Law of Delict
Lectures 1 and 2– Thursday 14 February
Alistair Price
Room 4.25
14:00 to 16:00 on Mondays
DELICT LECTURE 1 – OUTLINE: INTRODUCTION & OVERVIEW
1. INTRODUCTION AND COURSE ADMIN
A delict is a kind of wrongdoing. When you commit a delict you do something
unlawful. Delicts are different to crimes, although both are forms of wrongdoing. A
contractual wrong is also different from a delictual wrong.
2. EXAMPLES OF DELICTS (compared to crimes and breaches of contract)
• Carelessly tripping someone up, breaking her arm.
• Carelessly crashing into another’s car, injuring the driver and damaging his car
(compensation, loss of income, payment of medical bills).
• Deliberately defaming another, causing her to lose her job (loss of income,
defamation).
• Deliberately destroying another’s property (compensation for damage to property).
3. DEFINITIONS OF A DELICT / GENERAL REQUIREMENTS OF A DELICT
• DEFINITION ONE: A delict is wrongful and culpable conduct that causes another
person harm (in the form of patrimonial loss or infringement of a personality
interest) that is not too remote.
• Requirements: (1) conduct (voluntary; acts or omissions; deed or words)
(2) culpability / fault (negligence or intent)
(3) wrongfulness in delict (also known as ‘unlawfulness’)
(4) factual causation – A does something to the detriment of B.
(5) harm (patrimonial loss and/or infringement of personality
interest)
(6) non-remoteness of harm (also known as ‘legal causation’)
• DEFINITION TWO: A delict is a civil wrong that may be redressed by civil
proceedings.
, • Wrong = breach of legal duty/ violation of a right. Rights and duties are
correlative.
• Civil wrong = legal wrongs forming part of ‘civil’ or ‘private’ law (e.g. law of
property, succession, and obligations), as opposed to ‘public’ law (e.g.
constitutional, administrative, and criminal law). Private law is designed to
regulate horizontal relations between individuals. Public law regulates
relations between individuals and the state. It is a vertical relationship.
Involves constitutional and administrative law. Criminal law involves
wrongdoings against society as a whole, with the state as prosecutor. The
state has a constitutional obligation to pursue crimes. Pursuing civil actions
for delicts is optional. Crimes are punished through fines o imprisonment.
Delicts are remedied through compensation.
• Public law crimes v. private law delicts:
• Crimes are public wrongs not civil wrongs, enforceable by the state not by
the victim, in criminal proceedings not civil proceedings, resulting in
punishment inflicted by the state rather than compensation payable to the
victim. Punishment has numerous purposes; retributive.
• The same conduct can amount to both a delict and a crime simultaneously
(e.g. intentionally injuring someone), but not all delicts are crimes (e.g.
negligently damaging property).
• Different branches of the private common law of obligations:
Private law is designed to regulate horizontal relations between individuals.
• Law of Property
Law of Succession
Law of persons and the Family
Law of Obligations
Contract: duties arise primarily from voluntary, self-imposed
agreement. Ordinarily concerned with financial loss. Creates
personal rights and duties.
Delict: duties arise primarily from the operation of law,
independent of agreement. Ordinarily concerned with harm to the
person or physical harm to property. Involves personal rights and
duties.
Unjustified enrichment: duties to return benefits received for no
good reason. When there is no justification for receiving a benefit.
There is a difference between legal wrongdoing and moral/ethical wrongdoing. Not
every kind of moral wrongdoing is a delict; cheating, thinking unethical thoughts (law
is concerned with out conduct).
DELICT LECTURE 2 – OUTLINE:
INTRODUCTION & OVERVIEW CONT’D
,1. KINDS OF HARM / LOSS / DAMAGE
The law of delict three categories of harm:
(1) Economic harm / patrimonial loss / pecuniary loss / ‘damnum’ (e.g.
medical expenses or lost earnings; usually results from bodily injury or
property damage). Includes economic loss in the form of medical bills, and
lost income resulting from injury.
• ‘Pure’ economic loss = economic loss not resulting from bodily injury
or property damage (e.g. losing money after relying on bad financial
advice). The rules of the law of delict differ.
(2) Infringement of personality interest or right (i.e. kinds of non-patrimonial
loss). The common law recognizes various personality interests:
(i) Fama / reputation: infringed by defamation, infringement of
reputation.
(ii) Dignitas / dignity and privacy: infringed by insult or invasion of
privacy. Differs from the constitutional right to dignity.
(iii) Corpus / bodily integrity: infringed by assault, can create claims
for violation of corpus and medical bills (economic harm).
(iv) Libertas / physical freedom: infringed by wrongful deprivation of
liberty. Unlawful and unjustified arrest.
(3) Pain and suffering, mental distress, disfigurement, psychiatric injury, and
loss of amenities of life (capacity to enjoy life) (i.e. kinds of non-patrimonial
loss) resulting from bodily injury.
The law only focuses on certain kinds of harm; not all harms are delicts. The harms
above are the main kinds. One can suffer more than one kind of harm from the same
incident. It is possible to suffer all three harms at once. It is also possible to suffer
only one kind of harm, except (3) which has to result from harm done to the corpus;
It has to be accompanied by a violation of bodily integrity. The law also distinguishes
between severities of mental distress, if elevated enough, mental distress can be
claimed without suffering bodily harm: case law has awarded damages for witnessing
a motor vehicle accident (lady watched her fiancée be hit by a car and had a mental
breakdown).
2. KINDS OF CONDUCT
Conduct must be voluntary
• Voluntary conduct v. involuntary conduct (i.e. acting in a state of
automatism)
• Positive Act/commission v. omission – injury may arise from a failure to act.
E.g. a lifeguard that watches a person drown, receiving death threats from a stalker,
municipality failing to fill a pot hole resulting in an injury to a person. It is easier to
sue for commissions than omissions.
, • Deeds v. words – difference between what you do and what you say. E.g.
saying a path is safe when it is not v. pushing someone down the path. It is easier to
sue for deeds than for words.
3. FACTUAL CAUSATION
The conduct must cause the harm
• Factual causation: ‘But for’ test / necessary condition test / conditio sine
qua non test – if the defendant had not behaved the way he did, would the plaintiff
have suffered the harm she did? If X had not driven recklessly, would Y have suffered
a broken leg? If the answer is no then there is no causal link.
4. FAULT / CULPABILITY
wrongful and culpable conduct: general principle of SA law that one cannot commit a
delict without fault or blame-worthiness.
• Negligence (culpa) – unreasonable conduct. The reasons against what you
did outweigh the reasons in favour of what you did. The test is one of
reasonableness: to imagine a hypothetical reasonable person in the shoes of the
defendant and asks what the reasonable person would have done in the
circumstances. If what the defendant did does not meet the standard then he acted
negligently. v.
Intent (dolus) (in some contexts called ‘animus iniuriandi’): intentional if
defendant aimed to achieve the harm. Intent is obvious most of the time.
There are some important differences between the two:
The question of intent is a subjective one. It is about the state of mind of
the defendant; what did he foresee? What did he aim to do?
Negligence is an objective question, it is about conduct rather than
mental state. The standard is an objective one of the reasonable person.
5. NON-REMOTENESS OF HARM (‘LEGAL CAUSATION’)
Harm in question must have been legally caused; when A gives B deliberately bad
financial advice. B grows depressed, marriage breaks down and attempts to commit
suicide but fails. B sues for lost money and for injuries resulting from the attempted
suicide. Question will be answered in lecture for remoteness.
• Primary harm v. consequential harm
• Reasonable foreseeability; intervention/supervention; and ‘policy’
6. BURDEN OF PROOF
It is usually for the plaintiff to prove all the elements of a delict on a balance of
probabilities.
• Requirements for prima facie liability (exception: doctrine of res ipsa
loquitur: sometimes the facts speak for themselves and the plaintiff does not have to
prove wrongfulness)
• Defences (e.g. self-defence; contributory negligence; prescription)
7. REMEDIES IN DELICT
Lectures 1 and 2– Thursday 14 February
Alistair Price
Room 4.25
14:00 to 16:00 on Mondays
DELICT LECTURE 1 – OUTLINE: INTRODUCTION & OVERVIEW
1. INTRODUCTION AND COURSE ADMIN
A delict is a kind of wrongdoing. When you commit a delict you do something
unlawful. Delicts are different to crimes, although both are forms of wrongdoing. A
contractual wrong is also different from a delictual wrong.
2. EXAMPLES OF DELICTS (compared to crimes and breaches of contract)
• Carelessly tripping someone up, breaking her arm.
• Carelessly crashing into another’s car, injuring the driver and damaging his car
(compensation, loss of income, payment of medical bills).
• Deliberately defaming another, causing her to lose her job (loss of income,
defamation).
• Deliberately destroying another’s property (compensation for damage to property).
3. DEFINITIONS OF A DELICT / GENERAL REQUIREMENTS OF A DELICT
• DEFINITION ONE: A delict is wrongful and culpable conduct that causes another
person harm (in the form of patrimonial loss or infringement of a personality
interest) that is not too remote.
• Requirements: (1) conduct (voluntary; acts or omissions; deed or words)
(2) culpability / fault (negligence or intent)
(3) wrongfulness in delict (also known as ‘unlawfulness’)
(4) factual causation – A does something to the detriment of B.
(5) harm (patrimonial loss and/or infringement of personality
interest)
(6) non-remoteness of harm (also known as ‘legal causation’)
• DEFINITION TWO: A delict is a civil wrong that may be redressed by civil
proceedings.
, • Wrong = breach of legal duty/ violation of a right. Rights and duties are
correlative.
• Civil wrong = legal wrongs forming part of ‘civil’ or ‘private’ law (e.g. law of
property, succession, and obligations), as opposed to ‘public’ law (e.g.
constitutional, administrative, and criminal law). Private law is designed to
regulate horizontal relations between individuals. Public law regulates
relations between individuals and the state. It is a vertical relationship.
Involves constitutional and administrative law. Criminal law involves
wrongdoings against society as a whole, with the state as prosecutor. The
state has a constitutional obligation to pursue crimes. Pursuing civil actions
for delicts is optional. Crimes are punished through fines o imprisonment.
Delicts are remedied through compensation.
• Public law crimes v. private law delicts:
• Crimes are public wrongs not civil wrongs, enforceable by the state not by
the victim, in criminal proceedings not civil proceedings, resulting in
punishment inflicted by the state rather than compensation payable to the
victim. Punishment has numerous purposes; retributive.
• The same conduct can amount to both a delict and a crime simultaneously
(e.g. intentionally injuring someone), but not all delicts are crimes (e.g.
negligently damaging property).
• Different branches of the private common law of obligations:
Private law is designed to regulate horizontal relations between individuals.
• Law of Property
Law of Succession
Law of persons and the Family
Law of Obligations
Contract: duties arise primarily from voluntary, self-imposed
agreement. Ordinarily concerned with financial loss. Creates
personal rights and duties.
Delict: duties arise primarily from the operation of law,
independent of agreement. Ordinarily concerned with harm to the
person or physical harm to property. Involves personal rights and
duties.
Unjustified enrichment: duties to return benefits received for no
good reason. When there is no justification for receiving a benefit.
There is a difference between legal wrongdoing and moral/ethical wrongdoing. Not
every kind of moral wrongdoing is a delict; cheating, thinking unethical thoughts (law
is concerned with out conduct).
DELICT LECTURE 2 – OUTLINE:
INTRODUCTION & OVERVIEW CONT’D
,1. KINDS OF HARM / LOSS / DAMAGE
The law of delict three categories of harm:
(1) Economic harm / patrimonial loss / pecuniary loss / ‘damnum’ (e.g.
medical expenses or lost earnings; usually results from bodily injury or
property damage). Includes economic loss in the form of medical bills, and
lost income resulting from injury.
• ‘Pure’ economic loss = economic loss not resulting from bodily injury
or property damage (e.g. losing money after relying on bad financial
advice). The rules of the law of delict differ.
(2) Infringement of personality interest or right (i.e. kinds of non-patrimonial
loss). The common law recognizes various personality interests:
(i) Fama / reputation: infringed by defamation, infringement of
reputation.
(ii) Dignitas / dignity and privacy: infringed by insult or invasion of
privacy. Differs from the constitutional right to dignity.
(iii) Corpus / bodily integrity: infringed by assault, can create claims
for violation of corpus and medical bills (economic harm).
(iv) Libertas / physical freedom: infringed by wrongful deprivation of
liberty. Unlawful and unjustified arrest.
(3) Pain and suffering, mental distress, disfigurement, psychiatric injury, and
loss of amenities of life (capacity to enjoy life) (i.e. kinds of non-patrimonial
loss) resulting from bodily injury.
The law only focuses on certain kinds of harm; not all harms are delicts. The harms
above are the main kinds. One can suffer more than one kind of harm from the same
incident. It is possible to suffer all three harms at once. It is also possible to suffer
only one kind of harm, except (3) which has to result from harm done to the corpus;
It has to be accompanied by a violation of bodily integrity. The law also distinguishes
between severities of mental distress, if elevated enough, mental distress can be
claimed without suffering bodily harm: case law has awarded damages for witnessing
a motor vehicle accident (lady watched her fiancée be hit by a car and had a mental
breakdown).
2. KINDS OF CONDUCT
Conduct must be voluntary
• Voluntary conduct v. involuntary conduct (i.e. acting in a state of
automatism)
• Positive Act/commission v. omission – injury may arise from a failure to act.
E.g. a lifeguard that watches a person drown, receiving death threats from a stalker,
municipality failing to fill a pot hole resulting in an injury to a person. It is easier to
sue for commissions than omissions.
, • Deeds v. words – difference between what you do and what you say. E.g.
saying a path is safe when it is not v. pushing someone down the path. It is easier to
sue for deeds than for words.
3. FACTUAL CAUSATION
The conduct must cause the harm
• Factual causation: ‘But for’ test / necessary condition test / conditio sine
qua non test – if the defendant had not behaved the way he did, would the plaintiff
have suffered the harm she did? If X had not driven recklessly, would Y have suffered
a broken leg? If the answer is no then there is no causal link.
4. FAULT / CULPABILITY
wrongful and culpable conduct: general principle of SA law that one cannot commit a
delict without fault or blame-worthiness.
• Negligence (culpa) – unreasonable conduct. The reasons against what you
did outweigh the reasons in favour of what you did. The test is one of
reasonableness: to imagine a hypothetical reasonable person in the shoes of the
defendant and asks what the reasonable person would have done in the
circumstances. If what the defendant did does not meet the standard then he acted
negligently. v.
Intent (dolus) (in some contexts called ‘animus iniuriandi’): intentional if
defendant aimed to achieve the harm. Intent is obvious most of the time.
There are some important differences between the two:
The question of intent is a subjective one. It is about the state of mind of
the defendant; what did he foresee? What did he aim to do?
Negligence is an objective question, it is about conduct rather than
mental state. The standard is an objective one of the reasonable person.
5. NON-REMOTENESS OF HARM (‘LEGAL CAUSATION’)
Harm in question must have been legally caused; when A gives B deliberately bad
financial advice. B grows depressed, marriage breaks down and attempts to commit
suicide but fails. B sues for lost money and for injuries resulting from the attempted
suicide. Question will be answered in lecture for remoteness.
• Primary harm v. consequential harm
• Reasonable foreseeability; intervention/supervention; and ‘policy’
6. BURDEN OF PROOF
It is usually for the plaintiff to prove all the elements of a delict on a balance of
probabilities.
• Requirements for prima facie liability (exception: doctrine of res ipsa
loquitur: sometimes the facts speak for themselves and the plaintiff does not have to
prove wrongfulness)
• Defences (e.g. self-defence; contributory negligence; prescription)
7. REMEDIES IN DELICT
