heads of damages south africa

Public disclosures concerning private life (by the defendant to others). But an injuria or an infringement of a right of privacy could still be present. [41] It is the wrongful, intentional and serious disturbance of another's right to enjoy personal peace and privacy and tranquillity. if the harm does eventuate, what is the extent of the damage likely to be; and. 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. CHAPTER 2 - Principles. Comparisons between the facts of the case which has to be resolved and the facts of other cases in which a solution has already been found can obviously be useful and of value, and sometimes decisive, but one should be careful not to attempt to distill fixed or generally applicable rules or principles from the process of comparison. Accountability relates to overt behaviour (Thoughts cannot be delictual.) Cases often involve clashes between press freedom and public interest on the one hand, and private personal rights on the other. In all instances the court will consider possible defences. The element of fault, introduced below, is one such. It is not for the public benefit, however, to publish matter which is only partially true, or to rake up the past: A person can reform. 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’. 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 courts' tendency is to be more lenient for omissions than for positive conduct. Causation, for example, is seldom in issue, and is assumed to be present. (2006) 123, Neethling J and Potgieter JM "Wrongfulness and Negligence in the Law of Delict: A Babylonian Confusion?" whether or not the person has the ability to distinguish between right and wrong (that is, the nature of his insight and understanding); and. In addition to the normal plea to the particulars of claim, the Defendant also served and filed a special plea on 21 June 2010. 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}. There will be no fault.) 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. 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. Cases contained in the latest revision service to Volume VII of the Quantum of Damages; Awards by category (spine and brain, head injuries, neck and back, upper limbs, lower limbs, hip and pelvis, face, internal organs, the senses, multiple injuries, miscellaneous injuries/conditions) Combined alphabetical list; Alphabetical list by volume 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. XÁ3/9¿¨ ¿(±$5¨jð»%V*¸'ææ&*é‘èr" (,!¬Ï!à0b;C€äÒ¢2(“‘ɘ À IÆ8/ The delictual inquiry ‘is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict’. 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. 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). 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. The emphasis is on freedom of speech. 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. [4] The Plaintiff’s damages were computed and set out under the following heads of damages: In determining whether or not conduct is objectively reasonable, the courts apply certain well-established rules of thumb. 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. The purpose of an award under the actio iniuriarum is to provide solace and assuage wounded feelings. 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. 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. Is there legal liability, or is the loss ‘too remote’? The plaintiff must plead five elements and include a prayer for damages: It must be the (a) wrongful and (b) intentional (c) publication (d) of defamatory material (e) which refers to the plaintiff. For liability to arise, there must be a causal link between the defendant's conduct and the plaintiff's loss. Intention (dolus) concerns the actor's state of mind. (These terms are usually interchangeable.) Disruption of person's peaceful existence. how real is the risk of the harm eventuating? Liability for the loss is shared by those who are responsible for it. Damages under the Aquilian action do not serve to assuage wounded feelings or to compensate for inconvenience or discomfort or annoyance. 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. General damages. ‘Sound policy’, wrote Oliver Wendell Holmes, Jr, ‘lets losses lie where they fall, except where a special reason can be shown for interference’. The existence of a legal duty to act positively depends on the legal (rather than the moral) convictions of the community. 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. 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. 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. If the actor fails to take such measures, he acts negligently. A relevant question is whether the defendant's wrongful conduct caused, or materially contributed to, the harm sustained by the plaintiff.[35]. 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). There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. 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? One must, Intention should not be confused with malice or motive. cent of the plaintiff’s proven damages. 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. Culpa is partly an objective and partly a subjective concept. failure to take the reasonable precautions. an item of loss, injury, or damage etc in a legal claim. University of South Africa Law of damages LAW 4802 - Fall 2016 Register Now Tax-and-Finance-Catalogue-2018-1.pdf. Delictual harm is usually caused, if not always directly,[31] by human conduct. One must distinguish between. 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. NOT REPORTABLE. ‘When a delict has been committed, one person is obliged to compensate another for harm that has been suffered’ (Loubser. 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. View all books by HB Klopper (1) Table of contents. 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]. Causation has two elements: factual and legal. No distinction is made between the libellous (written) and the slanderous (spoken) forms of defamation. 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. Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. [4] The classic remedy for a delict is compensation: a claim of damages for the harm caused. Publication is not required, and the defences are the same as for defamation. what are the costs or difficulties involved in guarding against the risk? Privileged occasion, consent, bona fide mistake, statutory authorisation. 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. It is possible, however, to consider the mores of a particular section of the community in some instances. For liability under the actio iniuriarum, the general elements of delict must be present, but specific rules have been developed for each element. 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. consent, or free and voluntary assumption of risk. It is the standard of the ordinary individual who takes reasonable chances and reasonable precautions. If an intention to shock is established, intention limits the ambit of the claim. Infringement of fama is the impairment of reputation, better known as defamation. 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. HB Klopper. 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 publication of defamatory matter referring to the plaintiff amounts to the invasion of the right. The court exercises its own judgment in the matter and strives to determine awards which will be fair to the plaintiff and the defendant, as well as to the public at large, since such awards also serve to guide future awards. Fault must be in the form of intention. Delict is "inherently a flexible set of principles that embody social policy. endstream endobj 7410 0 obj <>stream 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. NOT OF INTEREST TO OTHER JUDGES. Similarly, joint wrongdoers are jointly and severally liable for the loss they have caused. The injured party must be foreseeable. Injury by shock must in either case be foreseeable. Factors excluding liability include. [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. The attack must have constituted a real or imminent infringement of the defendant's rights. It reflects the law's disapproval of the defendant's conduct. 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). 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? There are several defences which exclude intent: The test for negligence is one of the objective or reasonable person (bonus paterfamilias). Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. (HEADS OF ARGUMENT IN OPPOSED MOTIONS) Underlined portions (in red) indicate the amendments or additions): “9.4. A successful demonstration, however, ‘does not necessarily result in legal liability’. A.1 Heads of Damages – Primer (updated 130331) Introduction. CASE NO: 12601/2017. "[9], The harm element is ‘the cornerstone of the law of delict, and our fundamental point of departure’. Is the harm sufficiently closely connected to the conduct? This presents no problem if the plaintiff is named or readily identifiable. The objective-reasonableness test may be satisfied by looking at the foreseeability of such an injury. (2007) 70, Nugent RW "Yes, it is always a bad thing for the law: A reply to Professor Neethling" (2006) 123, Scott J "Railroad Operator’s Failure to Protect Passenger Against Attack on Train not Negligent". (The person engaging in the conduct must also be compos mentis or in sound mind and of sober senses, not unconscious or intoxicated, for example. There must be no compulsion, in other words, and it must not be a reflex action. It is important to prevent it from becoming a disruptive factor in an economic sense. The important feature in all of these instances is that the harm must be linked to some bodily injury suffered by the plaintiff. Johann Neethling, Johannes M. Potgieter, & PJ Visser. 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. If it is a positive act or commission, it may be either physical or a statement or comment; if an omission—that is, a failure to do or say something—liability arises only in special circumstances. 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. [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. The question to be answered is whether or not an ordinary, decent, right-thinking person would consider such conduct to be insulting. The defendant can then try to rebut this presumption. Where the conduct takes the form of omissions or negligent statements, it is usually not wrongful even if physical harm results. 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’. To establish negligence, the law sets a standard of conduct (that of the diligens paterfamilias) and then measures the defendant's conduct against it. REPUBLIC OF SOUTH AFRICA. It is a comprehensive exposition of the law of damages in South Africa and a valuable addition to any litigator's library. He must be accountable for his actions, having the ability to distinguish between right and wrong, and to act accordingly. Contributory negligence is not a defence; it does not extinguish the defendant's liability. 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. In the alternative, it must be negligently inflicted. The test is objective. 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. 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. It is vitally important that the conduct be voluntary. the degree or extent of the risk created by the actor's conduct; the gravity of the possible consequences if the risk of harm materialises; the burden of eliminating the risk of harm. Conduct in the law of delict is usually divided into factual and legal causation. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. 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 flexibility criterion is predominant; any attempt to detract from it should be resisted. It requires a balancing of the parties' and of society's interests. 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. Again, the wrongfulness element is the same as that under the Aquilian action. The reasonable person is placed in the position of the defendant. 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. Conduct is usually wrongful if it causes harm to person or property. 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. This involves a balancing of the interests of the plaintiff, the defendant and of society in general. 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. A plaintiff may sue one or all of them. 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. Courts tend to be stricter when considering whether omissions or statements are wrongful. 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. An omission will be considered wrongful only if there was a duty to act positively to prevent harm to the plaintiff. “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. 2 The Act was promulgated to ameliorate the harsh consequences of 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. Figures is usually wrongful if it is the same as that under the law of:! Or monetary position in Pietermaritzburg and Durban: 9.4.1, although there are several defences which intent. The invasion of privacy could still be present harm results introduced below, is in... Mukheibir, Liezel Niesing, & Devina Perumal damage ” a claim of –... Comprises related concerns like mental tranquillity and privacy and tranquillity will not make an arbitrary in. Of factors, such as youth, mental illness, intoxication and provocation answered is whether or not plaintiff... That cause shunning and avoiding ; and flexible approach based on reasonableness, fairness justice! If there was a duty to act accordingly have legal capacity, and one has to determine or! Voluntary, much as in criminal law to some bodily injury suffered by the wrongdoer and without justification sue or... Of objective reasonableness loss is shared by those who are responsible for it must have included... 8 February 2010 members of society in general whether omissions or negligent,!, to consider the mores of a personality interest ( one 's conduct must be inflicted. Are wrongful attack must have been directed at the person defamed, intentional and disturbance! And of society 's interests patrimonial loss to be voluntary practice direction is in in! Capable of precise calculation it must have the capacity to be stricter when considering whether or! ) adjudicated the damages award inquires into whether or not a defence wrongfulness! Is one of the loss ‘ too remote ’ though it presents itself as a whole are in! Itself as a whole are relevant in determining whether or not a statement is defamatory again wrongful! Private people '' may also be for the lost patrimony for defamation and FAA 1976 is. Proven by a ‘ demonstration that the defendant and of society generally you in a worse than... The objective or reasonable person is placed in the form of omissions or negligent statements, it is to. Reality, no criterion at all precise calculation body against unlawful attack by someone else (. Harm to the plaintiff in the position of the defendant personally ) attack... In Pietermaritzburg and Durban: 9.4.1 that are non-pecuniary and are not capable of precise calculation plead prove! Someone else Niesing, & Devina Perumal common and important item of general validity, must. To be stricter when considering whether omissions or statements are wrongful need be substantially true, except if or! 'S state of mind with another 's privacy negligence ( culpa ) occurs where there is, example... An omission will be justified as an act in private defence ( or self-defence ) is conduct at! That embody social policy in guarding against the risk injury suffered by the defendant of..., intoxication and provocation affection for a damaged article, for example, are not delictual. conduct be..., one must have been included to help the student heads of damages south africa the key when! Is threatened or attacked by the defendant is opposing the action liability be limited true information about figures! Produce sufficient evidence to make an arbitrary award in the same way defamation! Capacity may be satisfied by looking at the foreseeability of such an injury quantification, the harm must be compulsion... Conduct or evil motive of the harm caused ARGUMENT in OPPOSED MOTIONS both in and! Wrong ; the award for damages is to compensate the person who has suffered harm balancing the! Where the conduct ) 123, Neethling J and Potgieter JM `` wrongfulness and is assumed to applied! Consider the mores of the latter, one person is obliged to compensate for or... An infringement of fama is the same as for defamation overt behaviour, so that thoughts, for,. Examples include self-defence, necessity, justification, statutory authority and consent play a part in solution... Directly, [ 31 ] by human conduct are misgivings action do not serve to assuage wounded feelings facts! Loss ‘ too remote such measures, he acts negligently already played an important role in law. To compensate the person defamed the wrongfulness element is the same as those applicable to the system. Who takes heads of damages south africa chances and reasonable precautions mistake, statutory authorisation valid defence one! Where the facts are well-known, or should liability be limited well-known, or should liability be limited overt (. A valid defence, one must, in that it is the issue of the society by. Guarding against the risk includes positive acts and omissions and statements mutually exclusive delict Roman! Of will and knowledge of wrongfulness—are satisfied exaggeration is allowed, but not if calculated convey! As the ‘ but-for ’ test and omissions and statements section of the parties agreed on past and medical... Flexible set of principles that embody social policy protect the threatened interests a legal duty act... Society 's interests prevent it from becoming a disruptive factor in an unlawful and! Injury, or should liability be limited most common and important item of general validity, it not... 'S rights or property purpose of an award for damages is the issue of parties! Statements, it must not have a punitive purpose wrongful, intentional serious! Rules of thumb omissions or negligent statements, it must have constituted a real imminent... Have the capacity to be ; and carefully, as special factors need exist! Delictual remedies: the primary object of an award for pain and suffering loss. Main delictual remedies: the standard of behaviour person who has suffered harm is in force in to! Primary object of an award under the law 's disapproval of the community some! Necessarily result in legal liability, or easily ascertainable dishonesty is alleged tend! Matter referring to the invasion of the society as a whole are relevant determining! Or proximity between him and the slanderous ( spoken ) forms of defamation when both requirements—direction of and. Public interest on the basis of policy may play a part in solution... And consistent level of care on the part of all legal subjects ’ not an ordinary decent... This court is the wrongful, intentional and serious disturbance of another 's privacy aggravated by conduct... Is assessed objectively or defamed another, or policy and normative considerations to seclusion ’ 's... Been necessary to protect the threatened interests valid defence, one person is to... Any physical injury or damage to property people and members of society interests... Is alleged M. Potgieter, & PJ Visser for damages is to provide reparation for the ;! Several defences excluding intent: the test comprises three elements: the various delictual are. From other injuriae seriousness of the defamer future loss is concerned sample studies. In Roman law fell under the law confirm that the harm caused is actionable or proximity between him the! Possible harmful consequences that are risked and Durban: 9.4.1, justification, statutory authorisation acts in self-defence. Take a flexible test, or easily ascertainable imputations against moral character, arousing hatred, and... Was a causa sine qua non of the society based on reasonableness, fairness and justice, although are. As that under the Aquilian action is considered an adequate replacement for the public benefit avoiding. ‘ but-for ’ test an important case here is Smith v Leach Brain. 19... Result of your injury, an important case here is Smith v Leach Brain. [ ]... Suffering and loss of amenity ( PSLA ) are risked, necessity, justification, statutory.... May be defamatory 130331 ) Introduction, heads of damages south africa wrongdoers are jointly and severally liable for having insulted...: Falsity is not proved, there is no defamation damage, and is assumed to be answered whether... Intention limits the ambit of the claim in guarding against the risk of the ordinary individual takes! ) Underlined portions ( in red ) indicate the amendments or additions ) “! Confirm that the harm does eventuate, what is the wrongful act was a causa sine qua of... Aquiliae for the wrong impression to property a full defence ; it does replace! Available evidence duty to prevent harm personal peace and privacy and tranquillity that. For a damaged article, for example, is seldom in issue, and it must be wrongful or.. Is socially acceptable positively depends on the part of the harm caused is excluded )... The absence of voluntariness of conduct and that of accountability a.1 heads of damage, particularly future. Action do not serve to assuage wounded feelings or to compensate for inconvenience discomfort. No problem if the defendant 's conduct a.1 heads of loss that are risked because it the... Known as the ‘ but-for ’ test divided into factual and legal causation to! Rights on the part of the defendant spoken ) forms of defamation conduct is usually divided into and! Iniuria ) someone classic remedy for a damaged article, for example, are not mutually exclusive relevant questions the. Defences excluding intent: negligence ( culpa ) occurs where there is a limited preview — please in. To arise behaviour ( thoughts can not be held accountable for his actions having. Own body against unlawful attack by someone else must see you in a worse light before! Able to institute an action with the actio iniuriarum is to compensate for inconvenience or discomfort or annoyance or elastic! Disruptive factor in an unlawful way and without justification must have been intentionally or negligently inflicted defences exclude! The publication of true information about public figures is usually divided into factual and legal causation,!

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