A “civil wrong”. It basically deals with the
circumstances in which one person can claim compensation from another for harm that has been suffered.
Damages in delict are
divided into:
1.
patrimonial/special
damages (including medical costs, loss of income and the
cost of repairs);
2.
non-patrimonial
damages/general damages (including pain and suffering,
disfigurement, loss of amenities and injury to personality);
3.
pure
economic harm (not connected to any physical injury
or damage to property).
Three main
delictual remedies/actions to deal
with damages:
1.
Aquilian action (relates
to patrimonial loss):
Harm or Loss – plaintiff
must have suffered harm; harm must be patrimonial, which means monetary loss
sustained due to physical damage to a person or property.
Conduct must
be wrongful (unreasonable and without lawful justification).
Defences
One
must be at fault, and accountable
and one’s blameworthiness must be intentional or negligent.
There
must be causation both factual and
legal.
Damages – The
primary objective is to compensate the
person who has suffered harm. To restore the plaintiff’s patrimony and
place him in a position he would have been in prior to the act of delict
committed on him. Therefore, money is
considered an adequate replacement for the
lost patrimony. A court will not
make an arbitrary award in the absence of available evidence. Where damages
cannot accurately be assumed, a court may exercise its own judgment in the
matter, provided it has facts.
However,
if Plaintiff’s negligent conduct contributes
to the loss, this is considered when determining the extent of the Defendant’s
liability. This basically reduces the
damages award.
2.
Actio iniuriarum (relates to injuries concerning
personality)
Essential elements of liability
General
elements of delict must be present, but specific rules have been developed for
each element. Causation is assumed to be present. The elements of liability
under the actio iniuriarum are as follows:
harm,
in the form of a violation of a personality right (one’s corpus, acts of a sexual
or indecent nature, and wrongful arrest and detention), dignitas (“worthiness,” “dignity” and “self-respect”), and fama (defamation);
wrongful conduct (statements,
either oral or in writing, as well as physical contact or gestures, could also
arise. The principles are the same as those applicable to the Aquilian action.
Intention (must
be at intentional fault – no negligence)
Under
the action iniuriarum, harm consists in the infringement of a personality
right:
Defences
Damages –
public policy determines what should be included. For example: the discharge of
a duty, the exercise of a right or the furtherance of a legitimate interest.
3.
Action for Pain and Suffering
Relates
to pain and suffering and psychiatric injury – derived partly from the Aquilian
action, and partly from the use of reparative fines.
Harm or loss: Pain
and suffering – personal bodily injury to the plaintiff: for example, actual
pain, the loss of amenities of life and the loss of life expectancy.
Conduct:
in the form of a positive act, an omission or a statement.
Wrongfulness or unlawfulness:
unreasonable conduct.
Fault: blameworthiness
in the form of intention or negligence.
Causation: factual
causation and legal causation.
