2025 Delict Summaries PDF

Study unit 1.2 Sources of delict ------------------------------------------------------------------ Sources and Historical Background of South African Law of Delict ------------------------------------------------------------------ South African legal system is a **hybrid system** combining...

Study unit 1.2 Sources of delict ------------------------------------------------------------------ Sources and Historical Background of South African Law of Delict ------------------------------------------------------------------ South African legal system is a **hybrid system** combining **Roman-Dutch law**, **English law** and **African customary law** (predating colonial settlement and was initially unwritten, elevated by the Constitution). ------------------------ Delict in South Africa ------------------------ Predominantly based on **common law principles.** Legislation applicable to the law of delict: - Road Accident Fund Act 56 of 1996 - Consumer Protection Act 68 of 2008 - Prescription Act 68 of 1969 - Apportionment of Damages Act 34 of 1956 Constitution of 1996 drives the development of the common law of delict to align with multicultural values and the Bill of Rights. ------------------------- Comparative Perspective ------------------------- SA law applies **general principles** (e.g., actio legis Aquiliae, actio iniuriarum). Anglo-American systems (e.g., tort law in US and UK) apply distinct torts for specific situations. ------------------------------------- Importance of Historical Background ------------------------------------- Courts often revisit historical contexts to understand legal principles, particularly from **Roman and Roman-Dutch law.** **Case: Nkala and Others v Harmony Gold Mining Co \[2016\]:** - Plaintiffs sought to extend the transmissibility of delictual claims - **Transmissibility**: whether plaintiff's delictual\ action can be transferred to his estate if he dies before claim has been finalised (e.g., for pain and suffering). - The court developed common law in line with section 39(2) of the Constitution, adapting it to modern procedural complexities. - **Nature of the Case:** - A class action brought by current and former mineworkers employed in South Africa's gold mining industry. - Plaintiffs suffered from silicosis and tuberculosis (TB), caused by prolonged exposure to silica dust in mines. - **Core Issue:** - Whether the delictual claims for pain and suffering of deceased mineworkers could be transmitted to their estates if the workers died before litis contestatio (stage where pleadings are closed). - **Key Legal Principles** - **Claims for patrimonial loss** (e.g., medical expenses) under actio legis Aquiliae can be transmitted to the deceased's estate regardless of the stage of proceedings. - **Claims for non-patrimonial loss** (e.g., pain and suffering, loss of amenities) under actio iniuriarum and actions for pain and suffering are transmissible **only after litis contestatio.** (If plaintiff dies before litis contestatio, claim falls away.) - **Plaintiffs' Argument:** - The common law rule on non-transmissibility of claims for pain and suffering before litis contestatio was unjust and incompatible with the Bill of Rights. - Requested the court to develop the common law under Section 39(2) of the Constitution to ensure justice for mineworkers and their families. - **Constitutional Considerations** - Section 39(2) of the Constitution: Requires courts to promote the spirit, purport, and objects of the Bill of Rights when interpreting or developing common law. - **Court's Findings** - Explored the Roman and Roman-Dutch origins of transmissibility rules and found that these rules were formulated under vastly different social, economic, and legal conditions, making them unsuitable for modern South Africa. --------------------------------------------- Historical Development of Delictual Actions --------------------------------------------- **Delict in Roman Law** Obligations arose from contracts, delicts, or quasi-delicts. Recognized four major delicts: - Furtum (theft). - Rapina (robbery). - Damnum iniuria datum (wrongful property damage). - Iniuria (insulting behaviour). **Damnum Iniuria Datum** Initially limited to direct physical damage (e.g., livestock or property). Expanded to include patrimonial loss caused without physical damage (e.g., loss of a slave). **Iniuria** Covered: - Physical assaults. - Infringements of dignity (e.g., tearing a toga). - Violations of reputation (e.g., public affronts). **Damage by Animals** Recognized liability for harm caused by: - Domestic animals (actio de pauperie). - Grazing animals (actio de pastu). - Wild animals (actio de feris). **Quasi-Delicts** Liability without fault in scenarios like: - Objects poured down or thrown (res effusae vel deiectae). - Dangerous items placed precariously (res positae vel suspensae). - Liability of stable-keepers, skipper and inn keepers (nautae, caupones, stabularii). **Modern Application:** Actio de Effusis Vel Deiectis and Actio de Positis Vel Suspensis are still applicable in South African law. **Limitations**: These actions are not broadly extended beyond their original Roman law principles. **Case: Swart v Shaw t/a Shaw Racing Stables 1996 1 SA 202 (CPD)** **Application**: Liability of innkeepers or stable keepers as recognized in Roman law remains relevant. **Restriction**: This liability applies only to traditional definitions (e.g., stable-keepers and low-class innkeepers) and does not extend to modern roles like racehorse trainers. **Action for Pain and Suffering** **Roman postiton:** Claims for **patrimonial loss** (e.g., medical costs) were not allowed under actio legis Aquiliae because individuals were not regarded as \"owners\" of their own bodies. **Later Development**: Patrimonial loss claims became permissible, but non-patrimonial loss (e.g., pain and suffering) remained excluded. **Roman-Dutch Law Position** Independent remedy for **non-patrimonial losses**, such as pain, suffering, disfigurement, and loss of amenities of life. **Origin:** Rooted in Germanic law, separate from the lex Aquilia. **Modern Evolution**: evolved into the contemporary action for pain and suffering. ---------------------------------- African Customary Law and Delict ---------------------------------- Divided into **official customary law** (written codes) and **living customary law** (observed practices). No clear distinction between criminal law and delict. Recognized delicts include: - Sexual wrongs (e.g., defloration, adultery). - Property damage (e.g., replacement of killed livestock). - Causing injury or death traditionally seen as crimes, not delicts, until amended by statutes like the **Black Laws Amendment Act 76 of 1963.** Study Unit 2: Conduct -------------- Introduction -------------- **General rule**- delictual liability is based upon voluntary human conduct. Conduct requires the plaintiff to there was behaviour linked to the harm Behaviour such as: - A positive physical act - A positive statement or comment (commission) - A failure to do or say something (omission) There is no general duty to prevent harm to others **Animal behaviour** - **Action de pauperie**- conduct of a domesticated animals where the owner is at fault - **Action de pastu**- harm to plants & crops due to domesticated animal grazing. --------------- Human Conduct --------------- The conduct must be committed by a human thus defendants are **natural persons.** **Juristic persons** may be sued delictually such as decision of board of directors becomes the company's decision. **Vicarious liability-** employers will be held liable for delict committed by an employee provided delictual requirements are met. ------------------------------------------- Voluntary Conduct & Defence of Automatism ------------------------------------------- **Voluntary conduct**- person should be able to direct muscular activity. Children & mentally ill persons can act voluntarily but may lack accountability thus the courts will not hold them liable. **Accountability**- ability to distinguish between right & wrong and to act accordingly **Defence of automatism**- defendant must prove he acted involuntarily or mechanically. **Conduct will not be voluntary when:** - Compulsion (vis absolute) - Reflex muscular movements - Unconscious state **The defence will not succeed when:** - **Impulsive or spontaneous acts** - **Intentional prior conduct-** deliberately induced to cause harm to another - **Negligent prior conduct**- defendant voluntarily engaged in conduct that led to automatism. Reasonable foreseeability to cause harm in this state.  Study Unit 3: Harm Actual or potential harm must occur for a plaintiff to seek compensation or reparation for damage. It is possible for a person to suffer various forms of harm at the same time. -------------------------------------- Patrimonial and non-patrimonial loss -------------------------------------- Patrimonial loss refers to a person's financial estate. To determine harm, evaluate the estate before and after the incident and compare- **Sum Formula** **Lex Aquila** action for patrimonial harm. **3 broad categories of patrimonial loss** 1. Financial loss associated with personal injury 2. Financial loss associated with damage to property 3. Purely economic loss Non-patrimonial harm is harm that cannot be measured in monetary terms such as pain, inconvenience and shock. Use the **Germanic remedy for pain and suffering** if pain & suffering has occurred & the **Actio Iniuriarum** for a violation of personality interests. ------------------ Pain & suffering ------------------ Consist of 2 concepts: 1. Pain & suffering in the literal sense 2. Loss of amenities of life A plaintiff cannot claim pain & suffering for the pain experienced by seeing harm caused to someone, the harm must be associated with a physical injury to the plaintiff. Pain must be experienced & continue to be experienced in the future. Pain can include: - Psychological harm - Mental anguish - Fear & anxiety Loss of amenities of life refers to the full pleasure of living that has been affected by the harm. Loss of amenities can include: - General inconvenience - Discomfort - Loss of life expectancy - Humiliation **Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W)** The plaintiff suffered severe brain injuries resulting in a permanent vegetative state. Medical prognosis indicated the plaintiff would never regain consciousness and had an estimated life expectancy of three years. The claim was made for loss of amenities of life, along with pain and suffering caused by the injuries. **Legal Issue:** Could damages for pain and suffering and loss of amenities of life be awarded to a plaintiff in a vegetative state, given the lack of awareness of their condition? **Court's Findings** - Even though the plaintiff lacked awareness, the loss of the ability to enjoy life was an objective harm. - Damages for the loss of amenities of life were awarded. - Court allowed compensation for pain and suffering based on the idea that harm had occurred prior to the vegetative state and could continue objectively during it. **Judgment** - The court extended damages to include pain, suffering, and loss of amenities of life for the plaintiff. - Judgment prioritized an objective approach to compensation, emphasizing the harm caused irrespective of the plaintiff\'s awareness. - Same approached later followed in: Reyneke v Mutual and Federal Insurance Co Ltd. 1991 **Collins v Administrator, Cape 1995 (4) SA 73 (C)** The plaintiff sustained severe brain injuries, leading to permanent vegetative state with reduced life expectancy. Plaintiff had no intellectual function, no self-awareness, and no awareness of their environment or condition. A claim was made for pain and suffering and loss of amenities of life. Legal Issue: Should damages for pain and suffering and loss of amenities of life be awarded to a plaintiff who lacks the capacity to experience or be aware of the harm? Court's Findings - Rejected the claim for pain and suffering, said compensation was pointless as the plaintiff could not perceive or experience the award due to the lack of awareness. - Ruled that awarding damages for loss of amenities of life in this case would serve no purpose, as the plaintiff had no cognitive ability to appreciate quality of life Judgment - No damages were awarded for pain and suffering or loss of amenities of life - The court emphasized a subjective approach focusing on the plaintiff\'s awareness of the harm and the utility of the compensation ------------------------------------ Infringement of personality rights ------------------------------------ Three classic personality interests are: 1. Corpus (bodily integrity) 2. Dignitas (dignity) 3. Fama (reputation) **Bodily integrity** is normally violated by an assault or deprivation of liberty such as wrongful arrest. A Plaintiff can experience a violation of psychological integrity as a result. **Dignity** was used in both in a narrow sense, denoting self-esteem & in a wide sense which covers a variety of personality interests. To violate dignity a defendant's behaviour must have a degrading or insulting effect. The test is subjective & focusses on what the plaintiff experienced. **Reputation** is violated by the publication of defamatory material which is seen by people other than the plaintiff & defendant. As a result of what is said or done people now think less of the plaintiff than previously. Study unit 4: Causation Causation in delict is the process of establishing the link between the defendant's conduct and the harm suffered by the plaintiff. It consists of two components: factual causation and legal causation. ------------------- Factual Causation ------------------- Determines whether the defendant's conduct was a cause in fact of the harm or materially contributed to it. A **factual link** must be established before considering legal causation. **Key Test: Condictio Sine Qua Non Test** ("But For" Test) **Purpose:** Determines whether the harm would have occurred but for the defendant's wrongful conduct. **Process:** **Positive Acts**: Mentally \"eliminate\" the defendant\'s act from the chain of events to assess if harm still would have occurred. **Omissions**: Hypothetically \"insert\" lawful conduct in place of the omission to determine if harm would have been avoided. **Burden of Proof**: The plaintiff bears the onus of proving that the defendant's conduct caused the harm. **[Application in Scenarios]** **1. Positive Conduct** **Example**: A stack of bricks becomes unstable, and Bongi is instructed to work under it. If the bricks fall and injure Bongi's, eliminating the instruction (wrongful conduct) would show whether the harm would have occurred. \- If not, the instruction is a necessary condition for the harm. **2. Omissions** **Example**: An ambulance driver negligently delays Bongi\'s transport to the hospital, and complications arise. Hypothetically inserting proper conduct (timely transportation) determines whether harm would have been avoided. **Case Law: Minister of Police v Skosana (1977)** - Plaintiff's husband (Mr. Skosana) was arrested and detained by the police. - During detention, he fell ill and required medical attention. The police failed to provide timely and adequate medical care. - Mr. Skosana passed away due to complications from his illness. - Plaintiff sued, alleging that the police\'s negligence contributed to his death. **Legal Issue** - Did the police's failure to act (omission) **cause or materially contribute** to Mr. Skosana's death? **Court's Analysis** 1. **Factual Causation**: - Court applied the **condictio sine qua non test**, asking whether Mr. Skosana's death would have occurred **but for** the police's failure to provide medical care. - Court found their omission materially contributed to his death, satisfying factual causation. 2. **Legal Causation**: - Using the **reasonable foreseeability** test, the court held that the harm (death) was a foreseeable consequence. **Judgment** - Police were held liable for Mr. Skosana's death, as their negligence **caused and materially contributed** to the harm. **Mafesa v Parity** **Versekeringsmaatskappy Bpk (1968)** - Plaintiff sustained a leg fracture in a motor vehicle accident and underwent surgery to insert a steel plate. - After being discharged, the plaintiff was instructed not to place weight on his leg. - While using crutches without rubber tips on a smooth floor, the plaintiff slipped, causing a second injury that required further surgery. - Plaintiff sued the motor vehicle insurer for damages related to both incidents. **Legal Issue** - Did the second injury constitute a **novus actus interveniens**, breaking the causal chain between the defendant's original conduct and the harm? **Court's Analysis** 1. **Factual Causation**: - Initial motor vehicle accident factually caused the first injury. 2. **Novus Actus Interveniens**: - Second incident was deemed an **independent and unforeseeable event** caused by the plaintiff's disregard for safety precautions. - Second injury broke the causal chain, limiting the insurer's liability to damages resulting from the first incident. **Judgment** - Court held the second incident was a **novus actus**, and the insurer was not liable for damages related to the second injury. **[Critique of the Condictio Sine Qua Non Test]** 1. **Clumsy and Circuitous Reasoning:** test requires indirect reasoning, where judges mentally remove, or substitute conduct to determine causation. 2. **Ineffectiveness in Cumulative Causes**: Fails in cases with multiple independent causes (e.g., two people starting fires that together destroy a house). Test cannot determine responsibility when harm would have occurred even if one actor's conduct is "thought away." 3. **Lack of Flexibility:** The test is rigid and may not capture the complexity of modern cases involving concurrent causes or indirect harm. **[Alternatives to the Condictio Sine Qua Non Test]** - **Material Contribution**: Focuses on whether the defendant's conduct significantly increased the likelihood of harm. - **Common Sense and Human Experience**: Relies on practical reasoning to establish causation in ambiguous cases. - **Increasing Risk**: Addresses conduct that creates opportunities for harm. ----------------- Legal Causation ----------------- Determines whether the link between the defendant's conduct and the harm is **sufficiently close** to justify holding them liable. It serves to **limit liability**, excluding harm that is too remote or far removed from the conduct. **Tests for Legal Causation** 1. **Adequate Causation**: Liability for harm that is a likely and foreseeable consequence of the conduct. 2. **Direct Consequences**: Liability for harm that directly flows from the conduct. 3. **Reasonable Foreseeability**: Liability only for harm that could reasonably have been foreseen. 4. **Fault-Based Theory**: Liability tied to the defendant's intent or negligence. **[Flexible Approach (General Test) ]** Established in **S v Mokgethi (1989)** and further developed in **International Shipping Co v Bentley (1990**). **Key Principles:** 1. Factual link must be **sufficiently strong** to justify liability. 2. The relationship between conduct and harm should be **close or direct enough**. 3. **Policy considerations** of reasonableness, fairness, and justice are key. **Case Law: S v Mokgethi (1989)** - During a bank robbery, the defendant shot a bank teller in the back, paralyzing him. - The teller later died, allegedly due to his failure to follow medical advice regarding his paralysis. - The defendant argued that the teller's non-compliance with medical advice was an **intervening cause** that broke the causal link between the shooting and the death. **Legal Issue:** Was the defendant's conduct the **legal cause** of the bank teller's death, or did the intervening event (failure to follow medical advice) break the causal chain? **Court's Analysis** 1. **Factual Causation**: - Court found that the shooting factually caused the injury, which ultimately led to the teller's death. 2. **Legal Causation**: - Applying the **flexible approach**, the court considered fairness, reasonableness, and justice. - While the failure to follow medical advice contributed to the harm, the defendant's conduct remained sufficiently connected to the death to justify liability. **Judgment:** The court held the defendant liable for the death, as the failure to follow medical advice did not entirely sever the causal link **International Shipping Co v Bentley (1990)** - Bentley, a liquidator, deposited funds belonging to a company under liquidation into a trust account. - Due to his negligence, the funds were misappropriated by the trust holder. - International Shipping Co sued Bentley for the loss, arguing that his negligence caused the harm. **Legal Issue:** Was Bentley's negligence both the **factual** and **legal cause** of the loss? **Court's Analysis** 1. **Factual Causation**: - The court accepted that Bentley's negligent deposit of funds factually caused the loss. 2. **Legal Causation**: - The court applied the **flexible approach**, asking whether the link between Bentley's conduct and the harm was sufficiently close to impose liability. - The court found that the loss was too remote, as the trust holder's misappropriation constituted an independent act beyond Bentley's control. **Judgment**: The court dismissed the claim, holding that the loss was **too remote** to attribute liability to Bentley. **[Novus Actus Interveniens (Intervening Cause)]** A new, independent, and unforeseeable event that breaks the causal chain between the defendant's conduct and the harm. **Key Factors** 1. If the intervening event is **reasonably foreseeable**, it does not break the chain of causation. 2. Examples of intervening causes: a. Conduct of the plaintiff (e.g., ignoring medical advice). b. Conduct of a third party (e.g., ambulance driver's negligence). c. External events (e.g., natural disasters). **[Talem Qualem Rule (Thin Skull Rule)]** The defendant takes the plaintiff as they find them, liable for all harm caused, including harm exacerbated by pre-existing conditions. Example: If a victim has a fragile condition that increases the severity of harm, the defendant remains fully liable. --------------------------------- Key Principles and Distinctions --------------------------------- **Factual vs. Legal Causation:** - Factual causation focuses on whether the harm occurred because of the conduct - Legal causation assesses whether liability should be imposed, considering fairness and remoteness. **Policy Considerations:** Legal causation integrates societal values, ensuring liability is reasonable and just.  Study Unit 5: Fault in Delict **Fault** is a critical element of delictual liability, determining whether a person can be blamed and held responsible for harm caused wrongfully to another. It revolves around the concept of **culpability**, which is the blameworthiness of a person. ---------------- Accountability ---------------- Accountability refers to the capacity to be held at fault. For someone to be accountable in delict, they must possess the maturity or ability to distinguish between right and wrong and act accordingly. Certain characteristics can exclude accountability, such as: - **Youth** - **Mental illness or disease** - **Emotional distress** - **Intoxication** Before assessing fault in terms of intention (dolus) or negligence (culpa), one must first establish whether the person is capable of being blamed. ------------------- Dolus (Intention) ------------------- Refers to the will to achieve a specific wrongful consequence, known legally as **animus iniuriandi.** - The test for intention is **subjective** and focuses on the defendant's state of mind: - Did they have the will to bring about the wrongful consequence? - Did they know that causing such consequences would be wrongful? -------------------- Culpa (Negligence) -------------------- Culpa refers to failing to meet the standard of conduct that society considers appropriate under the circumstances. - The test for negligence is **objective**: - The defendant's actions are compared to the expected standard of a reasonable person. - It evaluates whether the defendant\'s conduct fell short of this standard, regardless of their mindset. ---------------------------------- Factors Excluding Accountability ---------------------------------- Certain personal attributes or situations can exclude accountability, meaning the person lacked the capacity to act in a blameworthy manner. These include youth, mental illness or emotional distress, intoxication, and provocation. **Youth:** Accountability in children is assessed according to their age and maturity, with legal presumptions adjusted for developmental stages: 1. **Children under seven (infantes):** Irrebuttably presumed to be *culpae incapax*, meaning they lack legal capacity regardless of their actual mental or emotional state. 2. **Children aged 7--14:** Rebuttable presumption of *culpae incapax*. Unless proven otherwise, children in this age group are deemed incapable of fault. 3. **Children aged 14--18:** Presumed to be *culpae capax*. Unless evidence shows they lacked accountability, children in this category are considered legally responsible for their wrongful conduct. **Case: Weber v Santam Versekeringsmaatskappy** A seven-year-old child, Marius, was struck by a car while playing in the sand. Despite his mother's previous warnings about traffic, the court found him *culpae incapax* due to his age-related impulsiveness and focus on play, which deprived him of awareness of his surroundings. **Eskom Holdings Ltd v Hendricks** Jacques, an 11-year-old boy, sustained injuries after climbing a pylon to touch glass insulators. The court recognized the child's inability to act rationally despite understanding the dangers, finding him *culpae incapax* due to his age and impulsive curiosity. **Mental Illness or Emotional Distress:** A person suffering from mental illness or severe emotional distress at the time of the delict may be deemed *culpae incapax* if they: - Cannot distinguish between right and wrong. - Are unable to act in accordance with their understanding of this distinction. **Case: S v Campher** A woman accused of murdering her abusive husband was acquitted after the court found she suffered from a severe but temporary mental disturbance. Her actions were driven by prolonged emotional and physical abuse, rendering her incapable of controlling her impulses at the time of the act. **Intoxication:** The impact of intoxication on accountability depends on its degree: 1. **Slight intoxication:** Does not exclude accountability, as the person remains capable of distinguishing between right and wrong. 2. **Extreme intoxication:** May render a person *culpae incapax*, particularly if they lose consciousness or control over their actions. **Case: S v Chretien** While heavily intoxicated, Chretien drove a minibus into a crowd, killing one person and injuring others. The court found he lacked the intention required for liability due to his extreme intoxication, emphasizing that the degree of intoxication determines accountability. The judgment remains applicable in delict, unaffected by subsequent statutory provisions addressing criminal liability for intoxicated conduct. **Provocation:** may exclude accountability or fault by affecting a person's: - Ability to control their actions. - Awareness of the wrongfulness of their behavior. Severe provocation can cause a temporary loss of control akin to temporary insanity, rendering the person *culpae incapax*. Lesser provocation may still mitigate fault by showing an absence of intention. **Case: Bennett v Minister of Police** The court held that verbal provocation could not justify a retaliatory physical assault. Thus, verbal provocation does not exclude wrongfulness or accountability. -------------------------------------------------- Legal Concepts of Accountability and Culpability -------------------------------------------------- **Accountability:** Determines whether the person can be blamed for their actions. **Culpability:** Assesses the person's state of mind (*intention*) or failure to meet societal standards (*negligence*). Accountability is the foundation of fault. If a person lacks accountability, they cannot be held culpable for wrongful conduct. Study Unit 5.3 -- Intention Definition of Intention and Its Role in Law A person is at fault when they intentionally cause harm, knowing their actions are wrongful. When a court concludes that a defendant acted with intention, it reflects the law\'s disapproval of the defendant\'s reprehensible mindset. The inquiry into intention is subjective, focusing on the defendant\'s state of mind at the time of the delict. -------------------- Forms of Intention -------------------- 1. **Dolus Directus (Direct Intention):** Exists when the wrongdoer's primary aim is to achieve a specific consequence. Intention is established if the desired outcome was a certainty or possibility foreseen and acted upon, even if the result did not occur as exactly foreseen. 2. **Dolus Indirectus (Indirect Intention):** Occurs when achieving one intended consequence (A) inevitably results in another harmful consequence (B), which the wrongdoer foresees. 3. **Dolus Eventualis (Intention by Acceptance):** Arises when a person foresees a possible harmful consequence but reconciles themselves with the risk and continues their actions. **Two-part test:\ **a. Did the wrongdoer subjectively foresee the harmful consequence?\ b. Did they reconcile with this possibility and proceed? ------------------------- Components of Intention ------------------------- The concept of intention has two core components: 1. **Direction of Will:** This component requires that a person's will is directed towards achieving a specific result, or at the very least, the person must accept the potential consequences of their actions. 2. **Consciousness of Wrongfulness:** Consciousness of wrongfulness means that the person must know their conduct and its consequences are illegal or contrary to societal convictions. **Case Law S v Humphreys:** Humphreys, driving a minibus, collided with a train while crossing a level crossing with boom gates down and warning signals flashing. The court found that he had foreseen the possibility of fatal injuries, but it was unclear if he reconciled himself to that possibility. The court concluded that there was no evidence that Humphreys had reconciled himself to the possibility of fatal injuries, meaning dolus eventualis was not established. **Director of Public Prosecutions, Gauteng v Pistorius:** Pistorius shot and killed his girlfriend, Reeva Steenkamp, by firing through a locked toilet door. He claimed he mistook her for a burglar. The SCA ruled that Pistorius demonstrated dolus eventualis because, despite not intending to kill Reeva specifically, he foresaw the possibility of someone being killed and proceeded with his actions anyway, disregarding that risk. **Maisel v Van Naeren:** Van Naeren sent a defamatory letter in the mistaken belief that it was legally required, sending it to the Rent Board Chairperson. The court found no intention as Van Naeren did not realize his conduct was wrongful, and thus lacked the necessary consciousness of wrongfulness. **Minister of Justice v Hofmeyr:** Hofmeyr was wrongfully detained in solitary confinement, relying on a misinterpretation of prison regulations. The court held that for cases involving wrongful deprivation of liberty, such as unlawful detention, the mere direction of will suffices to establish intention, even if there was no consciousness of wrongfulness. The Minister of Justice was found liable for the unlawful detention. **Special Cases in Intention** - **Intention without Consciousness of Wrongfulness:**\ In specific cases of *iniuria* (e.g., wrongful deprivation of liberty), intention can be established through the mere direction of will, without requiring consciousness of the wrongfulness of the act. This is because of the policy implications for protecting individuals\' rights, such as the prohibition of unlawful detention. ---------------------- Motive vs. Intention ---------------------- **Intention** refers to the specific mental state that leads a person to act with the purpose of causing harm, while **motive** refers to the underlying reason or impulse behind the formation of intention. - While motive can help to demonstrate intention, it is distinct from intention itself. Courts use motive as part of the evidence to infer intention, particularly in understanding whether the defendant was acting maliciously or with a more benign purpose. - A person's motive can indicate whether they were conscious of the wrongfulness of their actions. For instance, a good or noble motive may suggest a lack of awareness of wrongdoing, while a malicious motive suggests an intention to harm. ------------------- Proving Intention ------------------- The plaintiff bears the burden of proving that the defendant acted with intention. - Given the subjective nature of intention, this is typically done through inferential reasoning, where the court examines the surrounding circumstances and the nature of the alleged delict (wrongful act). The court may conclude that the defendant must have had the requisite state of mind based on the evidence presented. - A general rule in delictual cases is that a person is presumed to intend the natural and foreseeable consequences of their actions. --------------------------------- Defences that Exclude Intention --------------------------------- Once intention is proven, the defendant can raise various defenses to exclude their liability for the delict. These defenses may negate either of the two components of intention: direction of will or consciousness of wrongfulness. 1. **Mistake:** - A genuine, bona fide mistake can negate either direction of will or consciousness of wrongfulness. - A mistake of fact or law, regardless of reasonableness, can exclude intention if the defendant believed their conduct was lawful. - **Example:** In *Maisel v Van Naeren*, the defendant genuinely believed he was acting lawfully by sending the letter, which negated the necessary intention for defamation. 2. **Jest:** - The defense of jest applies when the defendant claims their actions were meant as a joke. - For this defense to succeed, the defendant must demonstrate that their actions were genuinely intended as a joke and that the surrounding circumstances would reasonably allow others to perceive it as such. - **Example:** In *Masch v Leask*, the court rejected the defense of jest because the defendant did not prove that his comments were genuinely intended as a joke and understood as such by others. 3. **Intoxication:** - Intoxication may be used as a defense to exclude intention if the defendant was so intoxicated that they could not properly direct their will or understand that their conduct was wrongful. - However, intoxication does not automatically negate intention unless it reaches a level where the defendant could not form the requisite state of mind. 4. **Provocation:** - If a person's actions were provoked, they may be able to exclude intention, particularly when the provocation prevented them from realizing their conduct was wrongful. - This is more likely in cases where the provoked person acted impulsively without time to reflect on the consequences. 5. **Emotional Distress:** - Severe emotional distress may also be used to negate the formation of intention. When a person is emotionally distressed to the point where they cannot form a deliberate intention, their actions may be excused. Study Unit 5.4 - General Principles of Negligence Negligence occurs when a defendant's actions are compared against a societal standard of care, defined by the \"reasonable person\" concept. These standard measures whether the defendant's actions were reasonable and if they align with society's expectations of acceptable conduct. If a defendant's behaviour deviates from this standard, they may be found negligent. A reasonable person is an abstract concept used to assess the defendant\'s actions. This standard does not expect exceptional skill or care but assumes a level of competence that an average person would display in similar circumstances. The reasonable person standard is dynamic and adjusts to society\'s evolving expectations. -------------------- Test of Negligence -------------------- The test as established in **Kruger v Coetzee**, involves two key aspects: foreseeability and preventability. The defendant must have foreseen the possibility of harm from their conduct and failed to take reasonable steps to prevent it. **Case law: Kruger v Coetzee** Kruger was found not negligent despite his horses straying onto a road, as he had already taken reasonable steps (complaints to the council and contractors), but the court could not find evidence of other feasible precautions. The core test examines whether a reasonable person would have foreseen the risk and acted to prevent harm. -------------------------------------------- Four Key Questions in Assessing Negligence -------------------------------------------- 1. What would a reasonable person do in the defendant\'s position? 2. Would the reasonable person foresee harm arising from the defendant\'s actions? 3. Would the reasonable person take steps to prevent the harm? 4. How does the defendant\'s conduct compare to what the court would expect from a reasonable person? --------------------------- Two Pillars of Negligence --------------------------- 1. **Foreseeability of harm**: The risk of harm must be reasonably predictable based on the circumstances. 2. **Preventability of harm**: The harm should be preventable by a reasonable person with adequate action. **Case law: Lomagundi Sheetmetal and Engineering v Basson** a welding accident caused by sparks igniting nearby stover illustrated how foreseeability and preventability guide negligence. Despite the low likelihood of fire, the extent of potential damage and ease of prevention (moving the stover) made negligence clear. **Stratton v Spoornet** The court assessed whether Spoornet should have foreseen the risk of children getting hurt by an electrical shock. The court concluded the risk of injury from the shock was not foreseeable based on the circumstances, even though the harm could have been serious. --------------------------- Foreseeability Approaches --------------------------- Two views exist on foreseeability: 1. **Abstract/Absolute Approach**: Focuses only on whether the defendant foresaw any harm, regardless of the type or extent. 2. **Concrete/Relative Approach**: Considers whether the specific harm that occurred was foreseeable based on the defendant's actions. ------------------------ Preventability of Harm ------------------------ Once foreseeability is established, the next step is determining whether the harm could have been prevented. The defendant's failure to prevent foreseeable harm, when reasonably possible, can be deemed negligent. Factors like the magnitude of risk and the cost of preventing harm influence this determination. -------------------------------- Factors Influencing Negligence -------------------------------- Several factors help define the reasonable standard of care: - **General practice**: Following accepted practices typically indicates reasonable conduct - **Legitimate assumption of others' reasonableness**: A reasonable person assumes others will behave reasonably. - **Sudden emergencies**: People facing emergencies are held to a lower standard of care - **Breach of statutory duty**: Violating laws or regulations may indicate negligence. - **Inherently dangerous activities**: Greater care is required when dealing with dangerous situations. - **Vulnerable persons**: Extra care is needed when children, disabled, or intoxicated people are involved. ---------------------------------------------- Influence of the Defendant's Characteristics ---------------------------------------------- The standard of care may be adjusted for certain characteristics of the defendant: - **Beginners**: While beginners are expected to exercise care, the standard is lower compared to experts - **Experts**: A reasonable expert is expected to demonstrate skill in their field. - **Children**: Although children can be held liable, their negligence is judged based on their age and maturity, but the objective test of a reasonable person still applies. -------------------- Proving Negligence -------------------- The plaintiff has the burden to prove negligence by demonstrating, on a balance of probabilities, that the defendant\'s conduct was unreasonable. In some cases, the defendant may have the burden of proving they were not negligent, especially when statutory presumption of negligence applies. The principal **res ipsa loquitur** allows negligence to be inferred from the facts, without needing direct evidence. ----------------------------------------------------- Distinction between Negligence and Intentional Harm ----------------------------------------------------- Negligence involves failure to meet the reasonable person standard, resulting in harm, while intentional harm involves acting with the knowledge that the act is wrong or harmful. Negligence is judged objectively, while intentional harm involves a subjective assessment of the defendant's intent. Study Unit 7.4 Concurrence of remedies **What is the concurrence of remedies?** - **Basic principle:** 1 wrongful act (delict) may result in different forms of harm/loss. - **THEREFORE:** 1 act can give rise to the use of several remedies. - These remedies may be: - **SIMILAR:** Only delictual actions. - **DISSIMILAR:** Both delictual and contractual actions. **Remember the effect of the \"once and for all\" rule:** If different types of harm arise from one cause of action, they must be claimed at the same time. When considering the concurrence of delictual remedies, look at: - **WHEN** do these concurrences happen? - **Which forms of harm?** - **Which actions?** - **Which type of restitution?** --------------------------------------------------------------------------- Concurrence of Actio Legis Aquiliae and the Action for Pain and Suffering --------------------------------------------------------------------------- **Example:** Anna is assaulted by Bheki and sustains serious injuries and must receive medical treatment at a hospital, which she must pay for herself. Anna experiences pain and discomfort for 6 months and requires specialized physiotherapy. **Steps to follow:** 1. **Identify the different types of harm experienced (Anna):** - **Cost (R)** of medical treatment. - Pain and discomfort. - **Cost** of physiotherapy. 2. **Classify harm based on patrimonial or non-patrimonial loss:** - Cost of medical treatment and physiotherapy = **patrimonial loss.** - Pain and discomfort = **non-patrimonial loss** (pain and suffering). 3. **Identify the applicable actions:** - **Patrimonial loss:** claim with **actio legis Aquiliae.** - **Pain and discomfort:** claim with **action for pain and suffering.** **Conclusion:** **Actio legis Aquiliae** and the **action for pain and suffering** concur where the infringement of physical-mental integrity also causes patrimonial damage. **HARM, ACTIONS, AND RESTITUTION:** - The plaintiff must claim: 1. Damages for patrimonial loss (cost of hospital treatment and physiotherapy) under the **actio legis Aquiliae**. 2. Compensation for pain and discomfort under the **action for pain and suffering**. 3. **NB:** Although 2 actions are used, it remains **one claim** 4. Assume all harm arises from a single cause of action, i.e., assault. ------------------------------------------------- **Actio Legis Aquiliae and Action Iniuriarum:** ------------------------------------------------- **Example:** Tshiamo, an attorney, is defamed by Yvonne, a dissatisfied client, in a local newspaper. The defamatory statements cause Tshiamo to lose clients. **Conclusion:** **Actio legis Aquiliae** and **action iniuriarum** concur when infringement of personality rights also causes patrimonial loss. **HARM, ACTIONS, AND RESTITUTION:** - Satisfaction for the infringement of personality rights (damage to professional reputation) with **actio iniuriarum.** - Damages for patrimonial loss (loss of income due to cancelled contracts) with **action legis Aquiliae.** ------------------------------------------------------------------- Concurrence of Actio Iniuriarum and Action for Pain and Suffering ------------------------------------------------------------------- **Overlap between these 2 actions:** Infringement of physical-mental integrity (personality right). - For **actio iniuriarum**, there must be a **wrongful and intentional** infringement of physical-mental integrity (e.g., assault). - For **action for pain and suffering**, the infringement can be either intentional or negligent. - **This means:** If the defendant acted negligently (e.g., causing a car accident through negligent driving), the 2 actions cannot concur. - **Where conduct is intentional,** the position is less clear, with differing views among academic authors. - **Avoid "double compensation"** paid to the plaintiff. --------------------------------------------------------------------- Concurrence of delictual remedies and action for breach of contract --------------------------------------------------------------------- Same conduct can be a breach of contract as well as delict. This concurrence is especially relevant for liability for negligent performance of professional services. **Example:** - A medical doctor agrees with a patient to perform an operation but performs it negligently. - The negligent performance of the operation (infringement of the patient\'s bodily integrity) is both a breach of contract and a delict. **Can the plaintiff institute both actions or must they select 1 of the 2?** **WHY IS IT IMPORTANT TO LOOK AT THE OVERLAP BETWEEN DELICT AND CONTRACT?** - Significant differences play a role in practice. For example, the plaintiff can claim for both patrimonial and non-patrimonial loss (e.g., pain and suffering) in delict, whereas non-patrimonial loss cannot be claimed in contract. **EXCLUSIVELY DELICTUAL ACTIONS FROM CONTRACTUAL RELATIONSHIP:** **Example:** - A client instructs an attorney to prepare a will ensuring it complies with all formalities. The attorney negligently fails to do so, and the will is found to be invalid after the client's death. - The person who would have inherited under the client's will can claim in delict against the negligent attorney. --------------------------------------------------------------- Action for Pain and Suffering and Contractual Action: Example --------------------------------------------------------------- - Marina arranges with her doctor to undergo sterilization after the birth of her third child. - After the procedure, the doctor assures her that it has been completed, but later Marina discovers she is pregnant again due to the doctor's negligence. **Conclusion:** - **Concurrence** happens when the breach of contract also results in a wrongful and culpable infringement of physical-mental integrity of the other contracting party. **HARM, ACTIONS, AND RESTITUTION:** - The plaintiff must claim: 1. Compensation for pain and discomfort with **delictual action for pain and suffering.** 2. Damages for patrimonial loss (medical and other expenses) with **action for breach of contract.** **Administrator, Natal v Edouard 1990 3 SA 581 (A):** - Held that compensation for pain and suffering due to breach of contract cannot be claimed with the contractual action. - **Delictual action for pain and suffering** must be used for this purpose. ---------------------------------------------- Actio Legis Aquiliae and Contractual Action: ---------------------------------------------- Can Marina also claim for patrimonial loss (medical and other expenses) with **delictual action legis Aquiliae**? - Can **actio legis Aquiliae** concur with the action for breach of contract in the same matter? **Conclusion:** - Plaintiff must **choose** whether to use the contractual action or the **action legis Aquiliae** (subject to requirements of delictual liability). - **Plaintiff may choose the most favorable option**, based on various factors. -------------------------------------------------- Factors to consider in choice between 2 actions: -------------------------------------------------- Requirements for liability differ. - **Contributory negligence** may only be raised against a delictual claim, not contract. - Fault is generally required for delictual liability, while breach of contract is usually not fault-based. - The **onus of proof** may differ for contractual and delictual claims. **Example:** - Gideon and Thandi---contract between attorney and client, attorney performs professional services negligently, client suffers pure economic loss. - **Gideon** can decide whether to claim for financial loss in delict or in contract. ------------------------------------------------- Existence of contract excludes delictual claim: ------------------------------------------------- Courts readily allow intersection between delict and breach of contract in cases of property damage, physical harm, and to a limited degree, pure economic loss. 1. However, in some instances, the existence of a contract will be a defense to a claim in delict. - **Example:** Courts will not permit a delictual action if it circumvents specific terms of the contract, such as clauses limiting liability. - If the plaintiff could have protected themselves by including appropriate terms and conditions in the contract, the delictual claim may not be allowed. Study unit 8.1 Assessment of Harm and Quantification of Damages for Patrimonial Loss Where Are We in the Process? - The court has found the defendant liable in delict (i.e., the plaintiff's claim succeeds on the merits). - Now, the court must decide the quantum (amount) of damages to be awarded to the plaintiff. ----------------------------- The Aim of Awarding Damages ----------------------------- To place the plaintiff in the same position they were in before the delict The purpose is not to enrich the plaintiff---over-compensation must be avoided. The principle of complete compensation is tempered by rules such as: - Accounting for benefits. - Mitigation of loss. ---------------------------------------- Assessment of Harm: General Principles ---------------------------------------- **Comparative (Sum-Formula) Method** This compares: 1\. The **current patrimonial** position of the victim after the delict. 2\. The **hypothetical patrimonial** position the victim would have been in had the delict not occurred. This approach determines the amount required to place the plaintiff in the position they would have been in if the delict had not happened. **Example:** A timber company leaves tree trunks blocking a road. A driver collides with the trees, and the car is damaged. The court finds the timber company liable in delict. - Current Position: Repair costs for the car are R10,000. - Hypothetical Position: No debt (if the delict had not occurred). - Patrimonial Loss: R10,000. ------------------------------- Assessment and Quantification ------------------------------- **Two Relevant Concepts:** 1. **Assessment of Damage:** Determining whether the plaintiff has suffered harm or loss and, if so, to what extent. 2. **Quantification of Damages:** Deciding the amount of damages the court will award the plaintiff. After assessing harm/damage, adjustments may be made to determine the final amount of damages. **Example Continued:** - Insurance Payment: If the plaintiff's insurance paid R5,000 for damages: - Total damage: R10,000. - Insurance payout: R5,000. Awarded Damages: R10,000 - R5,000 = R5,000. ---------------------------------- Key Considerations in Assessment ---------------------------------- **When Must Harm Be Assessed?** Generally, on the **date of the delict**, or the earliest date when all elements of the delict are present. Courts may also consider events between the delict date and trial date, especially for future harm (e.g., loss of future income). **Distinctions in Assessment:** 1. **Damage to Property**: Harm is assessed as complete on the date of the delict (e.g., car accident). 2. **Injury with Future Impacts**: Harm may continue beyond the delict date (e.g., reduced earning capacity). ----------------------------------- Plaintiff's Duty to Mitigate Loss ----------------------------------- Plaintiffs must take reasonable steps to limit their losses. Expenses incurred in doing so can be recovered as part of damages. The defendant bears the burden of proving that the plaintiff failed to mitigate their loss. **Accounting for Benefits** - Benefits received (e.g., insurance payouts) may affect the damages calculation. - Courts must consider whether to deduct these benefits to prevent unjust enrichment. **Collateral Benefits:** - **Deductible Benefits**: Medical aid payments, sick leave, pensions. - **Non-Deductible Benefits:** Insurance payouts, gifts, donations. ---------------------------------- Special Topics in Quantification ---------------------------------- **Loss of Future Income 4 step method:** 1. Determine the present value of income the plaintiff would have earned if uninjured. 2. Assess the income the plaintiff can earn in their injured state. 3. Subtract the injured income from the uninjured income. 4. Capitalise and adjust for contingencies. **Personal Injury: Claims include:** - Medical and hospital expenses (past and future). - Loss of income (past and future). - Rehabilitation and psychiatric costs. **Future Medical Expenses:** Estimated based on present costs and expert evidence, subject to capitalisation and discounting to present value. **Case Law: MEC for Health and Social Development, Gauteng v DZ obo WZ (2018):** A minor suffered brain damage during birth due to negligence at a state hospital. **Issue:** Should future medical expenses be paid as a lump sum or periodically? **Decision:** Courts developed the common law to allow for periodic payments to ensure funds are available as needed. -------------------------------------- General factors influencing an award -------------------------------------- - Time with reference to which assessment is made - Taxation - Interest - Inflation - Currency - Contingencies Study Unit 9.3: Negligent Misrepresentation Negligent Misrepresentation occurs when a person (defendant) provides false or misleading information, and another person (plaintiff) relies on that information, suffering harm as a result. Liability depends on: - Whether the plaintiff had a right to accurate information. - Whether the defendant had a duty to supply correct information. If no contractual relationship exists between the parties, liability depends on policy considerations that establish whether a legal duty to provide accurate information exists. This legal duty forms the basis for wrongfulness in negligent misrepresentation cases. ----------------------------- Key Characteristics of Harm ----------------------------- Misrepresentation can result in the following types of harm: 1. **Damage to property.** 2. **Impairment of personality rights** (e.g., personal injury). 3. **Pure economic loss**: A focus area in this study unit. Includes loss of market value or financial harm due to reliance on incorrect information. ----------------------------------------------------------- Requirements for Liability in Negligent Misrepresentation ----------------------------------------------------------- To succeed in a claim for negligent misrepresentation, all the elements of delict must be established, with **wrongfulness** often being the primary issue in dispute. 1. **Wrongfulness** a. **Key Question**: Did the defendant have a legal duty to provide accurate information? b. Harm caused by negligent misstatements is **not inherently wrongful.** c. **Criteria for Determining Wrongfulness:** Courts assess reasonableness, which involves determining whether a duty existed based on the circumstances. 2. **Negligence** d. Measured using the "reasonable person" test. e. A professional defendant (e.g., estate agent or lawyer) is expected to meet a higher standard of care based on their expertise. ----------------------------------------- Guidelines for Determining Wrongfulness ----------------------------------------- Courts use several factors to determine whether the defendant had a legal duty to provide accurate information: 1. **Public Office:** a. Economic loss caused by a person holding a public office is viewed differently. b. Such individuals are presumed to have credibility and efficiency conferred upon them by public authority. 2. **Professional Knowledge and Competence:** c. Professionals are expected to act with care in their fields of expertise. d. Courts are more likely to impose liability on professionals whose misstatements cause economic loss to individuals relying on their competence. 3. **Knowledge:** e. Did the defendant know or foresee that their misstatement could cause harm? f. **Important:** This focuses on the defendant's actual knowledge, not what they should have known (the latter relates to negligence). 4. **Extent of Liability and Social Consequences:** g. Would recognizing a legal duty lead to excessive or indeterminate liability, such as multiple claims? h. If so, courts may be reluctant to impose liability. 5. **Ability of the Plaintiff to Protect Themselves:** i. Could the plaintiff have independently verified the information to prevent the harm? j. If so, this might limit the defendant's liability. 6. **Special Relationship Between Parties:** k. A relationship of trust or dependence, such as employer-employee or bank-client, creates a stronger duty to provide accurate information. 7. **Pre-Contractual Negotiations:** l. During negotiations, parties have a duty not to make misstatements about material aspects of a potential contract. 8. **Statutory Duty:** m. A legal duty to provide accurate information may arise from specific legislation. ----------------------------------------- Case Study: Negligent Misrepresentation ----------------------------------------- Linda, an estate agent, is marketing an upmarket property with spectacular sea views. Sue, a potential buyer, is concerned about an adjacent undeveloped plot that could obstruct the views. Linda negligently assures Sue that construction on the plot will not block the views. Sue purchases the property based on this information. Later, construction grows into a three-story building, obstructing the views and reducing the property's market value by 25%. **Key Issues:** 1. **Misrepresentation**: Linda provided false information without verifying it. 2. **Reliance**: Sue relied on this misrepresentation to her detriment. 3. **Harm**: Sue suffered a significant financial loss due to the reduced property value. **Factors Supporting Liability in This Case** 1. **Professional Knowledge and Competence:** Linda acted as a professional estate agent and was expected to exercise reasonable care and diligence in providing accurate information. 2. **Knowledge**: Linda was aware of Sue's specific concern about the construction and knew the information would influence Sue's decision. 3. **Special Relationship**: The relationship between an estate agent and a prospective buyer can establish a duty to provide accurate information, though no formal contract existed between Linda and Sue. 4. **Ability to Protect:** While Sue could have independently verified the construction plans, Linda's role as a professional placed the primary duty on her to provide accurate details. **Conclusion**: Courts are likely to find that Linda had a legal duty to provide accurate information. Her failure to verify the information and foresee the potential economic loss constitutes negligence. Study unit 10: Liability for Psychological Harm ------------------------------------------------ What is Psychological Harm or Emotional Shock? ------------------------------------------------ Psychological harm refers to injury to the brain or nervous system caused by emotional or nervous shock. It is treated as a form of **bodily injury** in delict. **Characteristics:** - Prolonged, serious emotional reactions resulting in psychological or psychiatric injuries. - May include terms like **shock, nervous shock, psychological lesion, trauma, or psychiatric injury.** - Defined as a **recognizable harmful infringement** of the brain or nervous system (Neethling and Potgieter). --------------------------------------- Possible Causes of Psychological Harm --------------------------------------- There is no definitive list, but typical causes include: 1. Witnessing gruesome accidents or deaths. 2. Being involved in a horrific accident (e.g., motor vehicle collision). 3. Being informed of a loved one\'s tragic death. 4. Discovering life-altering and shocking information (e.g., a child raised as one's own is not biologically theirs). **Note:** Courts are cautious about awarding damages for hearsay cases where trauma results from being informed of an event rather than witnessing it. ----------------------------------------------- When Does Psychological Harm Justify Damages? ----------------------------------------------- Psychological harm warrants compensation when: 1. **Physical Manifestation of Shock:** E.g., stroke, miscarriage, or severe hypertension. 2. **Recognizable Psychiatric Injury or Lesion**: Must be serious, not trivial or transient. Examples include PTSD, acute depression, or prolonged emotional trauma. **Key Case: Bester v Commercial Union Versekeringsmaatskappy (1973)** An 11-year-old boy witnessed a vehicle striking and killing his 6-year-old brother. The event caused significant psychological harm, including nightmares, anti-social behaviour, aggression, and academic decline. **Key Question**: Should psychological harm (lesion) be treated the same as physical injury in delict law? **Judgment:** - The court held that the mind is as integral as physical body parts in determining harm. - Liability depends on **reasonable foreseeability** of the harm: It is not necessary to foresee the specific harm; general harm suffices. **Requirements Established:** 1. Psychological harm must be foreseeable by a reasonable person in the wrongdoer's position. 2. Harm must be preventable by taking reasonable steps. 3. Liability can be limited by policy considerations under **legal causation** -------------------------------------- Legal Actions for Psychological Harm -------------------------------------- 1. **No Physical Injury**: The plaintiff must prove a detectable and recognized psychiatric lesion. 2. **Accompanied by Physical Injury:** Courts assess the combined extent of psychological harm and physical pain or suffering. 3. **Intentional Harm**: Use the **actio iniuriarum** if psychological harm results from intentional infringement of personality rights. 4. **Accompanied by Patrimonial Loss:** Recover damages for patrimonial loss using the **Aquilian action.** Study Unit 10.2.1: Infringements of the Right to Physical Integrity The **right to bodily integrity** protects individuals from any interference with their physical and mental well-being. It recognizes that the mind and body are interconnected and that violating either constitutes an infringement of this right. Violations include assault, rape, infecting another with diseases like HIV, or even non-violent acts such as seduction. This right is protected under the **actio iniuriarum**, which provides a remedy for violations of the physical body (**corpus**). --------------------------------------------------- Circumstances of Infringement of Bodily Integrity --------------------------------------------------- 1. **Assault**: Assault is any interference with a person's bodily integrity. However, not all interference is wrongful. **Example:** Accidentally bumping into someone at a crowded event would not necessarily be considered wrongful unless there is intent. - Assault must involve **intentional conduct** aimed at bringing about the wrongful consequence. **Case Law: Bennet v Minister of Police (1980)** The intention to interfere with the victim\'s bodily integrity is a crucial element in establishing liability. Accidental conduct without intent does not satisfy the requirement of wrongfulness. 2. **Deprivation of Personal Freedom**: Deprivation of personal freedom occurs when an individual is intentionally restricted or detained without lawful justification. **Example:** Wrongful arrest or Malicious detention. **Elements of Wrongful Arrest:** 1. **Intentional deprivation of liberty:** The plaintiff must prove that the defendant acted with the intention to restrict their freedom. 2. **Absence of lawful justification**: The arrest or detention must lack a valid legal basis. **Key Legal Principle:** Once the plaintiff proves a factual deprivation of liberty, **wrongfulness is presumed**, and the defendant bears the burden of proving lawful justification. **Malicious Arrest or Detention:** improper motive or malice. This means the defendant acted with an intent to harm or acted with knowledge of the lack of justification for the arrest or detention. --------------------------------------------------------------- Delicts Relating to Bodily Integrity in African Customary Law --------------------------------------------------------------- 1. **Seduction:** refers to leading someone, typically a woman, into engaging in illicit sexual intercourse, often under false pretences or manipulation. **Customary Law Perspective:** The action belongs to the male guardian (e.g., father or brother), as women were traditionally viewed as \"property.\" The woman herself does not have **locus standi** (legal standing) to institute a claim for seduction. The harm is seen as a loss of her **value** as a potential bride. **Factors Considered in Damages under Customary Law:** 1. Whether the woman was a virgin. 2. Pregnancy resulting from the seduction. 3. The woman's character and behaviour. 4. The social standing of the parties involved. 5. Whether the act was isolated or part of an ongoing relationship. ------------------------------------------- Modern Criticism of Seduction as a Delict ------------------------------------------- Seduction laws have faced widespread criticism in modern legal discourse, particularly because: - They reflect outdated societal norms that conflict with contemporary views on gender equality and autonomy. - They reduce women to property and perpetuate discrimination. The **Constitution of South Africa** ensures equality and mandates that customary laws align with constitutional principles. - Section 39(2) and Section 211(3) of the Constitution require the development of customary law in accordance with human rights standards. **Case law: Bhe v Khayelitsha Magistrate (2004)** Abolished male primogeniture in inheritance law, showing the courts' willingness to reform discriminatory customary laws. **Alexkor Ltd v Richtersveld Community** Reaffirmed the importance of recognizing indigenous law within the framework of constitutional principles. Study Unit 10.2.2 - Infringements of the Right to Reputation The law of defamation protects a person's **fama** (good name or reputation). It aims to safeguard a person\'s right to an **unimpaired reputation** against unjust attacks. While the Constitution does not explicitly mention the right to reputation, it is protected under the **right to dignity** (Section 10). - Courts interpret dignity broadly to include reputation, merging the concepts of **dignitas and fama** under constitutional law. -------------------------- Definition of Reputation -------------------------- Reputation is how others perceive a person (different from dignity, which concerns self-perception). Defined in **O'Keeffe v Argus Printing and Publishing Co Ltd** as "the character for moral and social worth entitled to a person among their fellow men." **Key Distinction:** - Dignity: Internal self-worth. - Reputation: External social standing. ----------------------------------------- Defamation: Definition and Key Elements ----------------------------------------- **Definition**: The **wrongful** and **intentional publication** of defamatory material referring to the plaintiff, which damages their reputation. **Requirements:** 1. **Publication:** Communication of defamatory material to at least one person other than the plaintiff. **Example**: Sharing a defamatory Facebook post makes the sharer liable (Isparta v Richter). 2. **Defamatory Content:** Material likely to harm the plaintiff's reputation by lowering their standing in society. Courts assess whether the material harms reputation using a t**wo-step approach**: 1. Determine the **meaning** of the material (primary meaning, secondary meaning, or innuendo). 2. Assess whether the meaning is defamatory in societal context. 3. **Reference to the Plaintiff:** Material must explicitly or implicitly refer to the plaintiff. Courts evaluate whether a reasonable observer would associate the material with the plaintiff. 4. **Wrongfulness:** A presumption that the publication was unreasonable or socially unacceptable. Assessed based on societal norms (boni mores). Balances the right to reputation against competing rights like freedom of expression. 5. **Intention** (Animus Iniuriandi): The defendant must have directed their will toward harming the plaintiff's reputation. **Subjective test** involving: 3. A willful act to harm reputation. 4. Knowledge that the act was wrongful. ----------------------------------------------- Grounds of Justification in Defamation Claims ----------------------------------------------- Certain defenses rebut the presumption of wrongfulness: 1. **Truth for Public Benefit**: 2. **Fair Comment:** 3. **Privileged Occasions:** 4. **Reasonable Publication:** ------------------------- Liability of Mass Media ------------------------- Media outlets have no special privileges but play a critical role in democratic society. Courts assess their conduct based on the **reasonableness** of publication, particularly in cases involving public interest. **Social Media** complicates defamation due to rapid dissemination and unclear boundaries of responsibility. **Key Considerations:** Users sharing or tagging defamatory content are also liable. Social media posts are evaluated using the same principles as traditional publications. **Case law: Isparta v Richter** - The defendant (Richter) made defamatory posts on Facebook about the plaintiff (Isparta), accusing her of engaging in inappropriate behavior. - Richter\'s wife also shared these posts, further disseminating the defamatory content. - The plaintiff argued that the Facebook posts caused harm to her reputation, dignity, and emotional well-being. **Key Issues:** 1. Does sharing or posting defamatory content on social media constitute publication under defamation law? 2. Can individuals who merely share defamatory content be held liable? **Judgment:** - The court ruled that the Facebook posts constituted publication since they were visible to third parties. - By posting and sharing the defamatory content, both Richter and his wife became liable for the harm caused to the plaintiff\'s reputation. - The court emphasized that sharing defamatory content on social media is equivalent to traditional forms of publication and carries the same legal consequences. **Legal Principles Established:** 1. Social media users are responsible for the content they post or share. 2. Sharing defamatory material, even without originating it, amounts to publication and attracts liability. 3. Defamation law applies equally to social media platforms as it does to print or spoken communication. **Significance:** - This case highlights the importance of exercising caution when sharing content on social media. - It reinforces the principle that the act of sharing defamatory content creates liability, regardless of the sharer\'s intent. **Le Roux v Dey** - The case involved three high school students who created and distributed a digitally altered image depicting the school principal and deputy principal in a compromising, sexually suggestive position. - The image was circulated among students, causing humiliation and harm to the reputation of the deputy principal (Dey). - Dey sued the students for defamation, infringement of dignity, and emotional harm**.** **Key Issues:** 1. Did the altered image harm Dey's reputation in the eyes of others? 2. Did the image constitute an infringement of dignity? 3. Were the students' actions wrongful and intentional? **Judgment:** - The court found that the image was defamatory as it lowered Dey's reputation among the school community. - The image also infringed on Dey's dignity by exposing him to ridicule and contempt. - The students' actions were deemed intentional, as they knowingly created and circulated the image to provoke laughter at Dey's expense. **Legal Principles Established:** 1. Defamatory material includes anything likely to lower a person's standing in the eyes of reasonable members of society. 2. Dignity and reputation are distinct but overlapping rights, and harm to both may result from the same act. 3. Even humorous content, if harmful to reputation or dignity, can constitute defamation. **Significance:** - This case underscores the need to balance freedom of expression with the protection of dignity and reputation. - It affirms that digital alterations and humorous depictions can be defamatory if they harm someone's social standing. **National Media Ltd v Bogoshi** - National Media Ltd, the publisher of a newspaper, was sued for defamation after publishing an article alleging misconduct by the plaintiff (Bogoshi). - Bogoshi argued that the allegations were false and defamatory, harming his reputation. - National Media Ltd contended that the publication was reasonable, even though the allegations were later proven untrue. **Key Issues:** 1. Can a publisher be protected from liability if the defamatory material was reasonable to publish at the time, despite being false? 2. How should courts balance freedom of the press with protection of reputation? **Judgment:** - The court introduced the defense of reasonable publication, holding that publishers are not automatically liable for defamatory content if the publication was reasonable under the circumstances. - Reasonableness Test: - Was the content a matter of public interest? - Were reasonable steps taken to verify the information? - Was the tone of the publication neutral and objective? - The court ruled in favor of National Media Ltd, finding that the publication was reasonable despite the inaccuracy of the allegations. **Legal Principles Established:** 1. Reasonable publication serves as a defense to defamation claims. 2. Public interest and responsible journalism are critical in assessing the reasonableness of a publication. 3. False allegations, if reasonably published in good faith, may not attract liability. **Significance:** - This case represents a shift from strict liability for defamation toward a more nuanced approach, balancing freedom of the press with protection of reputation. - It underscores the importance of public interest and ethical journalism in defamation disputes. **Study unit 10.2.3: Infringements of the Right to Dignitas** The concept of dignity is foundational within both constitutional and common law frameworks. However, it is significant to note that the implications and definitions of dignity differ markedly between these two areas of law. **Constitutional Notion of Dignity** According to Section 10 of the South African Constitution: \"Everyone has inherent dignity and the right to have their dignity respected and protected.\" This constitutional definition of dignity encompasses several dimensions: - Reputation, which forms part of the public aspect of dignity. - While the right to privacy is critically important, it is separately enshrined in Section 14 of the Constitution and is not included within the ambit of dignity. ------------------------------------------ Common Law Concept of Dignity (Dignitas) ------------------------------------------ In common law, dignity is a multifaceted concept that can be understood in both broad and narrow terms. **Broad Sense:** dignity encompasses not only an individual's personal feelings but also associated rights to privacy and identity. Courts have gradually evolved this understanding, acknowledging additional rights related to dignity over time. **Narrow Sense:** dignity focuses on the violation of personal feelings, chiefly regarding insults. An infringement of dignity occurs in cases where someone experiences humiliation or insult. -------------------------------------- Understanding Insults in Legal Terms -------------------------------------- In the legal context, insults are referred to as *iniuria*, which manifests in personal feelings of humiliation or disrespect. A factual violation of dignity due to an insult involves two components: - A subjective feeling of humiliation, known as contumelia. - The nature of the violation can stem from various causes; importantly, the subjective experience of humiliation is paramount. This leads to the conclusion that if an individual does not perceive themselves as insulted, then it cannot be argued that they have suffered harm, regardless of whether the conduct was objectively offensive. Additionally, liabilities are not applicable to artificial persons in this context, and there is no requirement for the offending statement to be published to a third party for a violation to exist. -------------------------- Infringements of Dignity -------------------------- Dignity is intrinsically linked to an individual\'s self-worth. Infringements occur when a person is subjected to degrading treatment or is exposed to ridicule or contempt. Examples of infringements include: - Verbal insults or derogatory comments. - Invasive actions that violate personal privacy. - Attacks on an individual\'s reputation, which can take various forms. -------------------------------------------------------------- Requirements for Delictual Liability in Dignity Infringement -------------------------------------------------------------- To establish a claim for the infringement of dignity, the following requirements must be met: 1. **Factual Violation:** The aggrieved party must have experienced humiliation or contumelia. 2. **Wrongfulness:** The invasion must be regarded as unreasonable by societal standards, warranting the imposition of liability on the infringing party. 3. **Intention:** The infringing party must have acted with the intention or knowledge that their conduct would result in harm. Once a plaintiff establishes the infringement of dignity, a rebuttable presumption of intention arises, shifting the burden to the defendant. -------------------------- Infringements of Privacy -------------------------- Privacy rights intersect with both constitutional and common law principles. While privacy is recognized as a standalone constitutional right, it also plays a role within the broader framework of dignity. **Common Law Right to Privacy** The common law defines the right to privacy as the right to be free from intrusion and the unauthorized sharing of personal matters. Context is crucial in determining the extent of protection around privacy, particularly concerning issues like family life and personal conduct. **Juristic Persons and Privacy Rights** Legal recognition extends to juristic persons, which refers to entities such as universities. For example, in the case of ***Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk*,** the court acknowledged that universities could possess privacy rights, subject to infringement. **Constitutional Protection of Privacy** Section 14 of the Constitution safeguards against unlawful searches and seizures affecting individuals and their communications, further delineating the scope of privacy. **Types of Privacy Infringements** Privacy rights can be violated in two ways: 1. Infringement of the private realm, such as unauthorized reading of private letters or listening to phone conversations. 2. Disclosure of private facts to the public, including publication of personal information in media. Determining wrongfulness in privacy cases involves examining various policy considerations alongside constitutional norms. -------------------------------------------------------------- Requirements for Delictual Liability in Privacy Infringement -------------------------------------------------------------- To establish a claim of privacy infringement, the following elements must be satisfied: 1. **Factual Violation:** Evidence of an actual infringement of the right to privacy. 2. **Wrongfulness:** The invasion must be deemed unreasonable by societal standards. 3. **Intention:** The infringing party must have intentionally engaged in the wrongful act. --------------------------- Infringements of Identity --------------------------- Recently, the judicial system has affirmed the existence of a separate right to identity, viewed within the broader context of dignity. **Common Law Right to Identity** Interference with identity often overlaps with insults and privacy breaches, highlighting the complexity of these concepts in law. **Types of Identity Infringements** Infringements of identity can occur in two notable ways: 1. Presenting an individual in a false light, therefore misconstruing their true identity. 2. Misappropriation of identity, such as using someone\'s name or likeness for commercial purposes without consent. --------------------------------------------------------------- Requirements for Delictual Liability in Identity Infringement --------------------------------------------------------------- For claims based on identity infringement, the following must be demonstrated: 1. **Factual Violation:** There must be an actual violation of identity recognized in law. 2. **Wrongfulness:** The action taken must be deemed unreasonable. 3. **Intention:** Intent to infringe upon identity must be established Study unit 11: Actio de Pauperie The law of delict primarily focuses on **fault-based liability**, which requires fault (negligence or intent) on the part of the wrongdoer. However, liability without fault---also known as **strict liability**, or **absolute liability**---has gradually developed. --------------------------- What is Actio de Pauperie --------------------------- The actio de pauperie applies when: 1. A domestic or domesticated animal causes harm by acting contrary to its nature (contra naturam sui generis). 2. The harm arises from inward excitement or vice (sponte feritate commota). **Key Characteristics:** - **Strict liability**: Ownership, not fault, determines liability. - **No fault required**: The plaintiff does not need to prove that the owner was negligent (e.g., leaving a gate open). - Both patrimonial damages (financial losses) and satisfaction (compensation for emotional or physical harm) can be claimed. ---------------------------- Requirements for Liability ---------------------------- 1. **Ownership of the Animal**: a. The defendant must own the animal at the time the harm occurred. b. Mere possession or control (e.g., as a caretaker) is insufficient for a claim under actio de pauperie. 2. **The Animal Must Be Domestic or Domesticated:** c. Domestic animals include stock, horses, mules, bees, and even meerkats. d. Wild animals are excluded. 3. **Damage Must Be Spontaneous:** e. The animal must act spontaneously, not in response to external factors such as provocation or natural disasters. Courts have interpreted this requirement inconsistently. 4. **Unpredictable Behaviour:** f. Liability is not limited to aggression or vicious behaviour but includes any instinctive or unpredictable acts. g. Courts have generally excluded "over-friendly" behaviour from liability (e.g., a dog jumping playfully on someone and knocking them over). 5. **Lawful Presence of the Plaintiff or Property:** h. The injured person or damaged property must be lawfully present where the harm occurred. i. Courts distinguish between: i. **Lawful purpose:** e.g., making deliveries. ii. **Legal right**: e.g., being present with consent or by invitation. ------------------------------- Defences to Actio de Pauperie ------------------------------- 1. **External Factors (Vis Major):** The defendant can argue that the animal was provoked by external, uncontrollable factors, such as a thunderclap. 2. **Culpable Conduct by the Plaintiff:** If the plaintiff provokes the animal (e.g., taunting a dog), the claim will fail. 3. **Voluntary Assumption of Risk**: The plaintiff knowingly accepts the risk (e.g., entering a bull's pen with full knowledge of the danger). 4. **Negligence of a Third Party:** Liability does not apply if a third party's negligence directly caused the harm (e.g., a caretaker failing to secure the animal). 5. **Provocation by Another Animal**: Harm caused by an animal reacting to provocation by another animal is a valid defence. 6. **Prior Contractual Undertaking**: The plaintiff agreed beforehand not to claim damages (e.g., signing a waiver before engaging in an activity involving animals). 7. **Contributory Negligence**: The plaintiff's own negligence affects the claim. However, the **Apportionment of Damages Act** does not apply; liability follows an all-or-nothing approach. **Case Law: Van Meyeren v Cloete:** - Cloete was attacked by three dogs owned by Van Meyeren, suffering severe injuries that required amputation of his arm. - Cloete sued Van Meyeren under **actio de pauperie** and negligence. **Key Legal Issue:** - Could Van Meyeren be held strictly liable if the harm was caused by negligence or provocation by a third party? **Judgment:** - The court ruled that strict liability applies under **actio de pauperie**, provided no external factors such as third-party negligence or provocation caused the harm. - The attack was not triggered by external factors, and the owner retained ultimate responsibility for the dogs. **Conclusion:** - Van Meyeren was held strictly liable under **actio de pauperie**. **K v Grobbelaar:** - A 5-year-old child was sitting on a boundary wall when Grobbelaar\'s dog attacked him. - The child had previously been warned not to go near the dog. - The plaintiff sued Grobbelaar under **actio de pauperie** for damages resulting from the dog attack. **Key Legal Issue:** - Was the dog's attack unprovoked, making Grobbelaar strictly liable under **actio de pauperie**? **Judgment:** - The court found no evidence of provocation by the child or any third party. - The attack was spontaneous and unprovoked, meeting the criteria for liability under **actio de pauperie**. **Conclusion:** - Grobbelaar was held strictly liable for the damages caused by the dog. --------------------- Vicarious Liability --------------------- Vicarious liability is a form of **strict liability** where an employer is held liable for the wrongful actions of an employee, committed within the course and scope of employment, even if the employer was not at fault. **Definition:** Liability of one person (A) for the wrongful act of another (B). Common relationships include: - Employer-employee. - Principal-agent. - Owner-driver of a vehicle. ---------------------------------------- Justifications for Vicarious Liability ---------------------------------------- 1. **Public Policy:** Protects third parties interacting with employees acting on behalf of their employers. 2. **Risk Creation**: Employers create a risk by engaging employees. 3. **Fairness**: Employers benefit from employee work and should also bear associated risks. 4. **Risk Absorption**: Employers can absorb and distribute risks effectively through insurance or precautionary measures. -------------------------------------- Requirements for Vicarious Liability -------------------------------------- 1. **Employer-Employee Relationship:** A contract of service must exist. Independent contractors are excluded. 2. **Delict by the Employee**: The employee must commit a wrongful act that constitutes a delict. 3. **Within Scope of Employment:** The wrongful act must occur during the employee's performance of authorized tasks, even if performed negligently or in an unauthorized manner. **Case Law: Feldman v Mall:** - An employee was instructed to deliver parcels using the employer's vehicle. - The employee deviated from his route for personal reasons (to consume alcohol). - While returning to his route, he caused a motor vehicle accident due to negligence. **Key Legal Issue:** - Can an employer be vicariously liable for harm caused during a deviation from employment duties? **Judgment:** - The court held the employer liable because: - The employee retained control of the employer's vehicle during the deviation. - The employer created the risk by allowing the employee to use the vehicle. **Conclusion:** - The employer was vicariously liable because the wrongful act occurred within the framework of employment, despite the temporary deviation. **Minister of Police v Rabie:** - A police mechanic, during his personal time, arrested the plaintiff on fabricated charges and assaulted him. - The plaintiff sued the Minister of Police for damages, claiming vicarious liability. **Key Legal Issue:** - Can the Minister of Police be vicariously liable for an employee's actions undertaken solely for personal interests? **Judgment:** - The court applied a two-pronged test: - **Subjective Test:** The employee acted solely for personal interests (self-serving). - **Objective Test:** Whether a close connection existed between the wrongful act and the employer's business. **Conclusion:** - The employer was held vicariously liable because the employee's authority as a police officer, derived from his position, enabled him to commit the wrongful acts. **NK v Minister of Safety and Security:** - NK and her boyfriend had a dispute at a nightclub. - After her boyfriend refused to take her home, NK walked to a petrol station to contact her mother. - Three on-duty policemen in uniform offered NK a lift, ostensibly to take her home. - Instead, they took her to a remote location and raped her. **Key Legal Issue:** - Were the policemen acting in the scope of their employment when they committed the wrongful acts? **Judgment (Constitutional Court):** - **For liability:** - The State's business creates a foreseeable risk that the public will trust on-duty policemen, especially in uniform and using official vehicles. - Public trust in police officers forms part of their employment duties, even if they deviated from those duties. - **Against liability:** - The rape was a significant deviation from their employment responsibilities, solely for personal gratification. **Conclusion:** - The court held the Minister vicariously liable, finding a close connection between the policemen's wrongful acts and their employment **Stallion Security v Van Staden:** - Van Staden, a police officer, was patrolling near a property guarded by Stallion Security. - A Stallion Security guard mistakenly believed Van Staden was a threat and shot him. - Van Staden suffered severe injuries and sued Stallion Security, claiming vicarious liability for the guard's actions. **Key Legal Issue:** - Was the guard's wrongful act sufficiently connected to his employment to hold Stallion Security vicariously liable? **Judgment:** - The court applied the \"sufficiently close connection\" test to determine liability. - **Factors considered:** - **Against liability:** - The guard's actions were unauthorized and occurred while he was on sick leave. - The firearm used was unrelated to Stallion Security\'s operations. - **In favour of liability:** - By employing the guard, Stallion Security created the risk of harm, as the guard could abuse his position of authority. **Conclusion:** - The court found a sufficiently close connection between the guard's actions and his employment. Stallion Security was held vicariously liable. **Study Unit 13** The **Road Accident Fund Act 56 of 1996 (RAFA)** Designed to provide compensation to victims of road accidents for injuries or death caused by the negligent driving of motor vehicles. The fund was established to ensure victims can recover damages, even when the negligent driver cannot personally pay. ------------ Background ------------ The development of motor vehicle transport increased the risk of road accidents. Prior to RAFA, compensation was based on third-party insurance, where vehicle owners and drivers were required to carry insurance. This system was problematic because not all drivers could afford the premiums, leaving victims without compensation. The **Road Accident Fund (RAF**) replaced this system. A small portion of every liter of fuel purchased (currently R2.18 per liter) is allocated to the fund, which raises approximately R45 billion annually to compensate victims. The legal basis of the RAF's liability is grounded in **delictual law**, where harm caused by negligent or wrongful acts must be compensated. ---------------------------------------------- Key Provisions of the Road Accident Fund Act ---------------------------------------------- 1. **Who Can Claim?** a. **Sections 17, 18, and 19** specify the eligible claimants, which include individuals injured in accidents, dependants of deceased victims, and unborn children (foetuses). 2. **What Can Be Claimed?** b. **Sections 17, 18**, and the associated regulations outline what compensation can be claimed, including medical expenses, loss of income, and loss of support. Non-patrimonial loss (e.g., pain and suffering) can only be claimed for \"serious injuries.\" 3. **When to Claim?** c. Claims should be lodged as soon as possible after the accident, as regulated in **Sections 17 and 23.** 4. **How to Claim?** d. **Section 24** provides procedural rules, although these are not examined in detail in this unit. -------------------------------------------- General Elements of Liability (Section 17) -------------------------------------------- **The RAF** is obliged to compensate victims for loss or damage caused by bodily injury or death, arisi