ACT AND CONSEQUENCE – FACTUAL
INFRINGEMENT OF A LEGALLY
PROTECTED INTEREST
1) Act infringed an interest that is legally protected.
Wrongfulness
the infringement of a
legally protected interest
Ex post facto
Dual investigation
1) Identify right that was infringed
2) Consequence suffered and harmful
Act
Space and Time
Consequence
Santam
1) Pregnant women
2) Child had brain
3) The child was not yet born, consequently, had no legally protected interest that could be infringed.
Specififc form for danum inurium datum
1) Action of Non-dependants
2) Pure economic loss
Pure economic loss
1) in loss sustained without the
interposition/interference of
a physical lesion or
injury to a person or
corporeal property
1) No general right not to be caused PEL”
where PEL results = conduct is prima facie lawful
1) There is no right to not have economic loss
Crystallised categories in which possible imposition of liability
would be acceptable
1) Negligent misstatements,
2) Interference with contractual relations,
3) Dependants’ actions &
4) Unlawful competition
Case: Jameson’s Minors v Central SA Railway
1) This is a right not derived from the deceased man or his estate, but
independently conferred upon members of his family.
A deps’ claim ≠ entertained unless it is shown that
1) Breadwinner is deceased & while alive, the deceased had owed the dep a duty of support while alive, deceased had in fact provided support
Remedy is not derivative
1) No claim arises iro intangible aspects such as psychological,
emotional & developmental needs nor for the pain, grief or mental &
physical suffering that might result
Independent nature of action det that
any defence which is personal to the
deceased breadwinner does not operate against the dependant
Case: Jameson’s Minors v Central SA Railways
1) Deceased father travelling on a free
pass given by the railways. Free pass = conditional on the fact that he did not
hold the railways liable
2) Children were not party to this contract & therefore defence was not effective
against their claim! court held that they could recover
What is a pactum?
1) Consent
2) Doesn’t per se excl W - mere
agreement not to sue
Volenti
1) Voluntary assumption of
risk
Can parents can sue their children
1) Yes, under exceptional circumstances
Requirements for
