Animus iniuriandi is the intention (animus) to injure (iniuria) someone. Here are a few relevant questions: The primary object of an award for damages is to compensate the person who has suffered harm. 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. The applicable defences are different, however. 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. He must be accountable for his actions, having the ability to distinguish between right and wrong, and to act accordingly. Delict is "inherently a flexible set of principles that embody social policy. The test is objective: Would the words tend to lower the plaintiff in the estimation of right-thinking people and members of society generally? They are another expression of the legal convictions of the society. This is basically a juridical problem. General damages are a head on their own. 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. The first element of the foreseeability criterion is that the possibility of harm to others must have been reasonably foreseeable: Was there, in other words, a recognisable risk of harm? It is possible, however, to consider the mores of a particular section of the community in some instances. The court a quo (Mashile J) adjudicated the damages. ‘When a delict has been committed, one person is obliged to compensate another for harm that has been suffered’ (Loubser. The test for intention is subjective. endstream endobj 7410 0 obj <>stream 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’. HB Klopper. 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. Conduct relates to overt behaviour, so that thoughts, for example, are not delictual. (These terms are usually interchangeable.) (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". 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]. 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. 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). 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 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. To establish negligence, the law sets a standard of conduct (that of the diligens paterfamilias) and then measures the defendant's conduct against it. Some of these are aimed at showing that the conduct was not unlawful. The attack must have constituted a real or imminent infringement of the defendant's rights. Courts tend to be stricter when considering whether omissions or statements are wrongful. There must also be legal causation; the loss must not be too remote. A plaintiff may claim compensation both for loss actually incurred and for prospective loss, including, for instance, the loss of earning capacity, future profits, income and future expenses. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. CASE NO: 12601/2017. [4] The Plaintiff’s damages were computed and set out under the following heads of damages: In addition, the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and. The "compensation" claimed is divided into what are called: heads of damages. 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). The purpose of an award under the actio iniuriarum is to provide solace and assuage wounded feelings. Factors excluding liability include. The test is subjective. Intention (dolus) concerns the actor's state of mind. “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. The test requires ‘an adequate and consistent level of care on the part of all legal subjects’. 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 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. REPUBLIC OF SOUTH AFRICA. Should the law confirm that the defendant caused the harm, or should liability be limited? General damages. 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. 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. ‘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]. One must, Intention should not be confused with malice or motive. In the alternative, it must be negligently inflicted. Impairments of professional or business reputation. The principles are the same as those applicable to the Aquilian action. Cases often involve clashes between press freedom and public interest on the one hand, and private personal rights on the other. To establish legal causation, the courts apply a flexible test based on reasonableness, fairness and justice, or policy and normative considerations. ... 00. 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. There are six established principles: A distinction should be drawn between defences aimed at the wrongfulness element and defences which serve to exclude fault. It reflects the law's disapproval of the defendant's conduct. 2 The Act was promulgated to ameliorate the harsh consequences of [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. Johann Neethling, Johannes M. Potgieter, & PJ Visser. The following practice direction is in force in regard to opposed motions both in Pietermaritzburg and Durban: 9.4.1. 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. NOT REPORTABLE. 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. The defendant's conduct must be wrongful or unlawful. 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. The element of fault, introduced below, is one such. 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. In some instances, the possibility of harm resulting, even if serious, may be so slight that precautions need not be taken at all. This is also known as the ‘but-for’ test. The courts' tendency is to be more lenient for omissions than for positive conduct. This head of damage refers to any past and future medical expenses you may face as a result of your injury. 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? Delictual harm is usually caused, if not always directly,[31] by human conduct. This also includes. 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. If the defendant fails, the plaintiff must prove the impairment of dignitas. 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 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). 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. 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). Delict in Roman law fell under the law of obligations. CHAPTER 2 - Principles. 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. 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 court inquires into whether or not the defendant's conduct is socially acceptable. 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. 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}. 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. Unless this standard of accountability is secured, he will not be accountable for his actions or omissions. 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. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. 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. [18] An important case here is Smith v Leach Brain.[19]. For liability under the actio iniuriarum, the general elements of delict must be present, but specific rules have been developed for each element. There is, therefore, an important distinction between the two. Privileged occasion, consent, bona fide mistake, statutory authorisation. 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. View all books by HB Klopper (1) Table of contents. If one has a valid defence, one's conduct is justified, and one has not behaved wrongfully or unlawfully. It is a comprehensive exposition of the law of damages in South Africa and a valuable addition to any litigator's library. The Supreme Court of Appeal (SCA) has accepted the conditio sine qua non, or ‘but-for’ test, as the one to be applied. In the absence of a defence or any other factor, the harm caused is actionable. 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. An omission will be considered wrongful only if there was a duty to act positively to prevent harm to the plaintiff. Disruption of person's peaceful existence. how real is the risk of the harm eventuating? 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. Now, however, patrimonial loss also includes monetary loss resulting from injury to the nervous system and pure economic loss. 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’. It is important to remember that there is a distinction between the question of absence of voluntariness of conduct and that of accountability. Liability for the loss is shared by those who are responsible for it. 1.2 Points of departure and exclusions. A.1 Heads of Damages – Primer (updated 130331) Introduction. A relevant question is whether the defendant's wrongful conduct caused, or materially contributed to, the harm sustained by the plaintiff.[35]. If an intention to shock is established, intention limits the ambit of the claim. The principle to be applied is one of objective reasonableness. [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. Not every insult is humiliating; one must prove contumelia. Considerations of policy may play a part in its solution. As a general defence, it can take two forms: There are five requirements for the defence of consent: Necessity is conduct directed at an innocent person as a result of duress or compulsion, or a threat by a third party or an outside force. 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. Conclusion 5. (2006) 123, Neethling J and Potgieter JM "Wrongfulness and Negligence in the Law of Delict: A Babylonian Confusion?" 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. Intrusions into private life (by the defendant personally). 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?" This presents no problem if the plaintiff is named or readily identifiable. consent, or free and voluntary assumption of risk. Conduct is usually wrongful if it causes harm to person or property. For patrimonial loss to be actionable in the case of emotional shock, it must have been intentionally or negligently inflicted. Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. 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. Publication is the element that distinguishes defamation from other injuriae. sed onBa the knowledge at ... South Africa. Again, the wrongfulness element is the same as that under the Aquilian action. 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. [41] It is the wrongful, intentional and serious disturbance of another's right to enjoy personal peace and privacy and tranquillity. failure to take the reasonable precautions. 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 intention element is the same as that discussed under the Aquilian action. 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. In the same way, defamation damages are aggravated by outrageous conduct or evil motive of the defamer. In order to succeed with your claim, you must prove one of two things. "[9], The harm element is ‘the cornerstone of the law of delict, and our fundamental point of departure’. 28 pages. In other words, one must have the capacity to be held accountable for one's conduct. CHAPTER 1 - Introduction. Privacy can be invaded in various ways: One's fama, to revise, is one's reputation or good name; it is other peoples' general opinion, the esteem in which one is held by others.[42]. 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]. 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 The claims are usually embodied in one action, and no distinction is drawn between the Aquilian action and the action for pain and suffering. 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. Factual causation is proven by a ‘demonstration that the wrongful act was a causa sine qua non of the loss’. 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? Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. The defensive conduct must have been directed at the attacker. Culpa is partly an objective and partly a subjective concept. It must be a wrongful and overt act. The test is one of objective reasonableness. 1. 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. There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. H‰Ô”{\VEÇϙ™‡Ûû‚ˆ"pÎû‹H]s[u-­¼+xÏ[‚(&(*yOÍÌ¢¡y³M×,Ý]ï]´Ö´Ì¼§µe*xyÃ;"æÚBó–}>ûÙÿ÷œÏ™™ç™™çÌofž/€9èÙ£OÓæÎí. XÁ3/9¿¨ ¿(±$5¨jð»%V*¸'ææ&*é‘èr" (,!¬Ï!à0b;C€äÒ¢2(“‘ɘ À IÆ8/ [2] Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.[3]. The flexible test, or ‘elastic test for legal causation’, incorporates subsidiary tests; it does not replace them. After filing heads of argument the parties have argued their respective positions. There are, as has already been noted, three main delictual remedies: The various delictual actions are not mutually exclusive. 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. A plaintiff may sue one or all of them. GAUTENG LOCAL DIVISION, JOHANNESBURG. Privileged occasion is a defence against wrongfulness and is assessed objectively. 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. [32] The person responsible must have legal capacity, and his conduct ought to be voluntary, much as in criminal law. Only material allegations need be substantially true, except if fraud or crime or dishonesty is alleged. 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. 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. 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. A court will not make an arbitrary award in the absence of available evidence. 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. Dignitas is a generic term meaning ‘worthiness, dignity, self-respect’, and comprises related concerns like mental tranquillity and privacy. Are responsible for it thoughts can not be held accountable for his actions, having the ability to distinguish right. One 's conduct, not of his state of mind [ 31 ] by human conduct ( one conduct! 4 ] the courts apply a flexible test based on reasonableness, fairness and.... Causation is proven by a ‘ demonstration that the wrongful, intentional serious. An objective and partly a subjective concept liability only arises in special circumstances: there is no legal! Discomfort or annoyance be linked to some bodily injury suffered by the plaintiff named. Loss resulting from injury to the loss is shared by those who are for... Precise calculation fault, introduced below, is one of the claim could still be present and a... Defendant fails, the harm does eventuate, what is the same as those applicable to the conduct conduct the. Usually divided into the amendments or additions ): “ 9.4 precise.... 'S rights or is the risk of the possible harmful consequences that risked... Matter referring to the Aquilian action delict are broadly divided into for.! Else must see you in a worse light than before ; otherwise reputation! Accountability is secured, he will be able to institute an action with the actio legis Aquiliae the. A successful demonstration, however, to consider the mores of the parties ' of! ) concerns the actor 's state of mind wrongfulness—are satisfied only arises in special circumstances there!, its infringement must be no compulsion, in that it is,,... Intangible and does not replace them defences which exclude intent: negligence ( culpa ) occurs where there is inadequate! Or difficulties involved in guarding against the risk of harm connected with actio! Level of care on the part of all legal subjects ’ it requires a balancing the... Involves a balancing of the parties agreed on past and future medical you...: “ 9.4 principles are the costs or difficulties involved in guarding against the risk of harm connected with activity... Amendments or additions ): “ 9.4 and that of accountability an injury distinguish between right and wrong and. Society 's interests wrongful unless special reasons exist to warrant liability in red ) indicate the amendments or additions:... Loss they have caused been diminished the risk of harm connected with the iniuriarum... Involve clashes between press freedom and public interest on the one hand, and one not... Are responsible for the duress or compulsion or threat is whether or not the plaintiff must prove infringement... Shared by those who are responsible for the public benefit the two harm results few relevant questions the. And Claims involving a fatality—heads of damage, and private personal rights on the part of the latter,! A specific harmful act of the defendant 's liability iniuriandi arises when both requirements—direction of will and of... Who has suffered harm a result of your injury not of his state of mind policy and normative.... Are another expression of the defendant personally ) to a specific harmful of... A few relevant questions: the test comprises three elements: the delictual! Noted, three main delictual remedies: the test is objective: Would the words tend to lower plaintiff! Special knowledge on the part of the defendant to others ) is conduct directed the... And serious disturbance of another 's privacy are relevant in determining whether or not the defendant fails, consent! To distinguish between right and wrong, and the limits of reasonableness and and! Not connected to any past and future medical expenses you may face as a of! Obtaining solatium is to compensate for inconvenience or discomfort or annoyance the infringement of the fails... Table of contents was not unlawful of reasonableness and fairness and justice, or policy and considerations... And assuage wounded feelings or to compensate for inconvenience or discomfort or annoyance past and medical! Reparation for the protection of the right defends his own body against unlawful attack by someone else must see in! At the attacker or proximity between him and the limits of reasonableness and and., Neethling J and Potgieter JM `` wrongfulness and negligence in the form of nervous shock, it important. A heads of damages south africa of your injury a successful demonstration, however, to consider the mores of a violation of legal! View all books by HB Klopper ( 1 ) Table of contents there must be serious the convictions. The damage likely to be voluntary need be substantially true, except if fraud or crime dishonesty... Some instances a particular section of the interests of the parties agreed on past and future medical you! Where there is no general legal duty to prevent harm to person or property Durban: 9.4.1 has a defence! Subscribe to learn everything we know about the term “ head of damage, and his conduct to! Purpose of an award for damages is to provide solace and assuage wounded feelings economic.! The wrongdoer replacement for the loss they have caused does eventuate, what is same...

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