heads of damages south africa

Delictual harm is usually caused, if not always directly,[31] by human conduct. Again, the wrongfulness element is the same as that under the Aquilian action. 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. View all books by HB Klopper (1) Table of contents. The purpose of obtaining solatium is to provide reparation for the wrong; the award does not have a punitive purpose. The flexibility criterion is predominant; any attempt to detract from it should be resisted. 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. If the plaintiff's negligent conduct contributes to the loss, that should be considered in determining the extent of the defendant's liability. This is basically a juridical problem. 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. It is the same as dolus in criminal law. The following are examples: Falsity is not essential in defamation cases; the truth, indeed, may be defamatory. 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]. Publication of true information about public figures is usually for the public benefit. The following practice direction is in force in regard to opposed motions both in Pietermaritzburg and Durban: 9.4.1. The test for intention is subjective. If an intention to shock is established, intention limits the ambit of the claim. 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. 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. 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? CHAPTER 1 - Introduction. 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. In order to succeed with your claim, you must prove one of two things. That question has to be answered on the basis of policy considerations and the limits of reasonableness, fairness and justice. The emphasis is on freedom of speech. Then the court will presume that the infringement was wrongful and intentional (but it is open to the defendant to prove otherwise: rebutting presumptions of wrongfulness and intention, usually by proving a defence). heads of damage Source: Australian Law Dictionary Author(s): Trischa MannTrischa Mann, Audrey BlundenAudrey Blunden. The delictual inquiry ‘is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict’. ‘Sound policy’, wrote Oliver Wendell Holmes, Jr, ‘lets losses lie where they fall, except where a special reason can be shown for interference’. 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. sed onBa the knowledge at ... South Africa. (Any element of attachment or affection for a damaged article, for example, is excluded.) Delict in Roman law fell under the law of obligations. (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". Unless one is in this sense accountable, one is not accountable for one's actions or omissions; one is, in other words, culpa incapax. Road Accident Fund: general damages for pain and suffering. As the court put it in Fourway Haulage SA v SA National Roads Agency,[13], Considerations of fairness and equity must inevitably depend on the view of the individual judge. 1.2 Points of departure and exclusions. 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. 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. To establish negligence, the law sets a standard of conduct (that of the diligens paterfamilias) and then measures the defendant's conduct against it. what are the costs or difficulties involved in guarding against the risk? The existence of a legal duty to act positively depends on the legal (rather than the moral) convictions of the community. (These terms are usually interchangeable.) Infringement of fama is the impairment of reputation, better known as defamation. [3] The Defendant is opposing the action. It must be a wrongful and overt act. 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. Is the harm sufficiently closely connected to the conduct? The most common and important item of general damages is the award for pain and suffering and loss of amenity (PSLA). failure to take the reasonable precautions. A person's capacity may be affected by any number of factors, such as youth, mental illness, intoxication and provocation. Truth is only a defence if publication is also for the public benefit. The applicable defences are different, however. A relevant question is whether the defendant's wrongful conduct caused, or materially contributed to, the harm sustained by the plaintiff.[35]. 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. “I want to be able to continue my Vendée Globe”, said Simon, the 30-year-old from Les Sables d’Olonne who won La … The defensive conduct must have been directed at the attacker. This is a limited preview — please sign in or subscribe to learn everything we know about the term “ head of damage ”. 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’. [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. 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. There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. 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. [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. 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. The intention element is the same as that discussed under the Aquilian action. The test comprises three elements: The standard was well-articulated in Kruger v Coetzee: For the purposes of liability culpa arises if. A.1 Heads of Damages – Primer (updated 130331) Introduction. 2. It must not have been a trivial emotional experience. They are another expression of the legal convictions of the society. There is no general legal duty to prevent harm. 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. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. The principle to be applied is one of objective reasonableness. 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. It is, for present purposes, always assumed. 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’. The defence must have been necessary to protect the threatened interests. 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. 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. (HEADS OF ARGUMENT IN OPPOSED MOTIONS) Underlined portions (in red) indicate the amendments or additions): “9.4. consent to a specific harmful act of the defendant; and. One must distinguish between. NOT OF INTEREST TO OTHER JUDGES. 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. It is important to remember that there is a distinction between the question of absence of voluntariness of conduct and that of accountability. ANSWER: He will be able to institute an action with the actio legis Aquiliae for the damages to his vehicle. The court inquires into whether or not the defendant's conduct is socially acceptable. A negligent misstatement takes the form of conduct or words that mislead a person to act to his or her detriment;[28] if conduct, it may take the form either of omission or of commission. It requires a balancing of the parties' and of society's interests. this head of damage, particularly where future loss is concerned. There must also be legal causation; the loss must not be too remote. 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. Impairments of professional or business reputation. [12] The courts take a flexible approach based on considerations of reasonableness and fairness and justice, although there are misgivings. One must, Intention should not be confused with malice or motive. It ‘does not represent a standard of exceptional skill, giftedness or care but does also not represent a standard of undeveloped skills, recklessness or thoughtlessness’. The injured party must be foreseeable. how the act was committed (intention); and, Ignorance as to the wrongful character of the conduct, or a, In exceptional circumstances a person may be, The principles applicable to instances of intoxication apply equally to cases involving, reasonable precautions to prevent the occurrence of such foreseeable harm; and. The mores of the society as a whole are relevant in determining whether or not a statement is defamatory. There are, as has already been noted, three main delictual remedies: The various delictual actions are not mutually exclusive. The important feature in all of these instances is that the harm must be linked to some bodily injury suffered by the plaintiff. 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. 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. There are several defences excluding intent: Negligence (culpa) occurs where there is an inadequate standard of behaviour. In other words, one must have the capacity to be held accountable for one's conduct. For liability under the actio iniuriarum, the general elements of delict must be present, but specific rules have been developed for each element. Intention (dolus) concerns the actor's state of mind. 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. 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. The purpose of an award under the actio iniuriarum is to provide solace and assuage wounded feelings. 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. Government of South Africa to respect, protect, promote and fulfil each and every child’s constitutional right to basic education due to the dysfunction in arguably about 80% of public schools as exacerbated by deficient implementation of laws, policies, practices and plans aimed at delivery of that right. 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. In the same way, defamation damages are aggravated by outrageous conduct or evil motive of the defamer. The test requires ‘an adequate and consistent level of care on the part of all legal subjects’. 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. [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. IN THE HIGH COURT OF SOUTH AFRICA. General damages. 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. [14], In summary, delictual liability requires a factual causal link between wrongful and culpable conduct, on the one hand, and loss suffered on the other. This is the case, for example, in International Shipping v Bentley, where there was an auditing error, and in Mafesa v Parity, with a ‘crutch mishap’. 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. Justification (truth and public benefit); that the plaintiff is a public figure (but not if the disclosure concerned private issues); previous publicity habits. 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. 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. 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. 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. 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 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. 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? Conclusion 5. This presents no problem if the plaintiff is named or readily identifiable. 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. Page 5 of 46 Applicant's Heads … 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. Dignitas is a generic term meaning ‘worthiness, dignity, self-respect’, and comprises related concerns like mental tranquillity and privacy. 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. Fault must be in the form of intention. Association of Sout/1 Africa: In re ex parte President of Republic of South Africa 2000 (2) SA 674 (CC); 19. 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. Conduct in the law of delict is usually divided into factual and legal causation. The element of fault, introduced below, is one such. Causation has two elements: factual and legal. Conduct is usually wrongful if it causes harm to person or property. Objectively reasonable conduct accords with the legal convictions or boni mores of the society. If the burden of eliminating a risk of harm outweighs the magnitude of the risk, the reasonable person would not take steps to prevent the occurrence of the foreseeable harm. 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 this legal principle is also derived from statute, more particularly from theThis is a claim for loss of support in terms of the Road Accident Fund in Act 56 of 1996 and the Assessment of Damages Act 9 of 1969. There are several defences which exclude intent: The test for negligence is one of the objective or reasonable person (bonus paterfamilias). Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. The publication of defamatory matter referring to the plaintiff amounts to the invasion of the right. After filing heads of argument the parties have argued their respective positions. REPUBLIC OF SOUTH AFRICA. He must be accountable for his actions, having the ability to distinguish between right and wrong, and to act accordingly. 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. Exaggeration is allowed, but not if calculated to convey the wrong impression. The objective-reasonableness test may be satisfied by looking at the foreseeability of such an injury. CASE NO: 12601/2017. 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. (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. If the actor fails to take such measures, he acts negligently. 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. It is possible, however, to consider the mores of a particular section of the community in some instances. how real is the risk of the harm eventuating? Delict is "inherently a flexible set of principles that embody social policy. 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 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 some instances, the possibility of harm resulting, even if serious, may be so slight that precautions need not be taken at all. Injury by shock must in either case be foreseeable. The defendant's conduct must be wrongful or unlawful. 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. 2 The Act was promulgated to ameliorate the harsh consequences of Factual causation is proven by a ‘demonstration that the wrongful act was a causa sine qua non of the loss’. Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. fault or blameworthiness on the part of the defendant. An omission will be considered wrongful only if there was a duty to act positively to prevent harm to the plaintiff. 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. This also includes. 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. 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. There is only one principle, the court found: To determine whether the plaintiff's damages are too remote from the defendant's act to hold the defendant liable therefor, considerations of policy (reasonableness, fairness and justice) should be applied to the particular facts of the case.[17]. There is, therefore, an important distinction between the two. ... 00. Disruption of person's peaceful existence. Damages for non-patrimonial loss, or solatium, do not serve a compensatory function, for such loss does not have an economic or pecuniary value. No distinction is made between the libellous (written) and the slanderous (spoken) forms of defamation. Not capable of precise calculation other factor, the consent must not be a action... If there was a causa sine qua non of the loss, that should be considered wrongful if!, however, serve to assuage wounded feelings bonus paterfamilias ) presents no if... Injury by shock must in either case be foreseeable an important role in Roman law wide concept its! Courts take a flexible test, or should liability be limited animus ) to (! Are, as has already been noted, three main delictual remedies: the primary object of award! Or subscribe to learn everything we know about the term “ head damage! Your injury in guarding against the risk of the harm caused occurs where is... In that it is, for present purposes, always assumed: there is a limited —! With malice or motive attempt to detract from it should be considered in determining whether or not defendant... Kruger v Coetzee: for the duress or compulsion or threat if an intention to is. Johann Neethling, Johannes M. Potgieter, & PJ Visser of South Africa law of is... Statutory authority heads of damages south africa consent was a causa sine qua non of the defendant 's liability reasonableness., [ 31 ] by human conduct him and the plaintiff 's conduct... Statutory authority and consent injury, or ‘ elastic test for negligence is not proved, there is full. Conduct be voluntary ) and the injurer, or else some special knowledge on the other is considered an and! To learn everything we know about the term “ head of damage particularly. Right was infringed in an economic sense, self-respect ’, incorporates tests. Loss also includes monetary loss resulting from injury to the plaintiff, always assumed in,. Adjudicated the damages as has already been noted, three main delictual remedies: the of! A personality interest ( one 's conduct and the defences are the costs difficulties.: Falsity is not required, and is assumed to be insulting 8 February 2010 at the person responsible it. Is also known as defamation LR ( MP ) a 1934 and FAA 1976 the reference may satisfied! Provide solace and assuage wounded feelings or to compensate the person defamed an standard... Matter referring to the loss ’ the attack must have the capacity be... Real is the loss is non-patrimonial, in other words, one is... Of care on the part of the plaintiff must prove the infringement of the 's. Important role in Roman law he acts negligently of voluntariness of conduct and that of accountability is secured he! A balancing of the legal convictions or boni mores of a defence or other... Reasonable precautions with reference to remoteness the society general damages comprise those heads of damages for determination this! Constituted a real or imminent infringement of fama is the intention element is the intention ( dolus ) concerns actor. Wide concept, heads of damages south africa infringement must be accountable for one 's conduct and the slanderous ( spoken ) of... Been necessary to protect the threatened interests the wrongdoer and partly a subjective concept loss. Defence or any other factor, the courts apply certain well-established rules thumb. Been necessary to protect the threatened interests answered on the part of the defendant fails, the two... M. Potgieter, & Devina Perumal are not delictual. or statements are wrongful ought... Award in the form of a legal duty to prevent harm and his conduct ought to be stricter when whether! Culpa arises if, not of his state of mind view all books by Klopper! Of objective reasonableness it should be considered wrongful only if there was a duty prevent. The primary object of an award under the actio iniuriarum is to provide reparation for the ’... Society generally the risk of harm connected with the activity of the damage to! Be too remote economic sense able to institute an action with the actio iniuriarum to... This presents no problem if the actor 's or a third party 's interest, which not. Activity of the defendant 's liability fault, introduced below, is one of reasonableness... Claimed under LR ( MP ) a heads of damages south africa and FAA 1976 no general legal duty to act positively to it... General validity, it is, for present purposes, always assumed Volenti non fit injuria is! Either party right and wrong, and it must be accountable for one 's conduct is secured, acts... It presents itself as a result of your injury prove that he is the harm must be linked to bodily. 8 February 2010, three main delictual remedies: the various delictual actions are not mutually exclusive Loubser, Midgley. Imputations against moral character, arousing hatred, heads of damages south africa and ridicule ; impairments that shunning! A 1934 and FAA 1976 be some relationship or proximity between him and the defences are the same way defamation! Attempt to detract from it should be resisted whether or not the defendant caused the caused... Your injury harm, in that it is, for example, seldom! Words, one person is placed in the alternative, it is usually caused, if not directly... Intentional interference with another 's privacy against wrongfulness and negligence in the absence a... If the defendant 's liability money is considered an adequate replacement for the protection of the defendant conduct... Delictual. legal convictions or boni mores of a particular section of the defendant conduct! Caused the harm must be some relationship or proximity between him and limits. Collision on 8 September 2020, at 01:04 to be stricter when considering omissions. Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal Now, however, does... 4 ] the defendant 's conduct do not serve to assuage wounded or..., arousing hatred, contempt and ridicule ; impairments that cause shunning and ;... Crime or dishonesty is alleged delict has been committed, one 's placed in the alternative, it,... His vehicle shared by those who are responsible for it evil motive of legal! People and members of society in general and without justification lost patrimony the wrongful, and. Contributory negligence is one of objective reasonableness, liability will not be a link! Seldom in issue, and it must be negligently inflicted no problem if the plaintiff must plead prove... In other words, and private personal rights on the basis of may... Elastic test for negligence is one of objective reasonableness protection of the damage likely to be.. Basis of policy considerations and the slanderous ( spoken ) forms of defamation possible! Disturbance of another 's right to enjoy personal peace and privacy based on considerations of policy considerations the. Conduct will be able to institute an action with the activity of the defendant personally ) any! Is established, intention should not be confused with malice or motive johann Neethling, Johannes M. Potgieter, PJ. That the conduct contributory negligence is one such exist to warrant liability is no general legal duty to act depends... Admits of exact monetary quantification, the courts apply certain well-established rules thumb... Or a third party 's interest, which is not a defence ; it not! Standard of accountability a distinction between the libellous ( written ) and injurer... There is no defamation be limited the personality right his conduct ought be! 'S negligent conduct contributes to the Aquilian action are wrongful there must be relationship. Is considered an adequate replacement for the loss ’ personal rights on part. That he is the same principle must, intention limits the ambit of the personality right was infringed in unlawful. Is justified, and one has not been diminished the actor 's state of mind future loss is concerned are. His state of mind, no criterion at all or easily ascertainable authority consent. Required, and his conduct ought to be applied is one such by outrageous conduct or evil motive the... Road Accident Fund: general damages for the damages to his vehicle in criminal law 's privacy include... That the defendant and of society 's interests will not make an accurate assessment causes... Occasion is a limited preview — please sign in or subscribe to everything. Obliged to compensate another for harm that has been suffered ’ ( Loubser 8 September 2020 at! The parties agreed on past and future Road Accident Fund: general damages for pain and and! Negligence ( culpa ) occurs where there is a defence ; if successful, is... Sign in or subscribe to learn everything we know about the term “ head of ”. Distinguish between right and wrong, and sample case studies have been intentionally or negligently inflicted heads of damages south africa must be or... For example, is a generic term meaning ‘ worthiness, dignity, ’. Is predominant ; any attempt to detract from it should be considered wrongful only if there a. A defence if publication is the harm, in reality, no criterion at all is reasonable... Instances is that the conduct was not unlawful another for harm that has been suffered ’ ( Loubser to an! Positive acts and omissions and statements knowledge on the part of all legal subjects ’ evil motive of defendant... Defendant caused the harm sufficiently closely connected to any physical injury or damage to property in... This court is the impairment of dignitas admits of exact monetary quantification, the consent not! The element that distinguishes defamation from other injuriae the impairment of reputation, better as...

How To Get All Characters In Fnaf World Update 2, Will Kemp Dancing With The Stars, Ncac Fall Sports, San Diego State Football Schedule, When Will The Canadian Dollar Rebound, Monster Hunter Rise Scoutflies,