Should the law confirm that the defendant caused the harm, or should liability be limited? Conduct is usually wrongful if it causes harm to person or property. Animus iniuriandi is the intention (animus) to injure (iniuria) someone. Exaggeration is allowed, but not if calculated to convey the wrong impression. The principle to be applied is one of objective reasonableness. how real is the risk of the harm eventuating? A person acts in "private defence," and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. 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. For liability to arise, there must be a causal link between the defendant's conduct and the plaintiff's loss. In order to succeed with your claim, you must prove one of two things. This head of damage refers to any past and future medical expenses you may face as a result of your injury. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. If one has a valid defence, one's conduct is justified, and one has not behaved wrongfully or unlawfully. imputations against moral character, arousing hatred, contempt and ridicule; impairments that cause shunning and avoiding; and. 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. (2006) 123, Neethling J and Potgieter JM "Wrongfulness and Negligence in the Law of Delict: A Babylonian Confusion?"  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. Unless one is in this sense accountable, one is not accountable for one's actions or omissions; one is, in other words, culpa incapax. failure to take the reasonable precautions. Similarly, joint wrongdoers are jointly and severally liable for the loss they have caused. Invasion of privacy is ‘wrongful and intentional interference with another's right to seclusion’. It is possible, however, to consider the mores of a particular section of the community in some instances. There is, therefore, an important distinction between the two. The Supreme Court of Appeal (SCA) has accepted the conditio sine qua non, or ‘but-for’ test, as the one to be applied.  Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.. XÁ3/9¿¨ ¿(±$5¨jð»%V*¸'ææ&*éèr" (,!¬Ï!à0b;CäÒ¢2(É À IÆ8/ The existence of a legal duty to act positively depends on the legal (rather than the moral) convictions of the community. 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. Aggravated damages then awarded may compensate where the loss the claimant actually suffered is exacerbated or aggravated by the conduct of the defendant to ensure that they are compensated in full measure. To establish negligence, the law sets a standard of conduct (that of the diligens paterfamilias) and then measures the defendant's conduct against it.  The Plaintiff’s damages were computed and set out under the following heads of damages: It must be a wrongful and overt act. 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. Some advantage must accrue to the public. 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. 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. Instead, the emphasis is on providing satisfaction to the plaintiff, in so far as it is possible for an award of money to do so. 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. 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. 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. NOT REPORTABLE. Cases often involve clashes between press freedom and public interest on the one hand, and private personal rights on the other. Here are a few relevant questions: The primary object of an award for damages is to compensate the person who has suffered harm. Contributory negligence is not a defence; it does not extinguish the defendant's liability. There are several defences excluding intent: Negligence (culpa) occurs where there is an inadequate standard of behaviour. The test comprises three elements: The standard was well-articulated in Kruger v Coetzee: For the purposes of liability culpa arises if. 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. Delict in Roman law fell under the law of obligations. Once it has been established that a reasonable person would have foreseen the possibility of harm, the question arises of whether or not he would have taken measures to prevent the occurrence of the foreseeable harm. 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. An omission will be considered wrongful only if there was a duty to act positively to prevent harm to the plaintiff. 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. ‘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’.. Such loss is non-patrimonial, in that it is intangible and does not impact negatively on the plaintiff's economic or monetary position. Intention (dolus) concerns the actor's state of mind. Injury by shock must in either case be foreseeable. 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.  JC Van der Walt and Rob Midgley define a delict ‘in general terms [...] as a civil wrong’, and more narrowly as ‘wrongful and blameworthy conduct which causes harm to a person’. This is a limited preview — please sign in or subscribe to learn everything we know about the term “ head of damage ”. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. Unlike the last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law. 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? In determining whether or not conduct is objectively reasonable, the courts apply certain well-established rules of thumb. The most common and important item of general damages is the award for pain and suffering and loss of amenity (PSLA). Conduct is therefore negligent if a reasonable person in the same position as the defendant would have foreseen the possibility of harm, and would have taken steps to avoid it, and if the defendant failed to take such steps. 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. sed onBa the knowledge at ... South Africa. (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 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.  The person responsible must have legal capacity, and his conduct ought to be voluntary, much as in criminal law. This is also known as the ‘but-for’ test. 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. ... 00. The test, again, is objective: Would the ordinary reasonable person hearing or reading the statement understand the matter to refer to the plaintiff? 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. Information on "private people" may also be for the public benefit. Conclusion 5. The reasonable person is placed in the position of the defendant. the gravity or seriousness of the possible harmful consequences that are risked. The test is one of objective reasonableness. Money is considered an adequate replacement for the lost patrimony. ‘Sound policy’, wrote Oliver Wendell Holmes, Jr, ‘lets losses lie where they fall, except where a special reason can be shown for interference’. 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. One must, Intention should not be confused with malice or motive. Public disclosures concerning private life (by the defendant to others). Only material allegations need be substantially true, except if fraud or crime or dishonesty is alleged. (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". 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. (HEADS OF ARGUMENT IN OPPOSED MOTIONS) Underlined portions (in red) indicate the amendments or additions): “9.4. If publication is not proved, there is no defamation. It must not have been a trivial emotional experience. 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). Damages under the Aquilian action do not serve to assuage wounded feelings or to compensate for inconvenience or discomfort or annoyance. The following are examples of how this standard is met: Nervous or psychiatric injury is sustained through the medium of the eye or the ear without direct physical impact: that means, a mental rather than a physical injury. CHAPTER 2 - Principles. Justification (truth and public benefit); that the plaintiff is a public figure (but not if the disclosure concerned private issues); previous publicity habits. The courts' tendency is to be more lenient for omissions than for positive conduct. The concept of punitive damage, which is the damages system of the United States (US) and so often dramatised on television, is not part of the South African law of damages. The purpose of an award under the actio iniuriarum is to provide solace and assuage wounded feelings. “special damages” as damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable, unless the parties when entering into the contract, actually contemplated that such damages would likely be caused from a breach of the contract and agreed that the defaulting party will be liable in the event of such breach. NOT OF INTEREST TO OTHER JUDGES. Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. The court a quo (Mashile J) adjudicated the damages. 28 pages. For liability under the actio iniuriarum, the general elements of delict must be present, but specific rules have been developed for each element. University of South Africa Law of damages LAW 4802 - Fall 2016 Register Now Tax-and-Finance-Catalogue-2018-1.pdf. Not every insult is humiliating; one must prove contumelia. There will be no fault.) 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; … ANSWER: He will be able to institute an action with the actio legis Aquiliae for the damages to his vehicle. There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. The only heads of damages for determination by this court is the issue of the plaintiff’s general damages. Conduct relates to overt behaviour, so that thoughts, for example, are not delictual. 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 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. 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}. pure economic harm, which is not connected to any physical injury or damage to property. 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. If the actor fails to take such measures, he acts negligently. 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. 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. There must be some positive act or commission, either physical or in the form of a statement or comment, or else an omission: a failure to do or say something. The courts scrutinise such cases very carefully, as special factors need to exist for liability to arise. The applicable defences are different, however. Though it presents itself as a criterion of general validity, it is, in reality, no criterion at all. CASE NO: 12601/2017. 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. Factual causation is proven by a ‘demonstration that the wrongful act was a causa sine qua non of the loss’. The test for intention is subjective. 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. For patrimonial loss to be actionable in the case of emotional shock, it must have been intentionally or negligently inflicted. A.1 Heads of Damages – Primer (updated 130331) Introduction. assumption of the risk of harm connected with the activity of the defendant. 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. 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. Accountability relates to overt behaviour (Thoughts cannot be delictual.) The requirements, as set out in Delange v Costa, are as follows: If the wrongful act is proved, intention is presumed.  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. 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. General damages are a head on their own. Factors excluding liability include. This also includes. (Any element of attachment or affection for a damaged article, for example, is excluded.) 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. 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. the heads of damage, and sample case studies have been included to help the student understand the key concepts when valuing each head. The talem qualem rule (or ‘thin-skull’ or ‘egg-skull’ rule) provides that, in the words of Smit v Abrahams, ‘the wrongdoer takes his victim as he finds him’. The flexible test, or ‘elastic test for legal causation’, incorporates subsidiary tests; it does not replace them. It is the standard of the ordinary individual who takes reasonable chances and reasonable precautions. Quantification of Each Head of Damage 3.1 Medical and Other Expenses Incurred 3.2 Future Medical and Other Expenses Incurred 3.3 Loss of Past Income or Earnings 3.4 Loss of Earning Capacity 3.5 Loss of Profit 3.6 Damages for Medical and Funeral Expenses caused by Death 3.7 Damages for Loss of Support caused by Death 4. Conduct will be justified as an act in private defence or self-defence if it is. Heads of Damages – Primer Table of Contents Section A Canada’s Legal System: A Brief Introduction by considering the results of a decision in favour of either party. The following practice direction is in force in regard to opposed motions both in Pietermaritzburg and Durban: 9.4.1. an item of loss, injury, or damage etc in a legal claim. 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. HB Klopper. In addition, the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and. The mores of the society as a whole are relevant in determining whether or not a statement is defamatory. 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 is subjective. General damages comprise those heads of loss that are non-pecuniary and are not capable of precise calculation. CHAPTER 1 - Introduction. 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. 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). IN THE HIGH COURT OF SOUTH AFRICA. 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. Dignitas is a generic term meaning ‘worthiness, dignity, self-respect’, and comprises related concerns like mental tranquillity and privacy.  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. It reflects the law's disapproval of the defendant's conduct. 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 has been pointed out, however, In contrast to the casuistic approach of the Roman law of delict, the South African law of delict is based [...] on three pillars: the actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering. 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). There must be no compulsion, in other words, and it must not be a reflex action. 1.2 Points of departure and exclusions. 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. 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. There are several defences which exclude intent: The test for negligence is one of the objective or reasonable person (bonus paterfamilias). and Claims involving a fatality—heads of damage for what can be claimed under LR(MP)A 1934 and FAA 1976. Liability for the loss is shared by those who are responsible for it. 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. 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. Where the conduct takes the form of omissions or negligent statements, it is usually not wrongful even if physical harm results. Conduct in the law of delict is usually divided into factual and legal causation. 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. Culpa is partly an objective and partly a subjective concept. The question to be answered is whether or not an ordinary, decent, right-thinking person would consider such conduct to be insulting. 2. 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. The reference may be by implication, where the facts are well-known, or easily ascertainable. 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