This presents no problem if the plaintiff is named or readily identifiable. For patrimonial loss to be actionable in the case of emotional shock, it must have been intentionally or negligently inflicted. 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. The question to be answered is whether or not an ordinary, decent, right-thinking person would consider such conduct to be insulting. In addition to the normal plea to the particulars of claim, the Defendant also served and filed a special plea on 21 June 2010. Featured Authors. To establish negligence, the law sets a standard of conduct (that of the diligens paterfamilias) and then measures the defendant's conduct against it. Privileged occasion is a defence against wrongfulness and is assessed objectively. Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. the gravity or seriousness of the possible harmful consequences that are risked. Again, the wrongfulness element is the same as that under the Aquilian action. 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 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 only heads of argument that I had seen at that stage, were those drafted by Senior Counsel, which were rather lengthy and dealt with complicated legal issues. 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’. Some of these are aimed at showing that the conduct was not unlawful.  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. There must be no compulsion, in other words, and it must not be a reflex action. for the protection of the actor's or a third party's interest, which is threatened or attacked by the wrongdoer. It is the same as dolus in criminal law. (These terms are usually interchangeable.) If you have incurred or will incur expenses for medical or rehabilitation treatment, physiotherapy, pharmaceuticals, medical aids, vehicle and home modifications, or any other reasonable out of pocket expense because of your injuries, then you are entitled to claim reimbursement for those expenses. Animus iniuriandi is the intention (animus) to injure (iniuria) someone. and Claims involving a fatality—heads of damage for what can be claimed under LR(MP)A 1934 and FAA 1976. consent to a specific harmful act of the defendant; and. 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 court inquires into whether or not the defendant's conduct is socially acceptable. Causation has two elements: factual and legal. There are two main components of intention: Animus iniuriandi arises when both requirements—direction of will and knowledge of wrongfulness—are satisfied. 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. 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; and. The following are examples: Falsity is not essential in defamation cases; the truth, indeed, may be defamatory. Objectively reasonable conduct accords with the legal convictions or boni mores of the society. It is important to prevent it from becoming a disruptive factor in an economic sense. the heads of damage, and sample case studies have been included to help the student understand the key concepts when valuing each head. pure economic harm, which is not connected to any physical injury or damage to property. REPUBLIC OF SOUTH AFRICA. There will be no fault.) CHAPTER 2 - Principles. In all instances the court will consider possible defences. No distinction is made between the libellous (written) and the slanderous (spoken) forms of defamation. Factual causation is proven by a ‘demonstration that the wrongful act was a causa sine qua non of the loss’. youth or emotional and intellectual immaturity; mental disease or illness, or emotional distress; direction of the will (the manner in which the will is directed): the likelihood or degree or extent of risk created by the conduct; and, the gravity of possible consequences; and, preventability, under which heading may fall. 28 pages. 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. 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’. Johann Neethling, Johannes M. Potgieter, & PJ Visser. The test is again of objective reasonableness: The conduct must be objectively offensive or insulting, such that it would have impaired the dignity of a person of ordinary sensitivities. Truth is only a defence if publication is also for the public benefit. 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. Privileged occasion, consent, bona fide mistake, statutory authorisation. Pain, suffering and loss of amenity A claimant is entitled to recover damages for any pain, suffering and loss of amenity (PSLA) caused by an accident. 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). It reflects the law's disapproval of the defendant's conduct. Conduct is usually wrongful if it causes harm to person or property. The test for intention is subjective. The principle to be applied is one of objective reasonableness. The only heads of damages for determination by this court is the issue of the plaintiff’s general damages. 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. bereavement damages for a limited category of people (see below and Practice Note: Claims involving a fatality—heads of damage—Fatal Accidents Act 1976) See Practice Notes: Law Reform or Fatal Accidents Act? The predominant head of general damages in personal injury claims is pain, suffering and loss of amenity although there are a number of other heads of general damages which must also be considered. 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). A.1 Heads of Damages – Primer (updated 130331) Introduction. There is an interplay between the elements of harm and wrongfulness, and a similar interaction between the way in which we determine harm and assess damages. Examples include self-defence, necessity, justification, statutory authority and consent. 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. They are another expression of the legal convictions of the society. If the actor fails to take such measures, he acts negligently. But an injuria or an infringement of a right of privacy could still be present. The claims are usually embodied in one action, and no distinction is drawn between the Aquilian action and the action for pain and suffering. Injury by shock must in either case be foreseeable. In the absence of a defence or any other factor, the harm caused is actionable. 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; … Two types of emergency situations may be found: A person cannot be at fault if he does not have the capacity to be at fault. The existence of a legal duty to act positively depends on the legal (rather than the moral) convictions of the community. Fault refers to blameworthiness or culpability, while culpa is fault in a broad sense, in that it includes dolus and culpa in the strict sense. 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. If this harm takes the form of patrimonial loss, one uses the Aquilian action; if pain and suffering associated with bodily injury, a separate action arises, similar to the Aquilian action but of Germanic origin; finally, if the harm takes the form of injury to a personality interest (an injuria), the claim is made in terms of the actio injuriarum. The test is objective. The applicable defences are different, however. Accountability is a prerequisite for fault: The person at fault, to be at fault, must be culpae capax, having the ability to know the difference between right and wrong and to act accordingly. In order to succeed with your claim, you must prove one of two things. Invasion of privacy is ‘wrongful and intentional interference with another's right to seclusion’.  The courts take a flexible approach based on considerations of reasonableness and fairness and justice, although there are misgivings. Impairments of professional or business reputation. The element of fault, introduced below, is one such. Liability for the loss is shared by those who are responsible for it. 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. Money is considered an adequate replacement for the lost patrimony. It requires a balancing of the parties' and of society's interests. Such loss is non-patrimonial, in that it is intangible and does not impact negatively on the plaintiff's economic or monetary position. GAUTENG LOCAL DIVISION, JOHANNESBURG. 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. 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 has to determine whether or not the plaintiff's personality right was infringed in an unlawful way and without justification. Conduct relates to overt behaviour, so that thoughts, for example, are not delictual. Justification (truth and public benefit); that the plaintiff is a public figure (but not if the disclosure concerned private issues); previous publicity habits. Fourway Haulage SA v SA National Roads Agency, Lomagundi Sheetmetal and Engineering v Basson, AA Mutual Insurance Association Ltd v Nomeka, ABP 4x4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd, Administrateur, Natal v Trust Bank van Africa Bpk, Administrateur, Transvaal v Van der Merwe, Administrator-General, South West Africa v Kriel, African Flying Services (Pty) Ltd v Gildenhuys, Bester v Commercial Union Verskeringsmaatskappy van Suid-Afrika Bpk, Cape Town Municipality v Allianz Insurance Co Ltd, Carmichele v Minister of Safety and Security, CGU Insurance v Rumdel Construction (Pty) Ltd, Chartaprops 16 (Pty) Ltd & Another v Silberman, Christian Education South Africa v Minister of Education, Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd, Consolidated Textile Mills Ltd v Weiniger, Constantia Versekeringsmaatskappy Bpk v Victor NO, Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck, D and D Deliveries (Pty) Ltd v Pinetown Borough, Damba v AA Mutual Insurance Association Ltd, Dantex Investment Holdings (Pty) Ltd v Brenner, Durban's Water Wonderland (Pty) Ltd v Botha, East London Western Districts Farmers' Association v Minister of Education and Development Aid, Ex Parte Minister van Justisie: In re S v Van Wyk, Faiga v Body Corporate of Dumbarton Oakes, Fairchild v Glenhaven Funeral Services Ltd, Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd, General Accident Insurance Co SA Ltd v Summers, Southern Versekeringsassosiasie Bpk v Carstens NO, General accident Insurance Co SA Ltd v Nhlumayo, General Accident Insurance Co South Africa Ltd v Xhego and Others, General Accident Versekeringsmaatskappy SA Bpk v Uijs NO, Government of the Republic of South Africa v Basdeo, Greater Johannesburg Transitional Metro-Council v ABSA Bank, Griffiths v Mutual and Federal Insurance Co Ltd, Guardian National Insurance Co Ltd v Van Gool, Hoffa NO v SA Mutual Fire and General Insurance Co Ltd, In re Polemis v Furness, Withy and Company, International Shipping Co (Pty) Ltd v Bentley, Jameson's Minors v Central South African Railways, Johannesburg Municipality v African Realty Trust, Jonker v Rondalia Assurance Corporation of SA Ltd, Kemp v Santam Insurance Co Ltd and Another, Kgaleng v Minister of Safety and Security, Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd, Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd, Local Transitional Council of Delmas v Boshoff, Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson, Mafesa v Parity Versekeringsmaatskappy Bpk (In Likwidasie), Minister of Communications v Renown Food Products, Minister of Education and Culture (House of Delegates) v Azal, Minister of Safety and Security and others v Lorraine Craig, Minister of Safety and Security v Carmichele, Minister of Safety and Security v Hamilton, Minister of Safety and Security v Luiters, Minister of Safety and Security v Road Accident Fund and Another, Minister of Safety and Security v Van Duivenboden, Minister van Veiligheid en Sekuriteit v Kyriacou, Mphosi v Central Board for Co-operative Insurance Ltd, Muller v Mutual and Federal Insurance Co Ltd, Ngubane v South African Transport Services, Ntanjana v Vorster and Minister of Justice, O'Keefe v Argus Printing and Publishing Co Ltd, Overseas Tankship (UK) Ltd v Morts and Docks Engineering Co Ltd (The Wagon Mound 1), Premier, Western Cape v Faircape Property Developers (Pty) Ltd, Reyneke v Mutual and Federal Insurance Co Ltd, Santam Versekeringsmaatskappy v Byleveldt, Sea Harvest Corporation v Duncan Dock Cold Storage, Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA, SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd, Southern Insurance Association Ltd v Bailey NO, Southern Insurance Association v Bailey NO, Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd, Standard Chartered Bank of Canada v Nedperm Bank Ltd, Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA, Thoroughbred Breeders’ Association of South Africa v Price Waterhouse, Transnet Ltd v Sechaba Photocon (Pty) Ltd, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd, Union Government (Minister of Railways and Harbours) v Warneke, Union National South British Insurance Co Ltd v Vitoria, Van der Spuy v Minister of Correctional Services, Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust, as Amicus Curiae), Weber v Santam Versekeringsmaatskappy Bpk, Wells and Another v Shield Insurance Co Ltd and Others, Wessels v Hall and Pickles (Coastal) (Pty) Ltd, Workmen's Compensation Commissioner v De Villiers, Zimbabwe Banking Co v Pyramid Motor Corporation, Compensation for Occupational Injuries and Diseases Act, Institution of Legal Proceedings against Certain Organs of State Act, Onregmatigheidsbewussyn as element van animus iniuriandi by iniuria, National Environmental Management Act, 107 of 1998, National Environmental Management: Biodiversity Act, 10 of 2004, National Environmental Management: Integrated Coastal Management Act, 24 of 2008, National Environmental Management: Protected Areas Act, 57 of 2003, https://en.wikipedia.org/w/index.php?title=South_African_law_of_delict&oldid=977289467, Creative Commons Attribution-ShareAlike License. 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