1. INTRODUCTION
1.1. What is harm?
- Element of a delict
- Actual or potential harm (ico interdicts) is required. – remedies differ.
If there is actual harm, this means that it is a result of the violation of a
plaintiff’s interest. In this case a plaintiff will seek a Delictual remedy and
institute a Delictual action.
Where there is potential harm, the plaintiff will recourse to an interdict to
prevent someone from threatening their interest and to prevent the potential
harm from materialising or becoming actual harm.
- Harm is the Point of departure – cornerstone element.
A plaintiff cannot institute Delictual proceedings until harm has materialised.
To the person, interests, their mental integrity, etc.
Harm need not coincide with wrongful conduct, but delict only complete
when damage arises.
- In order for you to say whether there has been harm, you need to 1. Determine
whether or not the plaintiff has an interest that the law protects by means of the law
of delict and 2. whether that interest has been violated by the defendant.
Jowell v Bramwell-Jones 2000 (3) SA 274 (HHA)
“The element of damage or loss is fundamental to the Aquilian action [actually the entire
law of delict] and the right of action is incomplete until the damage is caused to the plaintiff
by reason of the defendant’s wrongful [and culpable] conduct.”
Stewart v Botha 2008 (6) SA 310 (SCA)
“Damage is one of the elements of delictual liability. The plaintiff must show conduct of the
defendant has resulted in a harmful consequence (harm).”
*damage/harm/loss are synonyms for each other*
- Neethling, Potgieter, Visser:
“Damage [harm/loss] is the detrimental impact upon any patrimonial or
personality interest deemed worthy of protection by the law.” – harm is
where an interest that has been deemed worthy of protection by the law has
been violated in some way or another. Detrimental impact refers to a
violation.
Not all kinds of “harm” recognised in delict.
Policy considerations (not static- change over time) play a role in
deciding which harm is actionable in law (therefore normative
component i.o.w not factual but determined by rules and regulations)
, E.g., Fourie v Naranjo 2008 (1) SA 192 (C) and;
There was an extension of liability under the actio de pauperie.
Previously the courts did not recognise this type of harm but
extended it as a result of this decision.
A new harm was recognised.
Union Government (Minister of Railways and Harbours) v Warneke
1911 AD 657
Husband lost his wife in train accident. He then instituted a
Delictual claim against the defendant who was the minister of
railway and harbour, for loss of comfort and companionship as
well as for the loss of his wife’s assistance in taking care of
their children.
The court distinguished the Delictual actions in sa law. In this
case 2 of these Delictual actions were potentially applicable:
acquiliae and action iniuriarum.
The action legis aquiliae, is used in cases where there is a
calculable financial loss, therefore the loss of companionship,
love and comfort was not a patrimonial loss. Therefore, the
court said the plaintiff could not claim for this under the
aquiliae action.
But the court pointed out that to the extent that the plaintiff
could show that his now deceased wife had proof of monetary
support in caring and educating their children he could claim
the cost of having to employ a replacement under the aquiliae
action.
If the plaintiff can show that he no longer had this, and has to
incur expenses, then he has a claim.
With regards to the actio iniuriarum, the court said that it had
to fail because the death of his wife did not violent any of his
personality interests.
Van jaarsveld v bridges
Parties were engaged and van jaarsveld broke off the
engagement.
Bridges sued him for breach of promise and the court said that
breach of promise is no longer actionable under the law of
delict.
Previously this claim was permitted but over time, the court
said because people get engaged and break it off, it is no
longer an interest that the law of delict deems worthy of
protection.
DE v RH
Court said that adultery was no longer wrongful which means
that adultery is no longer actionable under the law of delict.
This is because it happens so frequently.
1.1. What is harm?
- Element of a delict
- Actual or potential harm (ico interdicts) is required. – remedies differ.
If there is actual harm, this means that it is a result of the violation of a
plaintiff’s interest. In this case a plaintiff will seek a Delictual remedy and
institute a Delictual action.
Where there is potential harm, the plaintiff will recourse to an interdict to
prevent someone from threatening their interest and to prevent the potential
harm from materialising or becoming actual harm.
- Harm is the Point of departure – cornerstone element.
A plaintiff cannot institute Delictual proceedings until harm has materialised.
To the person, interests, their mental integrity, etc.
Harm need not coincide with wrongful conduct, but delict only complete
when damage arises.
- In order for you to say whether there has been harm, you need to 1. Determine
whether or not the plaintiff has an interest that the law protects by means of the law
of delict and 2. whether that interest has been violated by the defendant.
Jowell v Bramwell-Jones 2000 (3) SA 274 (HHA)
“The element of damage or loss is fundamental to the Aquilian action [actually the entire
law of delict] and the right of action is incomplete until the damage is caused to the plaintiff
by reason of the defendant’s wrongful [and culpable] conduct.”
Stewart v Botha 2008 (6) SA 310 (SCA)
“Damage is one of the elements of delictual liability. The plaintiff must show conduct of the
defendant has resulted in a harmful consequence (harm).”
*damage/harm/loss are synonyms for each other*
- Neethling, Potgieter, Visser:
“Damage [harm/loss] is the detrimental impact upon any patrimonial or
personality interest deemed worthy of protection by the law.” – harm is
where an interest that has been deemed worthy of protection by the law has
been violated in some way or another. Detrimental impact refers to a
violation.
Not all kinds of “harm” recognised in delict.
Policy considerations (not static- change over time) play a role in
deciding which harm is actionable in law (therefore normative
component i.o.w not factual but determined by rules and regulations)
, E.g., Fourie v Naranjo 2008 (1) SA 192 (C) and;
There was an extension of liability under the actio de pauperie.
Previously the courts did not recognise this type of harm but
extended it as a result of this decision.
A new harm was recognised.
Union Government (Minister of Railways and Harbours) v Warneke
1911 AD 657
Husband lost his wife in train accident. He then instituted a
Delictual claim against the defendant who was the minister of
railway and harbour, for loss of comfort and companionship as
well as for the loss of his wife’s assistance in taking care of
their children.
The court distinguished the Delictual actions in sa law. In this
case 2 of these Delictual actions were potentially applicable:
acquiliae and action iniuriarum.
The action legis aquiliae, is used in cases where there is a
calculable financial loss, therefore the loss of companionship,
love and comfort was not a patrimonial loss. Therefore, the
court said the plaintiff could not claim for this under the
aquiliae action.
But the court pointed out that to the extent that the plaintiff
could show that his now deceased wife had proof of monetary
support in caring and educating their children he could claim
the cost of having to employ a replacement under the aquiliae
action.
If the plaintiff can show that he no longer had this, and has to
incur expenses, then he has a claim.
With regards to the actio iniuriarum, the court said that it had
to fail because the death of his wife did not violent any of his
personality interests.
Van jaarsveld v bridges
Parties were engaged and van jaarsveld broke off the
engagement.
Bridges sued him for breach of promise and the court said that
breach of promise is no longer actionable under the law of
delict.
Previously this claim was permitted but over time, the court
said because people get engaged and break it off, it is no
longer an interest that the law of delict deems worthy of
protection.
DE v RH
Court said that adultery was no longer wrongful which means
that adultery is no longer actionable under the law of delict.
This is because it happens so frequently.
