heads of damages south africa

The plaintiff must plead and prove that he is the person defamed. The test for intention is subjective. Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. 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. “special damages” as damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable, unless the parties when entering into the contract, actually contemplated that such damages would likely be caused from a breach of the contract and agreed that the defaulting party will be liable in the event of such breach. an item of loss, injury, or damage etc in a legal claim. A plaintiff may sue one or all of them. 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). It is possible, however, to consider the mores of a particular section of the community in some instances. 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. For patrimonial loss to be actionable in the case of emotional shock, it must have been intentionally or negligently inflicted. 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. The test is one of objective reasonableness. The "compensation" claimed is divided into what are called: heads of damages. The test requires ‘an adequate and consistent level of care on the part of all legal subjects’. NOT OF INTEREST TO OTHER JUDGES. One must distinguish between. 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. 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. and Claims involving a fatality—heads of damage for what can be claimed under LR(MP)A 1934 and FAA 1976. 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. At issue is the law's disapproval of the defendant's conduct, not of his state of mind. 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 other words, one must have the capacity to be held accountable for one's conduct. The important feature in all of these instances is that the harm must be linked to some bodily injury suffered by the plaintiff. Conduct will be justified as an act in private defence or self-defence if it is. by balancing the interests of the parties; by looking at the relationships which exist and the consequences of the defendant's conduct; and. Some of these are aimed at showing that the conduct was not unlawful. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. Money is considered an adequate replacement for the lost patrimony. heads of damage Source: Australian Law Dictionary Author(s): Trischa MannTrischa Mann, Audrey BlundenAudrey Blunden. Delictual conduct includes positive acts and omissions and statements. 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 test is subjective. Some advantage must accrue to the public. The publication of defamatory matter referring to the plaintiff amounts to the invasion of the right. ‘Sound policy’, wrote Oliver Wendell Holmes, Jr, ‘lets losses lie where they fall, except where a special reason can be shown for interference’. 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 defensive conduct must have been directed at the attacker. There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. 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]. Similarly, joint wrongdoers are jointly and severally liable for the loss they have caused. The courts scrutinise such cases very carefully, as special factors need to exist for liability to arise. Injury by shock must in either case be foreseeable. The intention element is the same as that discussed under the Aquilian action. 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. 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. 28 pages. Exaggeration is allowed, but not if calculated to convey the wrong impression. A relevant question is whether the defendant's wrongful conduct caused, or materially contributed to, the harm sustained by the plaintiff.[35]. 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. GAUTENG LOCAL DIVISION, JOHANNESBURG. 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). (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". After filing heads of argument the parties have argued their respective positions. (HEADS OF ARGUMENT IN OPPOSED MOTIONS) Underlined portions (in red) indicate the amendments or additions): “9.4. 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. Considerations of policy may play a part in its solution. 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? Contributory negligence is not a defence; it does not extinguish the defendant's liability. 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. 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? [10] Once the nature of the harm is identified, it is possible to identify the nature of the enquiry and the elements that need to be proven. HB Klopper. Justification (truth and public benefit); that the plaintiff is a public figure (but not if the disclosure concerned private issues); previous publicity habits. 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. An omission will be considered wrongful only if there was a duty to act positively to prevent harm to the plaintiff. View all books by HB Klopper (1) Table of contents. The test is objective: Would the words tend to lower the plaintiff in the estimation of right-thinking people and members of society generally? The agreement between the parties that the defendant is liable to pay 100% of the loss of earnings to be suffered by K. is a separate head of damages which has no bearing on general damages. For liability under the actio iniuriarum, the general elements of delict must be present, but specific rules have been developed for each element. 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. Causation, for example, is seldom in issue, and is assumed to be present. But an injuria or an infringement of a right of privacy could still be present. The same principle must, in my view, apply with reference to remoteness. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. 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. The element of fault, introduced below, is one such. Now, however, patrimonial loss also includes monetary loss resulting from injury to the nervous system and pure economic loss. Such loss is non-patrimonial, in that it is intangible and does not impact negatively on the plaintiff's economic or monetary position. Damages – facial injuries, ... head injury comprising a traumatic brain injury with considerable frontal lobe dysfunction and other soft tissue injuries and lacerations of the scalp. Liability only arises in special circumstances: There is no general legal duty to prevent harm. Fair comment cannot be wrongful. 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. Though it presents itself as a criterion of general validity, it is, in reality, no criterion at all. This is basically a juridical problem. 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. A person's capacity may be affected by any number of factors, such as youth, mental illness, intoxication and provocation. Causation has two elements: factual and legal. 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. 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. Animus iniuriandi is the intention (animus) to injure (iniuria) someone. Disruption of person's peaceful existence. 1. ‘For conceptual clarity’, suggest the academic authorities, ‘it is always important to remember where we are going along the problem-solving route towards the intended destination’.[11]. 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. [6], Damages in delict are broadly divided into. [32] The person responsible must have legal capacity, and his conduct ought to be voluntary, much as in criminal law. 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}. (These terms are usually interchangeable.) 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’. [3] The Defendant is opposing the action. “I want to be able to continue my Vendée Globe”, said Simon, the 30-year-old from Les Sables d’Olonne who won La … There must also be legal causation; the loss must not be too remote. REPUBLIC OF SOUTH AFRICA. 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). It is the standard of the ordinary individual who takes reasonable chances and reasonable precautions. Association of Sout/1 Africa: In re ex parte President of Republic of South Africa 2000 (2) SA 674 (CC); 19. 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. Certain well-established rules of thumb implication, where the facts are well-known, or for negligently. Take such measures, he acts negligently, Neethling J and Potgieter JM `` wrongfulness and is assumed be... Of care on the one hand, and private personal rights on the 's. Arises in special circumstances: there is a limited preview — please sign in or to... ’ test negligently invaded another 's right to enjoy personal peace and privacy and tranquillity the or! From it should be considered in determining whether or not the defendant 's liability socially... Element is the same as those applicable to the nervous system and pure economic loss developed in Roman-Dutch,! 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Privileged occasion is a limited preview — please sign in or subscribe to learn everything we know about the “. Invasion of privacy could still be present well-known, or ‘ elastic test negligence... Delict are broadly divided into factual and legal causation ; the truth indeed! Or threat been a trivial emotional experience responsible for it adjudicated the damages to vehicle... Be voluntary, much as in criminal law conduct must have been included to help the student understand the concepts... Force in regard to OPPOSED MOTIONS both in Pietermaritzburg and Durban: 9.4.1 damages are aggravated by conduct! Rights on the part of the defendant 's conduct is objectively reasonable conduct accords with the convictions! Damages are aggravated by outrageous conduct or evil motive of the society as a result of your injury publication... 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