What is non-patrimonal harm?
Pain and/or suffering that accompanies injury, from physical pain, disfigurement, psychological harm and loss of zest for life. The common-law basis for this type of non-patrimonial claim for pain and suffering is the so-called “action for pain and suffering”
What are the possible harms in pain and suffering?
In the case of pain and suffering, the harm would possibly:
- Physical pain
- Disfigurement
- Psychiatric lesions
- Loss of amenities of life
- Grief
What are the requirments to claim for pain and suffering of physical harm?
- The extent of the harm suffered by the victim is purely determined with reference to the intensity of the injuries inflicted (Radebe)
- They made it clear that a person will only be able to claim for physical pain if that person was aware of the pain at that time (Sigournay)
What are the requirments to claim for pain and suffering for disfingurment?
Due to the victim being very self-conscious of his condition and that such a feeling was not likely to disappear completely over time (Blyth)
What are the requirments to claim for pain and suffering of Psychiatric lesions?
- If the conduct causes a psychosocial disability in a victim (Bester)
- Suffering psychological condition due to emotional trauma (Barnard)
- If a wrongdoer exacerbates or aggravates an existing or ongoing psychiatric injury, that still amounts to the infliction of pain and suffering (AK)
What are the requirments to claim for pain and suffering loss of amenities?
The amenities of life derive from such simple but vital functions and faculties as the ability to walk and run; the ability to sit or stand unaided; the ability to read and write unaided; the ability to bath, dress and feed oneself unaided; the ability to exercise control over one’s bladder and bowels. (Kriel)
What are the requirments to claim for pain and suffering of Grief
The court held that the family could claim for the emotional shock attributable to a psychiatric lesion caused by the circumstances, and grief and bereavement can also be claimed under this (MK)
How do the courts establish the general remedies of a non-patrimony?
- Courts have broad discretion to decide the amount of general damages, and even though this task isn’t an exact science or something that can be calculated using a set formula, a trial court must, at the very minimum, articulate the factors and circumstances it found significant when assessing the damages. (Road Accident Fund v Marunga)
- The Court has never attempted to lay down rules as to the way in which the problem of an award of general damages should be approached. The accepted approach is the flexible one (Bailey)
- We use comparable cases, when available, these should rather be used to afford some guidance, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. (Lamb)
What is vicarious liabilty?
Vicarious liability is when one person is held liable for the conduct of another again without that person having to be at fault
What is the rational underpinning this vicarious liability?
Rationals underpinning this liability: (Feldman)
- The fact that the nature of the office or the relationship of the person who may be held liable had introduced a risk to society.
- The person who may be held strictly liable in some way benefits from the conduct of the person who actually committed the liability-attracting conduct.
What is are the requirments of an employment liability requirments?
Employment (Employer-employee) liability requirements:
- The employee commits a delict
- An employee is employed by the employer
- Employee committed the delict in the course and scope of employment.
How do establish the requirment that the an employee is employed by the employer?
this is tested by the dominant impression test based on considering a range of factors, including centrally, but not decisively, whether the “employer” had the right of supervision and control of not only what the “employee” did, but how it was done (Smit)
What are the two cases used to establish if an employee committed the delict in the course and scope of employment?
- Standard cases - Where an employee commits the delict while engaged in the employer’s business and therefore furthering the employer’s interests (Von Benecke)
- Deviation cases - Where the delict takes place outside the course and scope of employment, however, there is still a link between the delict and the employment relationship. This requires a normative inquiry into whether there is a sufficiently close link between the conduct of the employee and the business of the employer
What is the basic test of a devaition case?
Deviation cases basic test: (Rabie)
- An act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course and scope of his employment, and that in deciding whether an act by a servant does so fall, some reference is to be made to the servant’s intention (Subjective test)
- If there is nevertheless a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master, the master may yet be liable … a master is liable even for acts which he has not authorised provided that they are connected with acts which he has authorised (objective)
What are the considerations the court held in relation to a deviation case, K v Minster of Saftey?
K v Minister of Safety and Security, the Constitutional Court based its decision on the following considerations:
- The opportunity to commit the crime would not have arisen but for the trust the applicant placed in the policemen because they were in uniform and on duty.
- This trust aligns with the constitutional mandate of the police and the need to fulfill that mandate.
- When the policemen raped the applicant, they simultaneously failed in their duty to protect her.
- They infringed on her rights to dignity and security of the person, and the employer’s obligation to prevent crime was not met.
What was the factors the court considered in a deviation case F v Minister of Saftey?
F v Minister of Safety and Security, the court considered these factors to establish a sufficiently close link between the conduct of the employee and the business of the employer:
- The state’s constitutional obligations.
- The reliance and creation of trust.
- Whether the employee was on duty or off duty.
- The interplay between the commission and the omission of the employee.
What was held in Booysen?
The presence or absence of trust is not the sole factor in deciding vicarious liability in ‘deviation cases. (Booysen)
What does section 38 of the Constitution state about remedies?
Section 38 of the Constitution makes it plain that where a right has been infringed, an effective remedy must follow. “ubi ius ibi remedium” (wherever there is a right, there
must be a remedy)
When is an interdict vaild?
Where harm is being threatened but no harm has been sustained, the appropriate remedy might be an interdict by itself.
What is a mandatory interdict?
When the interdict mandates a person to actively do something, it is called a mandatory interdict.
What is a prohibitory interdict?
When the interdict prohibits a person from doing something, it is called a prohibitory interdict.
What are the requiremnts to claim an interdict?
The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy. (Setlogelo)
What is the money rule used to determine patrimonal harm?
Money rule - When someone suffers financial losses (patrimonial loss) due to personal injury, they must receive monetary compensation rather than a return of the damaged property (restitution in kind). Claimants have a duty to mitigate their damages by obliging a plaintiff to take reasonable steps to minimise the loss, either by reducing the original loss or by averting further loss (Kiewitz)
What is once and for all rule used to determine patrimonal harm?
once-and-for-all rule - a plaintiff must generally claim in one action all past and prospective damages flowing from one cause of action and the court is to award this in a lump sum (DZ obo WZ)
