the heads of damage, and sample case studies have been included to help the student understand the key concepts when valuing each head. [15], Rigidity, the court held in Smit v Abrahams,[16] is inconsistent with the flexible approach or criterion in South African law, whereby the court considers on the basis of policy considerations whether there is a sufficiently close connection between act and consequence. 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 defendant's conduct must be wrongful or unlawful. Privileged occasion, consent, bona fide mistake, statutory authorisation. how real is the risk of the harm eventuating? It is a comprehensive exposition of the law of damages in South Africa and a valuable addition to any litigator's library. Liability for the loss is shared by those who are responsible for it. The test is objective: Would the words tend to lower the plaintiff in the estimation of right-thinking people and members of society generally? [12] The courts take a flexible approach based on considerations of reasonableness and fairness and justice, although there are misgivings. this head of damage, particularly where future loss is concerned. The existence of a legal duty to act positively depends on the legal (rather than the moral) convictions of the community. A successful demonstration, however, ‘does not necessarily result in legal liability’. 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]. 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. 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. A.1 Heads of Damages – Primer (updated 130331) Introduction. The intention element is the same as that discussed under the Aquilian action. Fair comment cannot be wrongful. Culpa is partly an objective and partly a subjective concept. 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. It is vitally important that the conduct be voluntary. 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 Is the harm sufficiently closely connected to the conduct? 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 In addition, the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and. Injury by shock must in either case be foreseeable. 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. Factors excluding liability include. 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. 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. This page was last edited on 8 September 2020, at 01:04. 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. Exaggeration is allowed, but not if calculated to convey the wrong impression. 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 determining whether or not conduct is objectively reasonable, the courts apply certain well-established rules of thumb. [32] The person responsible must have legal capacity, and his conduct ought to be voluntary, much as in criminal law. 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. 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. 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. There are several defences which exclude intent: The test for negligence is one of the objective or reasonable person (bonus paterfamilias). 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. Animus iniuriandi is the intention (animus) to injure (iniuria) someone. In the absence of a defence or any other factor, the harm caused is actionable. 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. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. There must also be legal causation; the loss must not be too remote. [18] An important case here is Smith v Leach Brain.[19]. [4] The classic remedy for a delict is compensation: a claim of damages for the harm caused. 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 attack must have constituted a real or imminent infringement of the defendant's rights. Again, the wrongfulness element is the same as that under the Aquilian action. 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. Intention (dolus) concerns the actor's state of mind. ‘Sound policy’, wrote Oliver Wendell Holmes, Jr, ‘lets losses lie where they fall, except where a special reason can be shown for interference’. fault or blameworthiness on the part of the defendant. [41] It is the wrongful, intentional and serious disturbance of another's right to enjoy personal peace and privacy and tranquillity. If its conditions are not met, liability will not arise. The only heads of damages for determination by this court is the issue of the plaintiff’s general damages. 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. [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. 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. There is no general legal duty to prevent harm. Accountability relates to overt behaviour (Thoughts cannot be delictual.) 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; … 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? Conduct will be justified as an act in private defence or self-defence if it is. 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). 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). If one has a valid defence, one's conduct is justified, and one has not behaved wrongfully or unlawfully. The principles are the same as those applicable to the Aquilian action. Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. The following are examples: Falsity is not essential in defamation cases; the truth, indeed, may be defamatory. Publication is not required, and the defences are the same as for defamation. View all books by HB Klopper (1) Table of contents. 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. 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. The defendant can oppose defamation with a right of opinion, if his opinion is sincere and based on facts (see Freedom of speech in South Africa). 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. It must not have been a trivial emotional experience. [2] Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.[3]. 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 "compensation" claimed is divided into what are called: heads of damages. 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. 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. 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. This is a list of the heads of state of South Africa from the foundation of the Union of South Africa in 1910 to the present day.. From 1910 to 1961 the head of state under the South Africa Act 1909 was the Monarch, who was the same person as the Monarch of the United Kingdom and of the other Dominions/Commonwealth realms.The Monarch was represented in South Africa by a Governor-General. 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. 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. Impairments of professional or business reputation. 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. 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. whether or not the person has the ability to distinguish between right and wrong (that is, the nature of his insight and understanding); and. There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. 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). imputations against moral character, arousing hatred, contempt and ridicule; impairments that cause shunning and avoiding; and. It is important to remember that there is a distinction between the question of absence of voluntariness of conduct and that of accountability. The requirements, as set out in Delange v Costa,[39] are as follows: If the wrongful act is proved, intention is presumed. Publication is the element that distinguishes defamation from other injuriae. 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]. To establish legal causation, the courts apply a flexible test based on reasonableness, fairness and justice, or policy and normative considerations. The reference may be by implication, where the facts are well-known, or easily ascertainable. Considerations of policy may play a part in its solution. 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). Able to institute an action with the activity of the right the a! Courts apply a flexible test, or is the same as for defamation or imminent infringement of the (... A delict is `` inherently a flexible approach based on reasonableness, fairness and justice they another! Reality, no criterion at all by any number of factors, such as,... One hand, and comprises related concerns like mental tranquillity and privacy and tranquillity been... Against the risk of the defendant caused the harm caused provide solace assuage. 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