HARM

STUDY UNIT 3
OUTLINE OF STUDY UNIT 3

3.1 General Principles

3.2 Patrimonial loss
3.3 Non-Patrimonial loss
3.3.1 & 3.3.2 Pain & Suffering
3.3.3 Infringement of personality rights
GENERAL PRINCIPLES
STUDY UNIT 3.1
3.1 Learning outcomes

 Types of harm;
 Compensatory function of the law of delict;
 Difference between patrimonial and non-patrimonial
loss;
 Types of harm claimed with three main delictual actions;
 Difference between constitutional and delictual
damages.
HARM

 Element of a delict.
 We will use the term “harm” or “loss.”
 We will avoid term “damage” as causes
confusion.
 Damages (remedy) = what a person claims
when they have suffered damage, loss or harm.
DETERMINING HARM

Ask the following questions?

1. Does the Plaintiff have an interest that the law of delict protects?
2. Has the legally protected interest been violated in a negative way?

* compare Plaintiff’s situation before delict was committed with situation

afterwards and if Plaintiff’s interest negatively been impacted HARM
occurred.
ACTIONABLE HARM

* To claim, harm has to be “actionable” – in other words can be compensated for in

delictual action.

 If a Plaintiff wants to claim compensation – ask what for?

Not mutually exclusive
Answer determines delictual action - see examples on next
slide

1. Patrimonial harm = Lex Aquilia

2. Pain and suffering (physical injury & psychological harm) = Germanic remedy
3. Violation personality interest = Actio Iniuriarum
EXAMPLES

A. Person injured in a car accident:

1. Patrimonial loss when hospitalised and when paying medical bills;

2. Pain and suffering and loss of amenities of life

B. Person assaulted:

1. Patrimonial loss
2. Pain and suffering
3. Some instances iniuria
 CONSIDER…..

1. Psychiatric injury?
2. Loss of comfort and support of a loved one?
3. Grief associated with loss of loved one?
4. Mental distress or inconvenience not associated with bodily injury?
5. Pain and suffering associated with another’s injury?

See Union Government v Warneke 1911 AD 657, RK and Others v Minister of Basic Education
and Others [2019] ZASCA 192 and Santam Insurance Co Ltd v Fourie 1997 (1) SA 611 (A)
Remember:

Neethling, Potgieter and Visser-

Only harm in respect of legally recognised

patrimonial and non-patrimonial interests
of a person qualifies as harm.
PATRIMONIAL AND NON-PATRIMONIAL

Harm that one cannot

measure in monetary
Harm to a person’s terms – without an
financial estate equivalent right afforded
protection under
common law of delict
 DELICTUAL AND CONSTITUTIONAL
DAMAGES

Where a person Where the constitutional

experiences patrimonial rights of a person have
or non-patrimonial harm been infringed
PATRIMONIAL LOSS
STUDY UNIT 3.2
3.2 Learning outcomes

 How is patrimonial harm caused?

 Different categories of patrimonial harm;
 Explain prospective loss;
 Types of harm are included in prospective loss;
 Describe the nature and purpose of damages.
PATRIMONIAL LOSS

 Remember – loss or harm to financial estate of a person.

 Financial estate = Includes a person’s current assets and liabilities +

financial aspects associated with rights and obligations that might
arise in the future.

 Value of assets reduced OR debt arises or is increased

 THREE CATEGORIES

Financial loss – Financial loss – Financial loss – purely

personal injury damage to property economic

Medical
Damage to Insurance
expenses due
car after policy not
to car
accident updated
accident
 FUTURE (PROSPECTIVE) LOSS

• At trial the Plaintiff’s loss has not yet materialised BUT clear
loss will arise.
• Calculation must be done at time of trial because of the
“once and for all” rule.
• “Once and for all” rule:

“compels Plaintiff who has suffered accrued or

past damage to institute action in order to
avoid the running of prescription. In other
words – Plaintiff is precluded from waiting to
see if prospective loss will occur.”
 CONTINUED…..

• Where Plaintiff suffers different types of harm as

result of one delict = recover all harm in one claim.

• Predict future loss and claim with loss already

occurred.

See Jowell v Bramwell-Jones 2000 (3) SA 274 (SCA)

and Blyth v Van den Heever 1980 (1) SA 191 (A)
NON-PATRIMONIAL LOSS
STUDY UNIT 3.3
3.3.1 & 3.3.2 Pain and Suffering

Learning outcomes

 What types of harm are included under pain and

suffering;
 Explain what each of these types of harm consists of;
 Explain the nature and purpose of compensation for
pain and suffering.
 NON-PATRIMONIAL LOSS

Infringement
Pain & Suffering
personality rights
 Pain & Suffering

Pain Loss of Amenities of life

Loss of
Physical Psychiatric Loss of life
amenities
Pain Harm expectancy
of life
Disfigurement
/disability
 Pain and suffering Loss of amenities of
life
Pain experienced and pain Diminution in full pleasure of living
continued to be experienced in the AND loss of enjoyment of life
future
Subjective Subjective and Objective

Includes nervous shock, Includes inconvenience,

psychological harm, mental discomfort, loss of expectancy,
anguish or distress AND fear, humiliation due to disability or
anxiety and trauma disfigurement
Sigournay v Gilbanks 1998 (3) SA 275 (A)
Consider the following

A father and his 18 year old daughter was in a car accident.

The daughter has experienced severe shock and the father
has suffered a psychiatric injury.

1. Has any harm been suffered?

2. Patrimonial or non-patrimonial?
3. Who can claim?
4. What can be claimed?
 Pain & Suffering

Pain

Psychiatric
Physical Harm
Pain
PSYCHIATRIC HARM

 Before – only claim if combined with “physical” injuries.

 Now – can claim if:

1. recognised, detectable psychiatric injury

2. Relatively serious.

- Now – cannot claim for ‘normal’ emotional impact if no

psychiatric harm/injury (see RK v Minister of Basic Education)
3.3.3 Infringement of personality rights

Learning outcomes

 List the different personality rights recognised by South

African law of delict;
 Explain what the infringement of each right entails;
 Describe relationship between personality- and
constitutional rights;
 Nature and purpose of satisfaction of infringements of
personality interests.
 NON-PATRIMONIAL LOSS

Infringement
Pain & Suffering
personality rights
 PERSONALITY INTERESTS

1. Bodily integrity (corpus)

2. Reputation (fama)
3. Dignity (dignitas)

• Three recognised in common law

• SA courts later added identity and privacy under dignity
BODILY INTEGRITY

• Physical mental integrity (assault)

• Personal freedom/deprivation of liberty (wrongful arrest)
REPUTATION

 Violation of good name/public esteem.

 Publication of defamatory material of which people became
aware and as a result of which people now think less of the person.
PRIVACY

 Protects person’s interest to enjoy personal space and peace and

tranquillity.
 Subjective test.
 Infringement – violation in legally unacceptable way:
1. Intrusion – (for example searches and seizures by police, entry
private premises, reading of private documents)
2. Disclosure – (for example disclosure of private/confidential facts)
 IDENTITY

* Unique characteristics that distinguishes a person from others.

 Aspects of personality which are distinctive of or peculiar to
a person (eg life history, character, name, handwriting)
 Infringed when aspects associated with a person’s particular
image are used outside the sphere or scope of that image.
DIGNITY

1. Narrow sense – denoting self-esteem (degrading or

insulting effect).
2. Umbrella sense – covers number of personality interests.

• Test is subjective – what person actually experienced.

Think about - How does this differ from the test for violation
of Reputation?
COMMON LAW / CONSTITUTION

Common law Constitution

Reputation Right to dignity and privacy
Dignity Right to reputation and identity?

Privacy

Identity
Bodily integrity (will not now discuss
physical integrity)
CONTINUED…

 Conflict between Constitution and common law?

No
* Many common-law rights and interests translate into constitutional
rights.
* Common law does not have to be identical to concepts found in
constitution – as long as common law is compatible with the
Constitution.
COMPENSATORY FUNCTION OF LAW
OF DELICT
 Remedy for each action:

1. Actio legis Aquiliae – damages

Aim – put Plaintiff in position that she would have been if delict had not been committed.

2. Action for pain and suffering – compensation

Aim – address Plaintiff’s feeling of unhappiness.

3. Action iniuriarum – satisfaction

Aim – provide Plaintiff (and community) with sense of justice.
 PHYSICAL INJURY

PATRIMONIAL DAMAGE TO
LOSS PROPERTY

PURE ECONOMIC
LOSS

HARM
PAIN &
SUFFERING

NON-
PATRIMONIAL
LOSS

INFRINGEMENT
PERSONAILY
RIGHTS
 PAIN

PAIN & LOSS OF AMENITIES

SUFFERING OF LIFE

PSYCHIATRIC INJURY
NON-
PATRIMONIAL
LOSS
BODILY INTEGRITY

DIGNITY
INFRINGEMENT
OF PERSONALITY PRIVACY
RIGHTS
IDENTITY

REPUTATION