Andre – John Truter
Student number: 62424041
LAW OF DAMAGES – LPL4802
Assignment 2 – 6 September 2019
UNIQUE NUMBER: 811 737
QUESTION 1:
a) The Actio Legis Aquiliae, the Actio Iniuriarum and the action for pain and
suffering are the 3 pillars of our law of delict.1 While these 3 delictual actions
have some similarities, there are also marked differences will be identified and
explained in this essay.
The first difference which can be identified is the origin of the action. While the
Actio Legis Aquiliae and the Actio Iniuriarum find their origin in Roman Law, the
action for pain and suffering was developed from Roman-Dutch Law.2 The Actio
Legis Aquiliae was originally an action only available to an owner to recover
physical damages suffered to a corporeal asset, but developed with time.3 The
Actio Iniuriarum, on the other hand, was originally aimed at compensation for
injury to personality as result of a physical injury, such as losing a limb.
As mentioned above, the Actio Legis Aquiliae and the Actio Iniuriarum actions
were founded Roman Law and, therefore, another difference between these
actions is their course of development. The Actio Legis Aquiliae action was
extended in Roman law and the further developed in Roman-Dutch law to be
an action “for every kind of loss sustained by a person in consequence of
wrongful acts of another”.4 Conversely, except for the identification of freedom
as a personality interest, the Actio Iniuriarum remained virtually unchanged by
Roman-Dutch Law.5 Despite the development of the these two actions, the
1
Neethling J and Potgieter J Law of Delict 6th ed (Lexis Nexis Cape Town 2015) 8.
2
Neethling and Potgieter Law of Delict 8-16.
3
Neethling and Potgieter Law of Delict 8.
4
The Cape of Good Hope Bank v Fischer 1886 4 SC 368.
5
Neethling and Potgieter Law of Delict 13.
, need arose for an action for claiming damages as a result of negligence and
the action for pain and suffering was, therefore, developed.6
These 3 actions can be distinguished from each other by what can be claimed
under each action. The Actio Legis Aquiliae is an action for patrimonial
damages arising from wrongful or culpable conduct, while the Actio Iniuriarum
is an action for satisfaction for wrongful and intentional injury to the personality
of the person.7 The action for pain and suffering, however, is an action for
damages arising out the wrongful and culpable impairment of bodily or physical-
mental integrity.8
In South African Law, the Actio Legis Aquiliae cannot yet be said to have
reached its logical conclusion and cannot, therefore, be considered a general
remedy.9 However, despite their reluctance, courts have been seen to extend
the action when the circumstances demand it.10 The Actio Iniuriarum’s
application in South African Law is much the same as it was in Roman Law and
Roman-Dutch Law, except that the courts appear to have qualified dignitas as
an all encompassing protection for personality rights.11 The action for pain and
suffering differentiates itself here as it appears to have reached it’s logical
conclusion in South African Law, by protecting the physical-mental integrity of
a person completely, particularly as a result of bodily injury.12
b) The action for pain and suffering is an action for non-patrimonial loss, otherwise
known as ‘injury to personality’, as result of the wrongful and culpable
impairment of the physical-mental interests of an individual.13 This action is
divided into claims for pain and suffering, shock, disfigurement, loss of
amenities of life and shortened expectation of life.14
6
Neethling and Potgieter Law of Delict 16.
7
Neethling and Potgieter Law of Delict 8-16.
8
Neethling and Potgieter Law of Delict 16-17.
9
Neethling and Potgieter Law of Delict 8-12.
10
Lillicrap, Wassenaar and Partners v Pilkington SA (Pty) Ltd 1985 1 SA 475 (A) 500 503-504.
11
Neethling and Potgieter Law of Delict 15.
12
Neethling and Potgieter Law of Delict 16-17.
13
Neethling and Potgieter Law of Delict 25; Potgieter JM, Steynberg L and Floyd TB Visser & Potgieter Law of
Damages 3rd ed (Juta and Company (Pty) Ltd Cape Town 2015) 108.
14
Potgieter, Steynberg and Floyd Law of Damages 108-112.
Student number: 62424041
LAW OF DAMAGES – LPL4802
Assignment 2 – 6 September 2019
UNIQUE NUMBER: 811 737
QUESTION 1:
a) The Actio Legis Aquiliae, the Actio Iniuriarum and the action for pain and
suffering are the 3 pillars of our law of delict.1 While these 3 delictual actions
have some similarities, there are also marked differences will be identified and
explained in this essay.
The first difference which can be identified is the origin of the action. While the
Actio Legis Aquiliae and the Actio Iniuriarum find their origin in Roman Law, the
action for pain and suffering was developed from Roman-Dutch Law.2 The Actio
Legis Aquiliae was originally an action only available to an owner to recover
physical damages suffered to a corporeal asset, but developed with time.3 The
Actio Iniuriarum, on the other hand, was originally aimed at compensation for
injury to personality as result of a physical injury, such as losing a limb.
As mentioned above, the Actio Legis Aquiliae and the Actio Iniuriarum actions
were founded Roman Law and, therefore, another difference between these
actions is their course of development. The Actio Legis Aquiliae action was
extended in Roman law and the further developed in Roman-Dutch law to be
an action “for every kind of loss sustained by a person in consequence of
wrongful acts of another”.4 Conversely, except for the identification of freedom
as a personality interest, the Actio Iniuriarum remained virtually unchanged by
Roman-Dutch Law.5 Despite the development of the these two actions, the
1
Neethling J and Potgieter J Law of Delict 6th ed (Lexis Nexis Cape Town 2015) 8.
2
Neethling and Potgieter Law of Delict 8-16.
3
Neethling and Potgieter Law of Delict 8.
4
The Cape of Good Hope Bank v Fischer 1886 4 SC 368.
5
Neethling and Potgieter Law of Delict 13.
, need arose for an action for claiming damages as a result of negligence and
the action for pain and suffering was, therefore, developed.6
These 3 actions can be distinguished from each other by what can be claimed
under each action. The Actio Legis Aquiliae is an action for patrimonial
damages arising from wrongful or culpable conduct, while the Actio Iniuriarum
is an action for satisfaction for wrongful and intentional injury to the personality
of the person.7 The action for pain and suffering, however, is an action for
damages arising out the wrongful and culpable impairment of bodily or physical-
mental integrity.8
In South African Law, the Actio Legis Aquiliae cannot yet be said to have
reached its logical conclusion and cannot, therefore, be considered a general
remedy.9 However, despite their reluctance, courts have been seen to extend
the action when the circumstances demand it.10 The Actio Iniuriarum’s
application in South African Law is much the same as it was in Roman Law and
Roman-Dutch Law, except that the courts appear to have qualified dignitas as
an all encompassing protection for personality rights.11 The action for pain and
suffering differentiates itself here as it appears to have reached it’s logical
conclusion in South African Law, by protecting the physical-mental integrity of
a person completely, particularly as a result of bodily injury.12
b) The action for pain and suffering is an action for non-patrimonial loss, otherwise
known as ‘injury to personality’, as result of the wrongful and culpable
impairment of the physical-mental interests of an individual.13 This action is
divided into claims for pain and suffering, shock, disfigurement, loss of
amenities of life and shortened expectation of life.14
6
Neethling and Potgieter Law of Delict 16.
7
Neethling and Potgieter Law of Delict 8-16.
8
Neethling and Potgieter Law of Delict 16-17.
9
Neethling and Potgieter Law of Delict 8-12.
10
Lillicrap, Wassenaar and Partners v Pilkington SA (Pty) Ltd 1985 1 SA 475 (A) 500 503-504.
11
Neethling and Potgieter Law of Delict 15.
12
Neethling and Potgieter Law of Delict 16-17.
13
Neethling and Potgieter Law of Delict 25; Potgieter JM, Steynberg L and Floyd TB Visser & Potgieter Law of
Damages 3rd ed (Juta and Company (Pty) Ltd Cape Town 2015) 108.
14
Potgieter, Steynberg and Floyd Law of Damages 108-112.
