SU 3.

3
NON-PATRIMONIAL LOSS
 In this study section we will look at:

Non-Patrimonial Loss

SU 3.3.2 Infringements of
SU 3.3.1 Pain and suffering
personality rights
 SU 3.3.1 Pain and suffering
L&M 83-85; 359-360

Learning Outcomes
After studying the materials and completing the activities in this study section you should be
able to:
 List the different types of harm included under “pain and suffering”;
 Explain what each of these types of harm consists of;
 Explain the nature and purpose of compensation for pain and suffering
Pain and Suffering

 Harm must be linked to some physical injury to the

plaintiff.
 Cannot claim pain and suffering for pain experienced by
seeing harm caused to someone else.
 Harm is therefore linked with the physical injury to the
plaintiff and not someone else.
 Pain and suffering: Two concepts

Pain and suffering

1. Pain and suffering (In the

2. Loss of amenities life
literal sense)

General Loss of life

Physical Psychiatric inconvenie expectanc
Pain Harm nce y

Disability or
Discomfort disfigurem
ent
Pain and suffering (In the literal Loss of amenities of life
sense)

Pain that has been experienced and pain that will Diminution in the full pleasure of living and loss of
continue to be experienced in the future. enjoyment of life

Has to be experienced subjectively Can be experienced subjectively or objectively

Includes nervous shock, psychological harm,

mental anguish or distress as well as fear, anxiety
or trauma
 Comatose state

What is a comatose state?

 Prolonged unconsciousness. The purpose is in a coma. Usually has minimal brain activity.
 Can we say that such a person is experiencing harm that could be compensated under the Germanic remedy?
Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W)
 Plaintiff suffered injury to the brain, was in a coma and it was determined that he would never regain consciousness again Was in a
vegetative state for the rest of his life, which was estimated to have been reduced to three years.
 Claim for loss of amenities of life.
 Court found that damages extended to include compensation for pain, suffering, loss of amenities of life, and the shortened for a person in
this state
 Same approach was later followed in Reyneke v Mutual and Federal Insurance Co Ltd. 1991 3 SA 412 (W)
 Rejected in:
 Collins v Administrator, Cape 1995 4 SA 73 (C)
 Plaintiff also suffered severe brain damage. Left in a permanent vegetative state and
suffered reduced life expectancy. She had no intellectual function, no awareness of
environment or herself. Unawareness of pain.
 Court found: No use compensating her. She was not even aware of her state and would
thus not be aware of the award. Would never derive any benefit from it.
Purpose of compensation for pain and
suffering

 Action: Germanic action for pain and suffering

 Harm in the form of pain and suffering has no economic value

 However, courts nevertheless award an appropriate amount of money for the purpose
of providing solace to the victim, and not to serve as punishment for the wrongdoer.

1. Solace for physical pain or discomfort experienced as a result of injury

2. Psychological harm in the form of shock caused by injury or distress due to

disfigurement

3. Loss of amenities
 Study Unit 3.3.2 Infringement of Personality
Rights
L&M 86-94

Learning Outcomes
After studying the materials and completing the activities in this study section you should be
able to:
 List the different personality right recognised in South African law of delict;
 Explain what the infringement of each right consists of;
 Describe the relationship between common law personality rights and fundamental
rights set out in the Constitution; and
 Set out the nature and purpose of satisfaction for infringements of personality rights
 Non-Patrimonial Loss

SU 3.3.2 Infringements of
SU 3.3.1 Pain and suffering personality rights
PERSONALITY RIGHTS

Common law personality interests:

 1.Bodily integrity (corpus)
 2.Dignity (dignitas)
 3.Reputation (fama)

 SA courts later added identity and privacy under dignity

 BODILY INTEGRITY

Normally violated:
 Physical mental integrity (assault)
 Personal freedom/deprivation of liberty (wrongful arrest)
Dignity

 A complex concept.
 1. Dignity in the narrow sense (self-esteem).
 2. Broad/umbrella sense (a variety of associated personality interests).
 Violation of dignity in the narrow sense: Defendant’s behaviour must have
had some degrading or insulting effect- contumelia.
 Subjective test.
 Focus is on what the plaintiff experienced.
Privacy

 Protects person’s interest to enjoy personal space and peace and tranquillity.
 Factual disturbance usually occurs in one of two ways:
 1.Intrusion –(for example searches and seizures by police, entry private
premises, reading of private documents).
 2.Disclosure –(for example disclosure of private/confidential facts.
 Violation must have occurred in a legally unacceptable way.
 Subjective determination of personal sphere of a person.
Identity

 Unique characteristics that distinguishes a person from others.

 Aspects of personality which are distinctive of or peculiar to a person(eg;
life history, character, name, handwriting).
 Right to identity is a person’s right to his or her image and aspects
associated with it.
 Infringed when aspects associated with a person’s particular image are
used outside the sphere or scope of that image.
 One has to determine whether the violation occurred in a legally
unacceptable way.
Reputation

 Is concerned with a person’s public esteem.

 Violated when one lowers the public esteem in which another person is
held.
 There must have been some publication of defamatory material to
someone other than the plaintiff and the defendant.
 Result= people think less of the plaintiff than previously.
Common law and Constitution

Common law concept of dignity Dignity set out in Constitution

Right to dignity Right to dignity (S10)
Right to privacy Right to privacy (S14)
Right to reputation No right to reputation

Right to identity
Right to bodily integrity
 Common law and the Constitution

 The right to identity is not pertinently recognised in the Constitution in the BOR or as part of the
right to dignity.
 Even though the Constitution does not specifically mention the right to reputation, it is
recognised as a human right.
 Reputation is seen as part of a person’s human right to dignity.
 Constitution unlike common law does not distinguish between personal feelings and self-esteem,
and a person’s esteem in the eyes of others.
 Constitutional right to dignity is seen to cover both.
 Courts: No conflict between Constitution and common law.
 Common law should not be incompatible with the Constitution.
 Common law right to reputation does not violate constitutional right to dignity; gives effect to it
and protects it.
 Therefore compatible.
Satisfaction for infringement of
personality interests

 Action: Actio iniuriarum.

 Satisfaction: Aim is to provide Plaintiff (and community) with sense of
justice.
 Pain and
suffering
Pain and
suffering
Loss of
amenities of life

Bodily integrity
Non-
patrimonial loss
Dignity

Infringement of Privacy
personality
interests
Identity

Reputation