable. Public disclosures concerning private life (by the defendant to others). (The person engaging in the conduct must also be compos mentis or in sound mind and of sober senses, not unconscious or intoxicated, for example. The defendant can oppose defamation with a right of opinion, if his opinion is sincere and based on facts (see Freedom of speech in South Africa). Association of Sout/1 Africa: In re ex parte President of Republic of South Africa 2000 (2) SA 674 (CC); 19. the gravity or seriousness of the possible harmful consequences that are risked. Government of South Africa to respect, protect, promote and fulfil each and every child’s constitutional right to basic education due to the dysfunction in arguably about 80% of public schools as exacerbated by deficient implementation of laws, policies, practices and plans aimed at delivery of that right. Unless this standard of accountability is secured, he will not be accountable for his actions or omissions. Where the conduct takes the form of omissions or negligent statements, it is usually not wrongful even if physical harm results. The test requires ‘an adequate and consistent level of care on the part of all legal subjects’. The guidelines for determining reasonable foreseeability were formulated in Lomagundi Sheetmetal and Engineering v Basson: What a prudent man would or would not do, or would or would not foresee in any particular case, must depend on a very wide variety of circumstances and few cases are ever identical in the relevant circumstances. Voluntary conduct entails no compulsion; the conduct must not have been reflex; the person must have been compos mentis, or of sound mind and sober senses, not unconscious, intoxicated, etc. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. The purpose of an award under the actio iniuriarum is to provide solace and assuage wounded feelings. It is, for present purposes, always assumed. Truth is only a defence if publication is also for the public benefit. The important feature in all of these instances is that the harm must be linked to some bodily injury suffered by the plaintiff. The claims are usually embodied in one action, and no distinction is drawn between the Aquilian action and the action for pain and suffering. There are, as has already been noted, three main delictual remedies: The various delictual actions are not mutually exclusive. If the actor fails to take such measures, he acts negligently. The South African damages regime is compensatory in nature, therefore, victims are limited to claiming only the actual damage suffered as a result of the unlawful conduct. Similarly, joint wrongdoers are jointly and severally liable for the loss they have caused. The test comprises three elements: The standard was well-articulated in Kruger v Coetzee: For the purposes of liability culpa arises if. Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. obligations arise from three causes namely delict, contract and various other causes, notable unjustified enrichment, conduct on the part of the defendant which is, a causal connection between the conduct and the plaintiff's harm; and. The law divides these damages into categories, sometimes referred to as “heads of damages”: Non-pecuniary Loss: Also referred to as “pain and suffering”, this represents the court’s attempt to place a number on all the intangibles consequences to you of the accident. Examples include self-defence, necessity, justification, statutory authority and consent. Whether or not conduct is wrongful is a question of social policy; the court is required to make a value judgment as to its acceptability. There are two main components of intention: Animus iniuriandi arises when both requirements—direction of will and knowledge of wrongfulness—are satisfied. Malicious damage to property is the unlawful and intentional damaging of property that belongs to another person and this is a crime in South African law. by balancing the interests of the parties; by looking at the relationships which exist and the consequences of the defendant's conduct; and. For the action to succeed, a claim must be based on physical pain, mental distress, shock, loss of life expectancy, loss of life amenities, inconvenience and discomfort, disability or disfigurement (and the humility and sadness which arise therefrom). Only material allegations need be substantially true, except if fraud or crime or dishonesty is alleged. consent, or free and voluntary assumption of risk. For patrimonial loss to be actionable in the case of emotional shock, it must have been intentionally or negligently inflicted. Fair comment cannot be wrongful. These are determined by the nature and consequences of the conduct: An omission, as noted previously, is not prima facie wrongful, even when physical damage is caused. The emphasis is on freedom of speech. pure economic harm, which is not connected to any physical injury or damage to property. 1.2 Points of departure and exclusions. One will be held responsible for the intentional results of one's conduct even if it is occasioned by an unintended method (although this is subject, of course, to the presence of the other elements of liability). You must either prove that you have a contractual claim against that person because of breach of contract on his or her part; or that you have a civil claim against that person, because of a delict being committed against you. [5] Roman-Dutch law, based on Roman law, is the strongest influence on South Africa's common law, where delict also falls under the law of obligations. Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. [5] The damages were claimed under four separate heads: past hospital, medical and related expenses; future hospital, medical and related expenses; future loss of earnings and general damages. how real is the risk of the harm eventuating? Unless one is in this sense accountable, one is not accountable for one's actions or omissions; one is, in other words, culpa incapax. Conduct is usually wrongful if it causes harm to person or property. The mores of the society as a whole are relevant in determining whether or not a statement is defamatory. whether or not the person has the ability to distinguish between right and wrong (that is, the nature of his insight and understanding); and. patrimonial damages, including medical costs, loss of income and the cost of repairs, which in turn fall under the heading of special damages; non-patrimonial damages, including pain and suffering, disfigurement, loss of amenities and injury to personality, which fall under the heading of general damages; … consent to a specific harmful act of the defendant; and. Culpa is partly an objective and partly a subjective concept. The test, again, is objective: Would the ordinary reasonable person hearing or reading the statement understand the matter to refer to the plaintiff? One must distinguish between. There are six established principles: A distinction should be drawn between defences aimed at the wrongfulness element and defences which serve to exclude fault. The principles are the same as those applicable to the Aquilian action. The defendant's conduct must be wrongful or unlawful. Conduct in the law of delict is usually divided into factual and legal causation. endstream endobj 7410 0 obj <>stream where one has control of a potentially dangerous object or animal; where there is a contractual assumption of responsibility; where there exists a statutory duty (although this is also contingent on its nature); and. An omission will be considered wrongful only if there was a duty to act positively to prevent harm to the plaintiff. It was adopted in England as well as South Africa, ... State fully, the head of damages and its total value that Brad would be able to claim against the wrongdoer to get his vehicle repaired. Conduct usually takes the form of statements, either oral or in writing; nevertheless, other forms of conduct, such as physical contact or gestures, could also arise. ‘When a delict has been committed, one person is obliged to compensate another for harm that has been suffered’ (Loubser. The most common and important item of general damages is the award for pain and suffering and loss of amenity (PSLA). Road Accident Fund: general damages for pain and suffering. heads of damage Source: Australian Law Dictionary Author(s): Trischa MannTrischa Mann, Audrey BlundenAudrey Blunden. In considering the appropriate approach to wrongfulness, I said that any yardstick which renders the outcome of a dispute dependent on the idiosyncratic view of individual judges is unacceptable. If publication is not proved, there is no defamation. [2] Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.[3]. Fagan A "Rethinking wrongfulness in the law of delict" (2005) 122, Midgley R "Revisiting Factual Causation" in Glover GB (ed), Midgley R "The nature of the enquiry into concurrence of actions" (1990) 107, Millard D "Extended Damage: A Comparison of South African and Belgian Law" 2009, Neethling J "The conflation of wrongfulness and negligence: Is it always such a bad thing for the law of delict?" It must be a wrongful and overt act. This page was last edited on 8 September 2020, at 01:04. The plaintiff must plead five elements and include a prayer for damages: It must be the (a) wrongful and (b) intentional (c) publication (d) of defamatory material (e) which refers to the plaintiff. Some advantage must accrue to the public. (2007) 70, Nugent RW "Yes, it is always a bad thing for the law: A reply to Professor Neethling" (2006) 123, Scott J "Railroad Operator’s Failure to Protect Passenger Against Attack on Train not Negligent". The Supreme Court of Appeal (SCA) has accepted the conditio sine qua non, or ‘but-for’ test, as the one to be applied. As can be seen from the outline of the essential elements of liability under the actio iniuriarum, causation is not an important issue in this kind of case. For liability under the actio iniuriarum, the general elements of delict must be present, but specific rules have been developed for each element. The same principle must, in my view, apply with reference to remoteness. cent of the plaintiff’s proven damages. Exaggeration is allowed, but not if calculated to convey the wrong impression. The objective-reasonableness test may be satisfied by looking at the foreseeability of such an injury. GAUTENG LOCAL DIVISION, JOHANNESBURG. Money is considered an adequate replacement for the lost patrimony. The test is subjective. if the harm does eventuate, what is the extent of the damage likely to be; and. A relevant question is whether the defendant's wrongful conduct caused, or materially contributed to, the harm sustained by the plaintiff.[35]. ANSWER: He will be able to institute an action with the actio legis Aquiliae for the damages to his vehicle. THE SUPREME COURT OF APPEAL OF SOUTH AFRICA . The role of the person against whom the defensive conduct is directed is an important factor in determining whether defence or necessity is being pled. Once factual causation is proved, a second enquiry arises: Is the wrongful act linked sufficiently closely or directly to the loss for legal liability to ensue? This presents no problem if the plaintiff is named or readily identifiable. It is vitally important that the conduct be voluntary. Where the risk of harm is very small, or the harm not really serious, the reasonable person will not foresee the possibility of harm to others. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. Cases often involve clashes between press freedom and public interest on the one hand, and private personal rights on the other. One therefore cannot invoke the justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. This head of damage refers to any past and future medical expenses you may face as a result of your injury. In other words, one must have the capacity to be held accountable for one's conduct. The Roman-Dutch action for pain and suffering (Afrik aksie weens pyn en lyding), or action for solatium, developed in the 17th century partly from the Aquilian action, partly from the use of reparative fines (or zoengeld, compositie) under Dutch customary law. That is why I believe we should resist the temptation of a response that remoteness depends on what the judge regards as fair, reasonable and just in all the circumstances of that particular case. The flexible test, or ‘elastic test for legal causation’, incorporates subsidiary tests; it does not replace them. Both are heading north towards South Africa out of the worst of the strong winds and big seas, sailing slowly north to shelter and assess their possibilities of repair. [32] The person responsible must have legal capacity, and his conduct ought to be voluntary, much as in criminal law. [14], In summary, delictual liability requires a factual causal link between wrongful and culpable conduct, on the one hand, and loss suffered on the other. The court inquires into whether or not the defendant's conduct is socially acceptable. The reasonable person is placed in the position of the defendant. Where damages cannot be computed exactly, a court may exercise its own judgment in the matter, provided it has a factual basis for so doing. There is, therefore, an important distinction between the two. Now, however, patrimonial loss also includes monetary loss resulting from injury to the nervous system and pure economic loss. Publication is the element that distinguishes defamation from other injuriae. It must not have been a trivial emotional experience. fault or blameworthiness on the part of the defendant. Featured Authors. There are five essential elements for liability in terms of the actio legis Aquiliae: One obvious prerequisite for liability in terms of the law of delict is that the plaintiff must have suffered harm; in terms of the Aquilian action, that harm must be patrimonial, which traditionally meant monetary loss sustained due to physical damage to a person or property. the heads of damage, and sample case studies have been included to help the student understand the key concepts when valuing each head. Reasonable foreseeability cannot be regarded as the single decisive criterion for determining liability, but it can indeed be used as a subsidiary test in the application of the flexible criterion. When a court holds that conduct is wrongful, it makes a value judgment that, in certain categories of cases, particular people should be responsible for the harm they cause. The injured party must be foreseeable. No law based on rational principles can impose liability on each and every act of carelessness.’[7] There are, for this reason, in-built mechanisms in the South African law of delict to keep liability within reasonable limits. The SCA has consistently stated that the causation element involves a second aspect, legal causation or remoteness of damage, which is not concerned with causation so much as with restricting the causal effect of the defendant's conduct. The reference may be by implication, where the facts are well-known, or easily ascertainable. “I want to be able to continue my Vendée Globe”, said Simon, the 30-year-old from Les Sables d’Olonne who won La … and Claims involving a fatality—heads of damage for what can be claimed under LR(MP)A 1934 and FAA 1976. General damages. Heads of Damages – Primer Table of Contents Section A Canada’s Legal System: A Brief Introduction HB Klopper. The court exercises its own judgment in the matter and strives to determine awards which will be fair to the plaintiff and the defendant, as well as to the public at large, since such awards also serve to guide future awards. It is not for the public benefit, however, to publish matter which is only partially true, or to rake up the past: A person can reform. Damages for non-patrimonial loss, or solatium, do not serve a compensatory function, for such loss does not have an economic or pecuniary value. Animus iniuriandi is the intention (animus) to injure (iniuria) someone. In some instances, the possibility of harm resulting, even if serious, may be so slight that precautions need not be taken at all. If you have been in a motor vehicle accident on a South African road and the incident wasn’t caused solely by you, you are entitled to compensation with the state-supported insurance fund known as the Road Accident Fund (RAF). This involves two questions: The enquiry is purely subjective, focusing on the capacity of the specific individual, and is concerned with the mental, not the physical, capacity of a person. In respect of a claim in terms of the Aquilian action, there is only one function: to restore the plaintiff's patrimony and, as far as possible, to place him in the position he would have occupied in had the delict not been committed. Liability only arises in special circumstances: There is no general legal duty to prevent harm. If the plaintiff's negligent conduct contributes to the loss, that should be considered in determining the extent of the defendant's liability. This involves a balancing of the interests of the plaintiff, the defendant and of society in general. If its conditions are not met, liability will not arise. [4] The Plaintiff’s damages were computed and set out under the following heads of damages: CHAPTER 1 - Introduction. Considerations of policy may play a part in its solution. Unlike the last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law. A plaintiff may sue one or all of them. There will be no fault.) University of South Africa Law of damages LAW 4802 - Fall 2016 Register Now Tax-and-Finance-Catalogue-2018-1.pdf. It is important to remember that there is a distinction between the question of absence of voluntariness of conduct and that of accountability. [6], Damages in delict are broadly divided into. The plaintiff must plead and prove that he is the person defamed. There are exceptions to the requirement of knowledge of wrongfulness, as in the case of deprivation of liberty or wrongful arrest, which results in attenuated animus iniuriandi.[26]. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action.[29]. Impairments of professional or business reputation. The agreement between the parties that the defendant is liable to pay 100% of the loss of earnings to be suffered by K. is a separate head of damages which has no bearing on general damages. There is only one principle, the court found: To determine whether the plaintiff's damages are too remote from the defendant's act to hold the defendant liable therefor, considerations of policy (reasonableness, fairness and justice) should be applied to the particular facts of the case.[17]. The purpose of obtaining solatium is to provide reparation for the wrong; the award does not have a punitive purpose. In all instances the court will consider possible defences. assumption of the risk of harm connected with the activity of the defendant. 2. In some jurisdictions punitive damages are generally considered appropriate and deterrent punishment for malicious or egregious behaviour; and for the vindication and compensation of rights and freedoms violated. One of the reasons why the law distinguishes between different forms of conduct is that this affects the way the courts deal with the question of wrongfulness. The defensive conduct must have been directed at the attacker. The defendant can then try to rebut this presumption. Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. The sort of circumstances, however, which the Courts often look to in cases such as this in deciding what degree of foreseeability must be proved by the plaintiff before a defendant can be held responsible for the resultant damage are these: The magnitude of the risk created by the defendant (point 1. above) comprises two elements: If the likelihood of harm is relatively great, or the consequences serious, the possibility of harm will normally be reasonably foreseeable. Question has to determine whether or not the defendant to others ), example! 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