Harm: General Principles

Study Unit 3.1

MONDAY 13 MARCH 2023

PATRIMONIAL LOSS
(e.g. car damaged in
collision)
• Financial loss
• Damage measured in
monetary value
• E.g. repair costs vehicle
• Court can determine
amount exactly: plaintiff
submits invoice, account
Harm or loss that
affects your “pocket”.
NON-PATRIMONIAL LOSS
(e.g. defamation)
• Not directly measurable in
money
• When personality right
(e.g. reputation) is
infringed
• Amount awarded by court:
discretion
Harm/ loss that affects your
“heart” or feelings, e.g.
defamation which harms your
reputation.
PATRIMONIAL NON-PATRIMONIAL
LOSS: LOSS:

• Claimed with action

Always claimed with for pain and
actio legis Aquiliae suffering (in case of
physical injuries or
psychological harm)
OR
• Claimed with actio
iniuriarum (e.g.
defamation –
reputation
damaged)
Hint:

Actio iniuriarum:

iniuria rum

“injury”
Significance of harm/ loss
• Element of harm / loss central to delictual liability

• One of main differences delict and criminal law

• Type of harm determines which action to be used

• Client’s main priority?

- To restore the pre-delictual position (monetary loss)

In terms of Aquilian Action – monetary loss due to physical damage to
person / property.

- To compensate by way of solatium/solatia – claim for satisfaction

In terms of Actio Inuriarum - compensation for emotional harm/infringing
dignity, reputation and physical integrity)
 Compensatory function of law of delict
• Which remedy is available iro each action?

• Actio legis Aquiliae – damages – physical harm to property

or person
Aim: to put plaintiff in position that she would have been
had the delict not been committed (as far as possible)

• Action for pain and suffering – compensation – bodily

injury
Aim: address plaintiff’s feeling of unhappiness (arising from
pain and suffering)

• Actio iniuriarum – satisfaction (solatio) – injury to

personality interest
Aim: provide plaintiff (and community) with sense of justice
- (Monetary award cannot compensate in sense of
restoring situation prior to delict)
Terminology
Different terms used:
• Harm (Physical damage)
• Loss
• Damage
To avoid confusion, we will
use “harm or loss”

• NB!! Difference between “damage” and “damages”

• Damages = remedy – that which plaintiffs claim in the

event of suffering physical damage, harm or loss
• Damages = monetary compensation awarded to
plaintiff
“Actionable harm”

• To determine element of harm:

look at -
• whether plaintiff has an
interest / common law right
that is protected by law of
delict
• If so, whether this interest has
been infringed (affected in
negative way)
• “Actionable harm” – harm for
which plaintiff can claim
compensation in delict
Example:
Please read the following scenario:

Ron has been happily married to Sally for the last eight years. They have two
children aged five and three years respectively. Because Sally earned a very
good salary, the two spouses decided that she would be the breadwinner
and Ron would stay at home to take care of the children until they both
reached school-going age. Two months ago, Ron was involved in a traffic
accident (a speeding bicycle hit him from behind while he was walking on the
pavement) and he died on the scene.
Consider the following:
Sally believes that the cyclist was negligent and she would like to find out
whether she would be able to found a claim in delict against him for the harm
suffered as a result of Ron’s death. This includes the grief she is
experiencing, the loss of companionship that Ron had provided as well as
the expenses that she will incur in future to place their children in a day-care
centre or to employ a child-caretaker. Assuming that she does have a
claim against the cyclist, which harm can she claim for?
Harm suffered?

• To determine whether Sally has suffered harm: compare her

situation before the delict was committed with her situation
afterwards (more on this in SU 3.2)
• If plaintiff’s legally protected interests have been affected in
negative way plaintiff has suffered harm
Right of one spouse to society or services of the other = right to
consortium

• To answer the question in this example:

Step 1: Identify all forms of harm suffered by the plaintiff

Step 2: Determine whether these forms of harm are actionable in

delict (i.e. can be compensated for, in a delictual action)
Harm suffered?
• Compare plaintiff’s situation before the delict v after the delict
• Ask:
o What has plaintiff “lost”?
o What has plaintiff “gained”?

“Lost”? (Harm) “Gained”? (Harm)

• “Companionship” of
spouse (n/p)
• Assistance of spouse in
raising children (p)
• Financial obligation:
support of spouse (p)
• Expenses: funeral/cremation
(p)
• Expenses: day care/ child
carer for children (p)
• Feelings of grief and
bereavement (n/p)
Harm suffered?
• Divide into two broad categories of harm – patrimonial/ non-
patrimonial loss:

• Expenses: funeral/ cremation

• Expenses: day care/ child-minder for children
Patrimonial
BUT: plaintiff no longer has financial obligation loss
to provide financial support to spouse
– must be “set off” against expenses incurred
to determine patrimonial loss

• Feelings of grief and bereavement Non-

• “Companionship” of spouse patrimonial
• Assistance of spouse in raising children loss
(Loss of consortium)

NEXT QUESTION: Are these forms of harm actionable?

Union Government v Warneke 1911 AD 657

• Facts similar to our example: wife killed in train accident

• Claim - Husband claims for loss of:
• “Comfort and companionship” of wife
• Assistance in caring for and education of children
• Court’s finding:
• Loss of comfort and companionship/support of wife results in
severe grief and distress – BUT this loss cannot be calculated in
money – affects the feelings of the husband and not his property.
• This aspect of the claim therefore fails – this harm is not
actionable in delict
• Exception – altered, sentiment and feeling – patrimonial status
in “Dependant’s action for damages” – proof of support.

• BUT: plaintiff could claim for financial expenditure incurred to

provide care and assistance, similar to that provided by the wife.
Important judgment

RK and Others v Minister of Basic Education

and Others 2020 2 SA 307 (SCA)

What was the court’s finding on family’s claim

for grief and bereavement arising from death
of young son?
Outline
• Recap:
o Elements of delict
o Patrimonial loss and non-patrimonial loss
o Actions used to claim in delict
• Compensatory functions of three main actions
• “Actionable harm”