General principles for

specific actions for delict

Mkhabele CJMM
Lesson covers the following:

Elements of delict
Specific actions for delictual liability
• Aquilian action (actio legis aquiliae)
• Actio iniuriarum and
• Germanic remedy Pain and suffering
 liability without fault:
• Actio de pastu
• Actio de pauperie
Vicarious liability
Five core elements of liability found in delict

• Conduct/Act
• Wrongfulness/unlawfulness
• Fault
• Causation
• Harm/damage
Introduction

The general principles of liability are refined and expressed

differently when considering specific type of delictual liability.
You need to describe the main requirements for liability under
each of the actions namely the actio legis aquiliae, the Germanic
remedy for pain and suffering, the actio iniuriarum, the actio de
pauperie, the actio de pastu and vicarious liability.
Three actions for delict

Actio legis aquiliae

Actio iniuriarum
Germanic remedy for pain and suffering
Other groups of delictual actions (Liability without fault)
What type of compensation can be recovered
with actions of delict above?

• How do you identify the appropriate action for specific delict?

• What do you look at? (Ask yourself)
Actio legis aquiliae

Harm: patrimonial loss, which is financial harm arising from physical damage to person
or property, or loss that is purely economic.
Conduct: either a positive act, an omission or statement.
Causation: factual causation, in that the conduct must have been a conditio sine qua
non of the loss.
Legal causation: in that the link between the defendant’s conduct and the plaintiff’s
harm must not be too tenuous.
Fault: Blameworthiness in the form of dolus (intention) or culpa (negligence). However,
to be blameworthy, people must be accountable for their conduct.
Wrongfulness: wrongfulness deals with the question whether or not the situation in
which the defendant’s culpable conduct caused the harm is legally reprehensible to the
to the extent that liability should be imposed on the defendant.
Actio legis aquiliae

To determine wrongfulness, the circumstance is measured against

the criterion of reasonableness: if the capable causing harm is
objectively, or without law justification (valid defense justifies
the infliction of harm), then it is in the circumstances reasonable
to impose liability.
To determine whether conduct is wrongful: all the other
elements are considered.
Actio iniuriarum

Harm or loss: non-patrimonial harm in the form of violation of a

personality interest, usually classified under the heading of
corpus (bodily integrity), dignitas (dignity) and fama (reputation),
Satisfaction (solatium or sentimental damages) for the wrongful
and intentional injury to personality. eg deprivation of liberty
cases, defamation involving media.
The Germanic remedy for pain and suffering

• Harm or loss for intangible, non-patrimonial harm associated with

personal injury to the plaintiffs for example actual pain,
psychiatric injury, loss of amenities of life and loss of life
expectancy.
Other groups of delictual actions (liability
without fault)

actio de pauperie
• Conduct on the part of domestic animals, unnatural conduct,
termed contra naturam sui generis or conduct stems from inward
excitement or vice (sponte feritate commota) which amount to a
conclusion that society considers the animal’s conduct to be
actionable.
• Deals with ownership of the animal at the time of the injury
Defenses for action de pauperie include: -

The plaintiff was to be blamed

There was fault on the part of third person
There was fault on the controller of the animal
The conduct on the part of another animal
 Vis maior, outside the influence or some extraneous events not
associated with the conduct of any person. –
The plaintiff (or the injured person) was not lawful at the place of
injury.
 Volenti non fit iniuria.
The actio de pastu

Harm in the form of damage to plants, crops or pastures through

the process of grazing.
The domesticated animal must have trespassed on the plaintiff’s
property and grazed on the plants.
The animal must have acted on its own volition
Defenses for actio de pastu include: -

The plaintiff was to blame

 Vis maior, outside the influence or an extraneous events not
associated with the conduct of any person.
Volenti non fit iniuria
Vicarious liability

Vicarious liability arises where one person is indirectly liable,

without fault on her part.
This form of liability is strict, and arises in addition to any
personal liability that the wrongdoer incurs. Someone must have
committed a delict;
All delictual element must have been met, there must be (delict,
course and scope) relationship between wrongdoer and
defendant which the law recognizes e.g mandate, partnership
and employer-employee relationship.
****End of the Report****