heads of damages south africa

There is, therefore, an important distinction between the two. The plaintiff must plead and prove that he is the person defamed. 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; … To establish negligence, the law sets a standard of conduct (that of the diligens paterfamilias) and then measures the defendant's conduct against it. Again, the wrongfulness element is the same as that under the Aquilian action. sed onBa the knowledge at ... South Africa. 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. Intention (dolus) concerns the actor's state of mind. This page was last edited on 8 September 2020, at 01:04. The court inquires into whether or not the defendant's conduct is socially acceptable. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action.[29]. 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. Heads of Damages – Primer Table of Contents Section A Canada’s Legal System: A Brief Introduction One must, Intention should not be confused with malice or motive. The only heads of damages for determination by this court is the issue of the plaintiff’s general damages. Where damages cannot be computed exactly, a court may exercise its own judgment in the matter, provided it has a factual basis for so doing. 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. In the same way, defamation damages are aggravated by outrageous conduct or evil motive of the defamer. One must distinguish between. 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. [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. 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. 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’. Johann Neethling, Johannes M. Potgieter, & PJ Visser. 1.2 Points of departure and exclusions. and Claims involving a fatality—heads of damage for what can be claimed under LR(MP)A 1934 and FAA 1976. 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. He must be accountable for his actions, having the ability to distinguish between right and wrong, and to act accordingly. how real is the risk of the harm eventuating? 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. The following practice direction is in force in regard to opposed motions both in Pietermaritzburg and Durban: 9.4.1. The test is subjective. 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. (These terms are usually interchangeable.) 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. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. 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 the gravity or seriousness of the possible harmful consequences that are risked. 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. harm, in the form of a violation of a personality interest (one's. 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. Culpa is partly an objective and partly a subjective concept. ANSWER: He will be able to institute an action with the actio legis Aquiliae for the damages to his vehicle. Exaggeration is allowed, but not if calculated to convey the wrong impression. In all instances the court will consider possible defences. [12] The courts take a flexible approach based on considerations of reasonableness and fairness and justice, although there are misgivings. The parties agreed on past and future The only heads of argument that I had seen at that stage, were those drafted by Senior Counsel, which were rather lengthy and dealt with complicated legal issues. 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. 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. 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). Truth is only a defence if publication is also for the public benefit. The emphasis is on freedom of speech. Although delict may be described as at the bottom a system of loss allocation, it is important to note that not every damage or loss will incur liability at law. There must be no compulsion, in other words, and it must not be a reflex action. 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’. 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. Not every insult is humiliating; one must prove contumelia. There are exceptions to the requirement of knowledge of wrongfulness, as in the case of deprivation of liberty or wrongful arrest, which results in attenuated animus iniuriandi.[26]. In 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? Causation has two elements: factual and legal. [5] Roman-Dutch law, based on Roman law, is the strongest influence on South Africa's common law, where delict also falls under the law of obligations. 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. If its conditions are not met, liability will not arise. 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. Page 5 of 46 Applicant's Heads … The intention element is the same as that discussed under the Aquilian action. 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. 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. THE SUPREME COURT OF APPEAL OF SOUTH AFRICA . 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 the harm does eventuate, what is the extent of the damage likely to be; and. If the plaintiff's negligent conduct contributes to the loss, that should be considered in determining the extent of the defendant's liability. 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? assumption of the risk of harm connected with the activity of the defendant. There are, as has already been noted, three main delictual remedies: The various delictual actions are not mutually exclusive. Such loss is non-patrimonial, in that it is intangible and does not impact negatively on the plaintiff's economic or monetary position. This involves a balancing of the interests of the plaintiff, the defendant and of society in general. ‘Sound policy’, wrote Oliver Wendell Holmes, Jr, ‘lets losses lie where they fall, except where a special reason can be shown for interference’. [3] The Defendant is opposing the action. 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. Invasion of privacy is ‘wrongful and intentional interference with another's right to seclusion’. NOT REPORTABLE. Accountability is a prerequisite for fault: The person at fault, to be at fault, must be culpae capax, having the ability to know the difference between right and wrong and to act accordingly. Damages under the Aquilian action do not serve to assuage wounded feelings or to compensate for inconvenience or discomfort or annoyance. It must not have been a trivial emotional experience. 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}. A person's capacity may be affected by any number of factors, such as youth, mental illness, intoxication and provocation. The delictual inquiry ‘is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict’. 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. 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. 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? The test for intention is subjective. Publication is the element that distinguishes defamation from other injuriae. In South Africa, the legal position regarding contributory negligence and the effect on recovery of damages, is governed by the Apportionment of Damages Act 34 of 1956. 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]. Public disclosures concerning private life (by the defendant to others). The question to be answered is whether or not an ordinary, decent, right-thinking person would consider such conduct to be insulting. The most common and important item of general damages is the award for pain and suffering and loss of amenity (PSLA). 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). It is a comprehensive exposition of the law of damages in South Africa and a valuable addition to any litigator's library. The following are examples: Falsity is not essential in defamation cases; the truth, indeed, may be defamatory. 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). by balancing the interests of the parties; by looking at the relationships which exist and the consequences of the defendant's conduct; and. The defendant can then try to rebut this presumption. Unless one is in this sense accountable, one is not accountable for one's actions or omissions; one is, in other words, culpa incapax. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. 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. 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 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. Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. The reasonable person is placed in the position of the defendant. Should the law confirm that the defendant caused the harm, or should liability be limited? It is important to remember that there is a distinction between the question of absence of voluntariness of conduct and that of accountability. 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. 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. Publication is not required, and the defences are the same as for defamation. consent to a specific harmful act of the defendant; and. [18] An important case here is Smith v Leach Brain.[19]. The element of fault, introduced below, is one such. 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. 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. A relevant question is whether the defendant's wrongful conduct caused, or materially contributed to, the harm sustained by the plaintiff.[35]. Courts tend to be stricter when considering whether omissions or statements are wrongful. 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’. 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. Some of these are aimed at showing that the conduct was not unlawful. The flexible test, or ‘elastic test for legal causation’, incorporates subsidiary tests; it does not replace them. 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. 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). 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. 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. In order to succeed with your claim, you must prove one of two things. Similarly, joint wrongdoers are jointly and severally liable for the loss they have caused. There must also be legal causation; the loss must not be too remote. 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 test comprises three elements: The standard was well-articulated in Kruger v Coetzee: For the purposes of liability culpa arises if. HB Klopper. 28 pages. Causation, for example, is seldom in issue, and is assumed to be present. The Supreme Court of Appeal (SCA) has accepted the conditio sine qua non, or ‘but-for’ test, as the one to be applied. There are six established principles: A distinction should be drawn between defences aimed at the wrongfulness element and defences which serve to exclude fault. Is there legal liability, or is the loss ‘too remote’? Road Accident Fund: general damages for pain and suffering. 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. Hatred, contempt and ridicule ; impairments that cause shunning and avoiding and. 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