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. NOT OF INTEREST TO OTHER JUDGES. “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 Roman-Dutch action for pain and suffering (Afrik aksie weens pyn en lyding), or action for solatium, developed in the 17th century partly from the Aquilian action, partly from the use of reparative fines (or zoengeld, compositie) under Dutch customary law. The objective-reasonableness test may be satisfied by looking at the foreseeability of such an injury. It was adopted in England as well as South Africa, ... State fully, the head of damages and its total value that Brad would be able to claim against the wrongdoer to get his vehicle repaired. It does, however, serve to reduce the damages award. 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. NOT REPORTABLE. It reflects the law's disapproval of the defendant's conduct. In the same way, defamation damages are aggravated by outrageous conduct or evil motive of the defamer. 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 important feature in all of these instances is that the harm must be linked to some bodily injury suffered by the plaintiff. if the harm does eventuate, what is the extent of the damage likely to be; and. The purpose of an award under the actio iniuriarum is to provide solace and assuage wounded feelings. The Supreme Court of Appeal (SCA) has accepted the conditio sine qua non, or ‘but-for’ test, as the one to be applied. Contributory negligence is not a defence; it does not extinguish the defendant's liability. A person's capacity may be affected by any number of factors, such as youth, mental illness, intoxication and provocation. In addition to the normal plea to the particulars of claim, the Defendant also served and filed a special plea on 21 June 2010. The court a quo (Mashile J) adjudicated the damages. In addition, the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and. In order to succeed with your claim, you must prove one of two things. what are the costs or difficulties involved in guarding against the risk? University of South Africa Law of damages LAW 4802 - Fall 2016 Register Now Tax-and-Finance-Catalogue-2018-1.pdf. There are several defences excluding intent: Negligence (culpa) occurs where there is an inadequate standard of behaviour. "[9], The harm element is ‘the cornerstone of the law of delict, and our fundamental point of departure’. Where harm admits of exact monetary quantification, the plaintiff must produce sufficient evidence to make an accurate assessment. 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. 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). 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. If you have incurred or will incur expenses for medical or rehabilitation treatment, physiotherapy, pharmaceuticals, medical aids, vehicle and home modifications, or any other reasonable out of pocket expense because of your injuries, then you are entitled to claim reimbursement for those expenses. 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. There must also be legal causation; the loss must not be too remote. One must distinguish between. Max Loubser, Rob Midgley, André Mukheibir, Liezel Niesing, & Devina Perumal. 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. 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? 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. Objectively reasonable conduct accords with the legal convictions or boni mores of the society. 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. 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. 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. 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. Consent to injury, or Volenti non fit injuria, is a full defence; if successful, there is no delict. Only material allegations need be substantially true, except if fraud or crime or dishonesty is alleged. an item of loss, injury, or damage etc in a legal claim. For patrimonial loss to be actionable in the case of emotional shock, it must have been intentionally or negligently inflicted. 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. There will be no fault.) 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’. whether or not the person has the ability to distinguish between right and wrong (that is, the nature of his insight and understanding); and. The defence must have been necessary to protect the threatened interests. CASE NO: 12601/2017. It is a comprehensive exposition of the law of damages in South Africa and a valuable addition to any litigator's library. 2. 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. 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. It requires a balancing of the parties' and of society's interests. Intention (dolus) concerns the actor's state of mind. A.1 Heads of Damages – Primer (updated 130331) Introduction. damages suffered in the abovementioned collision on 8 February 2010. 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. 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’. 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. 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. 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. It is important to prevent it from becoming a disruptive factor in an economic sense. Examples include self-defence, necessity, justification, statutory authority and consent. Publication of true information about public figures is usually for the public benefit. [3] The Defendant is opposing the 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 element of fault, introduced below, is one such. (These terms are usually interchangeable.) There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. The applicable defences are different, however. assumption of the risk of harm connected with the activity of the defendant. He must be accountable for his actions, having the ability to distinguish between right and wrong, and to act accordingly. This head of damage refers to any past and future medical expenses you may face as a result of your injury. Public disclosures concerning private life (by the defendant to others). 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]. Infringement of fama is the impairment of reputation, better known as defamation. Considerations of policy may play a part in its solution. 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. 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. As can be seen from the outline of the essential elements of liability under the actio iniuriarum, causation is not an important issue in this kind of case. 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. 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. Unlike the last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law. The test is one of objective reasonableness. Money is considered an adequate replacement for the lost patrimony. Causation has two elements: factual and legal. 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