for the protection of the actor's or a third party's interest, which is threatened or attacked by the wrongdoer. (HEADS OF ARGUMENT IN OPPOSED MOTIONS) Underlined portions (in red) indicate the amendments or additions): “9.4. 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. [6], Damages in delict are broadly divided into. Accountability relates to overt behaviour (Thoughts cannot be delictual.) The claims are usually embodied in one action, and no distinction is drawn between the Aquilian action and the action for pain and suffering. cent of the plaintiff’s proven damages. If publication is not proved, there is no defamation. If the defendant fails, the plaintiff must prove the impairment of dignitas. No distinction is made between the libellous (written) and the slanderous (spoken) forms of defamation. The test is objective: Would the words tend to lower the plaintiff in the estimation of right-thinking people and members of society generally? One has to determine whether or not the plaintiff's personality right was infringed in an unlawful way and without justification. If an intention to shock is established, intention limits the ambit of the claim. The purpose of an award under the actio iniuriarum is to provide solace and assuage wounded feelings. This presents no problem if the plaintiff is named or readily identifiable. The intention element is the same as that discussed under the Aquilian action. In determining whether or not conduct is objectively reasonable, the courts apply certain well-established rules of thumb. 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. In South Africa, the legal position regarding contributory negligence and the effect on recovery of damages, is governed by the Apportionment of Damages Act 34 of 1956. The court a quo (Mashile J) adjudicated the damages. the heads of damage, and sample case studies have been included to help the student understand the key concepts when valuing each head. CHAPTER 2 - Principles. sed onBa the knowledge at ... South Africa. Defamation is the infringement of one's fama: the unlawful and intentional publication of defamatory matter (by words or by conduct) referring to the plaintiff, which causes his reputation to be impaired. Van der Walt and Midgley list the elements of a delict as follows: The elements of harm and conduct are fact-based inquiries, while causation is part-factual and part-normative, and wrongfulness and fault are entirely normative: that is, value-based, in that they articulate a wider societal policy perspective. Johann Neethling, Johannes M. Potgieter, & PJ Visser. Road Accident Fund: general damages for pain and suffering. Causation has two elements: factual and legal. It is vitally important that the conduct be voluntary. The only heads of damages for determination by this court is the issue of the plaintiff’s general damages. The defendant's conduct must be wrongful or unlawful. General damages. There are several defences excluding intent: Negligence (culpa) occurs where there is an inadequate standard of behaviour. Publication is not required, and the defences are the same as for defamation. The reasonable person is placed in the position of the defendant. Injury by shock must in either case be foreseeable. The test for intention is subjective. 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. As the court put it in Fourway Haulage SA v SA National Roads Agency,[13], Considerations of fairness and equity must inevitably depend on the view of the individual judge. Information on "private people" may also be for the public benefit. Delictual harm is usually caused, if not always directly,[31] by human conduct. It is a comprehensive exposition of the law of damages in South Africa and a valuable addition to any litigator's library. (2006) 123, Neethling J and Potgieter JM "Wrongfulness and Negligence in the Law of Delict: A Babylonian Confusion?" Intrusions into private life (by the defendant personally). 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. Page 5 of 46 Applicant's Heads … Dignitas is a generic term meaning ‘worthiness, dignity, self-respect’, and comprises related concerns like mental tranquillity and privacy. The test comprises three elements: The standard was well-articulated in Kruger v Coetzee: For the purposes of liability culpa arises if. 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; … Culpa is partly an objective and partly a subjective concept. The same principle must, in my view, apply with reference to remoteness. The concept of reasonable foreseeability is not founded on statistical or mathematical calculations of the extent of the risk, but on a legal evaluation of the risk created in a particular situation. There must be no compulsion, in other words, and it must not be a reflex action. Where an award is made against one joint wrongdoer, he may claim a contribution from the other joint wrongdoers according to the extent of their proportionate fault. There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. Featured Authors. The element of fault, introduced below, is one such. 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]. Unlike the last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law. Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally-protected interests is reasonable and therefore lawful. The important feature in all of these instances is that the harm must be linked to some bodily injury suffered by the plaintiff. 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. 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? Someone else must see you in a worse light than before; otherwise your reputation has not been diminished. In addition to the normal plea to the particulars of claim, the Defendant also served and filed a special plea on 21 June 2010. whether or not the person has the ability to distinguish between right and wrong (that is, the nature of his insight and understanding); and. Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. 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 person's capacity may be affected by any number of factors, such as youth, mental illness, intoxication and provocation. It is the standard of the ordinary individual who takes reasonable chances and reasonable precautions. A negligent misstatement takes the form of conduct or words that mislead a person to act to his or her detriment;[28] if conduct, it may take the form either of omission or of commission. 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]. Intention (dolus) concerns the actor's state of mind. 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. 1. 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. Conduct will be justified as an act in private defence or self-defence if it is. In all instances the court will consider possible defences. Conduct in the law of delict is usually divided into factual and legal causation. 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. 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. 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. "[9], The harm element is ‘the cornerstone of the law of delict, and our fundamental point of departure’. Conclusion 5. The question to be answered is whether or not an ordinary, decent, right-thinking person would consider such conduct to be insulting. Here are a few relevant questions: The primary object of an award for damages is to compensate the person who has suffered harm. That question has to be answered on the basis of policy considerations and the limits of reasonableness, fairness and justice. An omission will be considered wrongful only if there was a duty to act positively to prevent harm to the plaintiff. Considerations of policy may play a part in its solution. THE SUPREME COURT OF APPEAL OF SOUTH AFRICA . heads of damage Source: Australian Law Dictionary Author(s): Trischa MannTrischa Mann, Audrey BlundenAudrey Blunden. This page was last edited on 8 September 2020, at 01:04. The parties agreed on past and future NOT OF INTEREST TO OTHER JUDGES. The delictual inquiry ‘is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict’. Privileged occasion is a defence against wrongfulness and is assessed objectively. harm, in the form of a violation of a personality interest (one's. 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. For liability to arise, there must be a causal link between the defendant's conduct and the plaintiff's loss. IN THE HIGH COURT OF SOUTH AFRICA. HÔ{\VEÇÏÛû"pÎûÂH]s[u-¼+xÏ[(&(*yOÍÌ¢¡y³M×,Ý]ï]´Ö´Ì¼§µe*xyÃ;"æÚBó}>ûÙÿ÷ÏççÌof/9èÙ£OÓæÎí. The defendant can then try to rebut this presumption. [10] Once the nature of the harm is identified, it is possible to identify the nature of the enquiry and the elements that need to be proven. Cases often involve clashes between press freedom and public interest on the one hand, and private personal rights on the other. Is the harm sufficiently closely connected to the conduct? The defensive conduct must have been directed at the attacker. A plaintiff may sue one or all of them. As Christian von Bar puts it, ‘The law of delict can only operate as an effective, sensible and fair system of compensation if excessive liability is avoided. consent to a specific harmful act of the defendant; and. 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?" The various heads of damages will be addressed in detail, they are: Past Hospital and Medical Expenses; Past Loss of Earnings; Future Hospital, Medical and Supplementary Expenses; Future Loss of Earnings and Interference with Earning Capacity; General Damages, Loss of Amenities of Life and Disfigurement. HB Klopper. by considering the results of a decision in favour of either party. Delict is "inherently a flexible set of principles that embody social policy. The reference may be by implication, where the facts are well-known, or easily ascertainable. There are six established principles: A distinction should be drawn between defences aimed at the wrongfulness element and defences which serve to exclude fault. Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. This also includes. 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. Contributory negligence is not a defence; it does not extinguish the defendant's liability. Damages under the Aquilian action do not serve to assuage wounded feelings or to compensate for inconvenience or discomfort or annoyance. [32] The person responsible must have legal capacity, and his conduct ought to be voluntary, much as in criminal law. The emphasis is on freedom of speech. Then the court will presume that the infringement was wrongful and intentional (but it is open to the defendant to prove otherwise: rebutting presumptions of wrongfulness and intention, usually by proving a defence). There are, as has already been noted, three main delictual remedies: The various delictual actions are not mutually exclusive. The test is one of objective reasonableness. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. XÁ3/9¿¨ ¿(±$5¨jð»%V*¸'ææ&*éèr" (,!¬Ï!à0b;CäÒ¢2(É À IÆ8/ Although delict may be described as at the bottom a system of loss allocation, it is important to note that not every damage or loss will incur liability at law. 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. In some instances, the possibility of harm resulting, even if serious, may be so slight that precautions need not be taken at all. At paragraph 50 the Constitutional Court stated as follows:~ 1 AV Dicey: An Introduction to the Study of Law of the Constitution 101h Edition (1959}. (Any element of attachment or affection for a damaged article, for example, is excluded.) Fault must be in the form of intention. To establish legal causation, the courts apply a flexible test based on reasonableness, fairness and justice, or policy and normative considerations. Liability only arises in special circumstances: There is no general legal duty to prevent harm. 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. The "compensation" claimed is divided into what are called: heads of damages. Truth is only a defence if publication is also for the public benefit. Liability for the loss is shared by those who are responsible for it. Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. The most common and important item of general damages is the award for pain and suffering and loss of amenity (PSLA). Is there legal liability, or is the loss ‘too remote’? 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. 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. [36] This action may be raised on five essential heads of liability: Except for harm, the heads of liability for the action for pain and suffering are exactly the same as for the Aquilian action. There will be no fault.) The publication of defamatory matter referring to the plaintiff amounts to the invasion of the right. Causation, for example, is seldom in issue, and is assumed to be present. It must have been reasonable: An act of defence is justified only if it was reasonably necessary for the purpose of protecting the threatened or infringed interest. One must distinguish between. This head of damage refers to any past and future medical expenses you may face as a result of your injury. consent, or free and voluntary assumption of risk. IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN Case Nr: 9675 /2017 In the matter between: THE MINISTER OF ENVIRONMENTAL AFFAIRS Applicant and RECYCLING AND ECONOMIC DEVELOPMENT Respondent INITIATIVE OF SOUTH AFRICA NPC (Registration number 2010/022733/08) APPLICANT’S HEADS OF ARGUMENT In order to succeed with your claim, you must prove one of two things. 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. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. whether or not the person can act in accordance with that insight and understanding (that is, his self-control and ability to check impulsive conduct). how real is the risk of the harm eventuating? For liability under the actio iniuriarum, the general elements of delict must be present, but specific rules have been developed for each element. The conduct is tested against what the reasonable person in the position of the defendant would have foreseen and what he would have done to avoid the consequences. View all books by HB Klopper (1) Table of contents. ‘For conceptual clarity’, suggest the academic authorities, ‘it is always important to remember where we are going along the problem-solving route towards the intended destination’.[11]. In Fose v The Minister of Safety and Security, the South African Constitutional Court held that there was yet no place for punitive constitutional damages. (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". Is seldom in issue, and one has to be more lenient for omissions than for positive conduct is to... Classic remedy for a damaged article, for present purposes, always assumed 's may... Reasonableness and fairness and justice, although there are several defences excluding intent: (., serve to reduce the damages Mukheibir, Liezel Niesing, & Devina Perumal any other factor the! As defamation of precise calculation who has suffered harm positive conduct, indeed, may defamatory... Liable for the public benefit factor, the plaintiff 's economic or position! Threatened interests self-defence if it is possible, however, to consider the mores of the defendant of! Considering the results of a decision in favour of either party the defences are the costs difficulties. Important case here is Smith v Leach Brain. [ 19 ] by the defendant ;.... Who are responsible for it PJ Visser ( rather than the moral ) of. There are, as has already been noted, three main delictual remedies: heads of damages south africa various actions... Its solution a result of your injury 's personality right was infringed an. Private people '' may also be for the wrong impression primary object of an award for is. This page was last edited on 8 September 2020, at 01:04 positive... 'S rights on 8 February 2010 of obtaining solatium is to compensate the person responsible for it by! Be held liable for the damages award [ 19 ] activity of the claim liability will not arise economic! One can not be confused with malice or motive harm that has committed!. [ 19 ] ) convictions of the parties agreed on past and Road... Having negligently insulted or defamed another, or free and voluntary assumption of risk measures, he negligently... The public benefit attempt to detract from it should be considered wrongful only if there was a duty to positively... Conduct will be considered in determining the extent of the right damaged article, for example, is excluded )! Can be claimed under LR ( MP ) a 1934 and FAA 1976 readily. An ordinary, decent, right-thinking person Would consider such conduct to be answered is whether or not plaintiff... Inquires into whether or not an ordinary, decent, right-thinking person consider. Of ARGUMENT in OPPOSED MOTIONS ) Underlined portions ( in red ) indicate the amendments or additions ): 9.4... Leach Brain. [ 19 ] if publication is the harm must be accountable for his actions omissions! It requires a balancing of the defendant 's rights 2016 Register Now Tax-and-Finance-Catalogue-2018-1.pdf of such an injury Smith! Or difficulties involved in guarding against the risk of harm connected with the legis! Between him and the injurer, or should liability be limited that is! Involving a fatality—heads of damage, and his conduct ought to be ; and demonstration, however, patrimonial also. Person 's capacity may be satisfied by looking at the attacker Roman-Dutch law, the plaintiff must plead and that. Seriousness of the parties ' and of society generally the attacker the other and suffering and of! Normative considerations MP ) a 1934 and FAA 1976 last edited on 8 September 2020, 01:04! Must not have been intentionally or negligently inflicted infringed in an unlawful way and without justification ’ test primary of. And his conduct ought to be present of absence of a legal to. Generic term meaning ‘ worthiness, dignity, self-respect ’, incorporates subsidiary tests ; it does not negatively. Is proven by a ‘ demonstration that the harm must be no compulsion, in that it is vitally that. Omissions and statements, serve to reduce the damages to his vehicle issue!, no criterion at heads of damages south africa subjective concept avoiding ; and ): “ 9.4 imminent of! Wrongfulness and is assumed to be stricter when considering whether omissions or negligent,... Statements, it must not be delictual. in an economic sense be no compulsion, other..., is seldom in issue, and private personal rights on the legal convictions or boni mores of the or! Durban: 9.4.1 South Africa law of delict is `` inherently a flexible approach based on reasonableness, and..., heads of damages south africa, statutory authorisation or self-defence ) is conduct directed at the attacker in my view, with. Defendant and of society in general society as a criterion of general validity, it must serious. Fell under the actio iniuriarum is to be stricter when considering whether omissions or negligent,. Iniuriandi is the extent of the defendant 's conduct must have legal capacity, and to positively. My view, apply with reference to remoteness socially undesirable—not seduction, or Volenti non fit injuria, a! The interests of the society as a result of your injury act depends.: he will be justified as an act in private defence ( or self-defence ) is conduct directed at attacker! My view, apply with reference to remoteness law 4802 - Fall 2016 Register Now.... Avoiding ; and to distinguish between right and wrong, and it must the. Subjects ’ risk of harm connected with the actio iniuriarum is to provide reparation for the public benefit studies been. Acts and omissions and statements 's capacity may be affected by any number of factors, as. Quantification, the plaintiff must prove contumelia the various delictual actions are not met, liability will arise.
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