DEL | Ch. 9 - Forms of damnum iniuria datum

Question 1

What is damnum iniuria datum?

Answer 1

Delicts involving patrimonial damage

Question 2

What are the types of iniuria applicable?

Answer 2

Patrimonial loss suffered by a person as a result of -

1. The death or injury of another person (action of dependants of injured or action of non-dependents)
2. Emotional shock
3. Pure economic loss
4. Negligent misrep
5. Interference with a contractual relationship.

Question 3

What are the two parts of ‘injury or death of another person’?

Answer 3

• Action of non-dependents

- Action of dependents

Question 4

Is the Aquilian action available to everyone who suffers patrimonial damage as a result of wrongful and culpable injury or death? If not, name the cases that are not applicable.

Answer 4

No.

1. Contracting parties
2. Heirs and legatees
   a. Executor
   b. Heirs and immediate family: funeral expenses
3. Persons having a duty of support
4. Master-domestic servant

Question 5

Discuss ‘contracting parties’ in light of ‘injury or death of another person’

Answer 5

1. Persons who stand or stood in contractual relationship to injured or deceased cannot claim for the loss they suffered where it constituted a negligent interference with the contractual relationship.
2. This is dictated by LEGAL POLICY
3. Union Gov v Ocean Accident and Guarantee Corp the court showed that this would lead to an “unmanageable situation”
4. An employer cannot institute the Aquilian action for loss suffered as a result of injury to an employee (Pike case)
5. A person who has a contractual (personal) right of support cannot IN PRINCIPLE claim for loss of support as a result of the death or injury of the person supporting them.

Question 6

Discuss ‘heirs and legatees’ in light of ‘injury or death of another person’

Answer 6

1. An heir or legatee has no claim for damages on the ground that the premature death of the deceased had probably prevented his future estate fro being larger.
2. Lockhat’s Estate case
3. The fortune of an estate is unpredictable and that an heir will consequently not be in a position to prove his loss (it would amount to pure speculation).
4. But, the Aquilian action IS available to
   a. Executor: May claim medical expenses, loss of income, and funeral expenses.
   - Except where litis contestatio occurred before the death of the deceased, the executor cannot, claim compensation for the loss of the deceased’s future income.
   - The deceased is not an asset in his own estate.
   - Thus, his death does not in itself bring about an actionable financial loss.
   b. Heirs and immediate family (funeral expenses): Where the heir or a member of the deceased’s immediate family iso the executor meets the funeral expenses, the former may recover his expenses from the wrongdoer.
   - The claim is based on the duty to bury the deceased.

Question 7

Discuss ‘persons having a duty of support’ in light of ‘injury or death of another person’

Answer 7

1. In principle, a person who bears a duty of support (such as father or husband) may institute the Aquilian action against a wrongdoer who wrongfully and negligently injures the former’s dependant and thereby adds additional liabilities to his duty.
2. This claim flows from the duty of the person involved to support his dependents.
3. According to our courts the action is not based on a delict committed against the person who has the duty of support, but on non-compliance with a duty of care towards the dependent.

Question 8

Discuss ‘master-domestic servant’ in light of ‘injury or death of another person’

Answer 8

1. The common-law position is that the actio legis Aquiliae was available to a master if he suffered patrimonial damage as a result of wrongful and culpable injury to domestic servant.
2. This was confirmed in Union Gov. v Ocean Accident and Guarantee Corp.
3. But, in Pike v Min. of Defence court held that this rule had been abrogated by disuse and is no longer part of our law.

Question 9

What are the 2 parts of ‘action of dependents’?

Answer 9

• Death of the breadwinner

- Injury to the breadwinner

Question 10

Discuss ‘death of the breadwinner’ in light of ‘action of dependants’

Answer 10

1. The dependent of a person killed (wrongfully and culpably) may claim damages for loss of support from the wrongdoer with the actio legis Aquiliae
2. Comes from Germanic customary law (not Roma law)
3. The courts regard the action as an anomaly because it is not a delict committed against the dependent himself, but on A DELICT COMMITTED AGAINST THE BREADWINNER.
4. The dependent thus has to prove that the death of the breadwinner was caused wrongfully and culpably.
5. But, the dependant institutes the action in his OWN NAME, since the action does not derive from the deceased or his estate, but that the dependant is DIRECTLY ENTITLED thereto as a result of his loss of support.

Question 11

What are the requirements for a claim of loss of support?

Answer 11

1. The deceased, while he is still alive, must have been under a DUTY TO SUPPORT the dependant *which duty must have been legally enforceable inter partes)
   - The existence of a duty of support is subject to the qualification that the dependent must be IN NEED of support and the breadwinner must be CAPABLE OF PROVIDING such support.
2. The dependant must have had a RIGHT to (such) support (which must be capable of legal protection against 3rd parties).
   - The existence of a right to support must be determined with reference to the boni more criterion of wrongfulness.
   Requirements come from case of Santam v Henery; Amod; Du Plessis.

Question 12

From which sources can the legal duty of support arise?

Answer 12

1. Legal marriage: There is a reciprocal duty of support between spouses.
   - The wife’s duty is subsidiary in the sense that it only comes into operation if the husband is unable to provide support, ot if it is necessary fro the maintenance of the common household.
2. Civil union
3. Blood relations: A child (even a major) has a right to support from both his father and his mother.
   - A parent has a right of support from his own child (also a minor)
   - Grandparents have a right of support from grandchildren, but only where their own children are dead or unable.
   - A sibling may claim support from his other siblings if parents unable to support. This does not extend further, so step-parent and child or persons related by affinity have no mutual right to support.
4. Adoption (same position as blood relatives)
5. Statute (black woman indigenous-law)
6. Court order (divorce) (Santam v Henery)
7. Contract: The NATURE of the contractual relationship founding the duty will help determine if this is applicable.

Question 13

Discuss defences against a claim for support

Answer 13

1. Ito positive law any defence which could have been raised successfully against a claim by the breadwinner (were he alive) should also succeed against the dependant’s claim.
2. Since the theoretical approach is based on the fact that a delict is committed against the dependant, the effect of a ground of justification raised wrt the breadwinner’s death, a pactum de non petendo in anticipando concluded by him, and contributory intent and contributory negligence on his part must be considered.
3. Where the breadwinner concluded a pactum de non petendo in anticipando with the defendant, it should make a difference whether the dependant’s action is based on a delict against the breadwinner or against te dependent.
   a. If the former is followed, the pactum should be a complete defence against the action of dependants. But this is not followed by our courts.
   b. In Jameson’s Minors v CSAR (breadwinner killed in train accident | “free pass”) the court decided that such a pactum was no defence against the dependants’ action.
4. In the case of contributory intent (voluntary assumption of risk) is only of academic interest, since the Apportionment of Damages Act treats the breadwinner and the 3rd party as joint wrongdoers as against the dependant.

Question 14

Discuss ‘injury to breadwinner’ in light of ‘action of dependants’

Answer 14

1. The dependants of a person INJURED in a wrongful and culpable manner should be able to claim loss of support with the Aquilian action.
2. In principle there is no distinction between whether the breadwinner is deceased or injured. Thus, the principles relating to te death of a breadwinner apply mutatis mutandis.
3. Again, ito the Apportionment of Damages Act the dependent is granted an action if the injured breadwinner and the 3rd party acted negligently and are regarded as joint wrongdoers against the dependant.

Question 15

What is a psychological lesion?

Answer 15

A psychiatric injury or psychological disturbance that is any recognisable harmful infringement of the brain and nervous system of a person.
- As a rule, the existence of such lesion should be proved by supporting psychiatric evidence.

Question 16

What must be determined, in essence?

Answer 16

“The only relevant question is whether the plaintiff sustained a recognisable psychological lesion” - Barnard v Santam

Question 17

What is the locus classicus for impairment of personality and patrimonial loss resulting from psychiatric injury or emotional shock?

Answer 17

Bester v Commercial Union Versekeringsmaatskappy van SA

- The action for pain and suffering and the actio legis Aquiliae are both founded

Question 18

Before the Bester case, which 2 restrictions on liability applied?

Answer 18

1. The shock must have originated from a PHYSICAL INJURY o resulted in harm to the physical constitution [wrongfulness]; and
2. The aggrieved party himself must have been in PERSONAL DANGER of being physically injured [negligence / legal causation].

Question 19

Discuss ‘wrongfulness’ ito psychological lesions

Answer 19

1. Requirement for physical harm rejected by Bester (“the bain and nervous system are as much a part of the physical body as an arm or leg”)
2. Insignifiant emotional shock of brief duration and with no material impact on the well-being of the person will not actionable. De minimis non curat lex.
3. Thus, to be actionable the harm caused by the shock must be REASONABLY SERIOUS

Question 20

Discuss ‘negligence and legal causation’ ito psycholifcal lesions

Answer 20

1. Requirement for personal danger was rejected by Bester and replaced with REASONABLE FORESEEABILITY of harm.
2. The question of negligence arises where the shock or psychiatric injury is the only or at least one of the first 1st harmful consequences of the wrongdoer’s conduct. Thus, in order to establish negligence, the reasonable foreseeability and preventability of the psychological lesions must be ascertained.
3. But, where the emotional shock is a further (subsequent or more remote) consequence of the wrongdoer’s already established negligent act the question of LEGAL CAUSATION is at hand (ie. whether the wrongdoer’s negligent act can be regarded as the legal cause of the psychological lesion.
4. The view that reasonable foreseeability of remote psych. lesions is concerned ith legal causation is not supported by Barnard case.

Question 21

Discuss the foreseeability test ito establishing negligence or legal causation

Answer 21

1. Must take into account all relevant circumstances, whether the psychiatric injury was reasonably foreseeable.
   - The following may play a role:
   a. The fact that the psych. lesion resulted from physical injury, was connected with such injury or sustained together with it;
   b. The fact that the plaintiff was in personal danger of being physically injured;
   c. The fact that the plaintiff was informed of the death or injury of a close relative;
   d. The fact that the plaintiff personally witnessed the death or injury of someone with whom the plaintiff had a close relationship.
2. Once the court has found that reasonably serious emotional shock was reasonably foreseeable, the wrongdoer is then liable for any detrimental physical or mental consequences ensuing from the emotional shock, regardless of whether such consequences were foreseeable as well.
3. The talem qualem (“thin skull”) rule applies.

Question 22

Name the 3 forms of ‘pure economic loss’

Answer 22

1. Pure economic loss comprising of patrimonial loss that does not result from damage to property or impairment of personality;
2. Pure economic loss referring to financial loss that does flow from damage to property or impairment of personality, but which does not involve the PLAINTIFF’s property or person;
3. Pure economic loss referring to financial loss that does flow from damage to the PLAINTIFF’s property, but the defendant did not cause such damage or injury,

Question 23

How is liability founded ito pure economic loss?

Answer 23

• All the general requirements for a delict

- The element of wrongfulness is the element of note here

Question 24

In which case was pure economic loss described?

Answer 24

Telematrix v Advertising Standards Authority
- “Loss that does not arise directly from damage to the plaintiff’s person or property but rather in consequence of the negligent act itself, such has loss of profit, being put to extra expenses or the diminution in the value of property”

Question 25

Should theft of property be considered pure economic loss?

Answer 25

No, it qualifies as property damage, which is prima facie wrongful. - Imvula case

Question 26

Discuss wrongfulness iro ‘pure economic loss’

Answer 26

1. Wrongfulness lies either in the infringement of a subjective right, or in the breach of a legal duty to avoid damage.
2. According to our courts, the wrongfulness of an act causing pure economic loss almost always lies in the breach of a legal duty. (Scott case)
3. A general duty to prevent pure economic loss for other persons does not exist; or, in other words, that the factual causing of pure economic loss is not prima facie wrongful. Thus, it must be determined in each case whether, accoridng to the circumstances, there was a legal duty to avoid pure economic loss.
4. The yardstick that must be applied in this determination is the general criterion of reasonableness or boni mores. This requires the court to exercise ‘a value judgment embracing all relevant facts and involving considerations of policy’. (Described as the ‘policy based aspect of the ‘duty of care’, by which the scope of delictual liability is judicially controlled’)
5. The boni mores criterion implies a careful weighing up of the interests of the parties involved, taking into account public interest.

Question 27

Discuss the application of the boni mores test to determine legal duty wrt pure economic loss

Answer 27

In applying this test the courts attach importance to the following factors:

1. Knowledge: The fact that the defendant knew or subjectively foresaw that his negligent conduct would cause damage to the plaintiff. This plays a crucial role in determination of legal duty.
2. Reasonable foreseeability: The fact that the defendant should have foreseen that negligent conduct on his part would harm the plaintiff. The rule is that the greater the foreseeability of damage, the greater the possibility that a legal duty to prevent damage exists.
3. Practical measures: Whether practical steps could have been taken by the defendant to prevent the economic loss.
4. Professional knowledge and competence: The fact that the defendant exercises a certain calling and thereby possesses or professes to possess special skill, competence and knowledge. Where the defendant is rendering professional services, he has a duty not to cause financial loss to others.
5. Extent of risk: The degree or extent of the risk of economic loss being suffered by the plaintiff. The factor is indicative of the NEED for protection in a particular situation.
6. Extent of loss: The fact that the situation can lead to INDETERMINATE LIABILITY or is one fraught with an overwhelming potential liability. This applies where the act complained of would probably result in a “multiplicity of actions” which could be “socially calamitous”.
   - Where these circumstances are present, the view is held that the defendant does NOT have a legal duty to avoid damage.
7. Statutory provision: The fact that a statutory provision expressly or by implication prescribes the defendant must prevent (economic) loss.
8. Other factors

Question 28

Discuss the action of the disappointed beneficiary

Answer 28

1. Boe Bank v Ries confirmed that it was in favour of this kind of delictual action
2. A prejudiced beneficiary will, therefore, succeed if his claim complies with all the ordinary requirements of a delict.
3. The following factors are strongly indicative of a legal duty to prevent prejudice to a beneficiary:
   a. The existence of a valid contract between the defendant and the testator placing a duty on the defendant to act with the necessary care to ensure that a particular benefit will accrue to the beneficiary;
   b. The existence of a delictual legal duty on the defendant to refrain from wrongful conduct against the testator which could deprive the beneficiary of a particular benefit.

Question 29

What is misrepresentation?

Answer 29

When the wrongdoer makes an incorrect or misleading representation in a wrongful and culpable manner to another person who acts on it to his detriment.

Question 30

In which case did the court confirm that the Aquilian action is based on NEGLIGENT misrepresentation too?

Answer 30

Administrateur Natal v Trust Bank van Afrika

Question 31

Which elements are of particular importance to negligent misrepresentation?

Answer 31

Wrongfulness and negligence.

• The question of whether there was a misrepresentation involves the act as delictual element and is the 1st requirements for liability on the ground o negligent misrep.
• The existence of a misrep can take place in the form of omission or a commission.

Question 32

Discuss ‘wrongfulness’ iro misrep

Answer 32

1. Wrongfulness lies either in the infringement of a subjective right, or the breach of a legal duty.
2. Where negligent misrep causes pure economic loss, an identifiable subjective right is usually absent.
3. Therefore, wrongfulness is determined by deciding whether there was a breach of legal duty.
4. The reasonableness or boni mores criterion should be employed to ascertain the existence of such a legal duty.
5. Negligence - even gross negligence - plays no part in determining the wrongfulness of a misrep.

Question 33

What is the crucial question for wrongfulness iro misrep?

Answer 33

Whether the defendant was under a LEGAL DUTY to furnish the correct information in the particular circumstances.

Question 34

Is there a legal duty to give correct info?

Answer 34

Not if it is given INFORMALLY. But, a malicious or improper motive may still make it wrongful.

Question 35

What are the 2 parts of determining wrongfulness iro misrep?

Answer 35

1. There is in principle no legal duty to give correct information where such information is merely furnished informally.
   - Negligence plays no part in determining wrongfulness.
2. There is in principle a legal duty to furnish correct information in the following instances:
   a. Where a person has a statutory duty to furnish the correct information;
   b. Where there is a contractual undertaking to furnish the correct information;
   c. Where there is a contractual relationship between parties (without undertaking to furnish correct info);
   d. Where a person, who by reason of a SPECIFIC PUBLIC OFFICE that he holds (ie. notary, auditor) has a kind of patent of credibility and efficiency conferred upon him by public authority, furnishes info in his official capacity;
   e. Where a person has specific info in his exclusive possession by reason of his particular occupation, and this info cannot, therefore, be obtained in another manner than from that person;
3. Where a person, who by reason of his particular occupation to command professional knowledge and competence, furnishes information in a professional capacity.
   - The fact that the presence of 1 of these factors indicates a legal duty to provide correct info, in general, does not mean that breach thereof amounts to wrongful conduct as against a particular person. For this to happen, it must be established that the legal duty in fact existed against that person.
   - This will be the case if the person responsible KNEW or SUBJECTIVELY FORESAW, at the moment of furnishing the information, who the person or person were who would respond to or RELY on it.
   - The defendant’s legal duty and his liability are thus restricted to plaintiffs of whose identity he was certain at the time.
   - The misrep must, judged objectively, be “material” in the sense that it would have influenced a reasonable person to react to or rely on it.
   - Despite the above, the court may still refuse to construe a legal duty for considerations of legal policy, where liability could lead to “a multiplicity of actions” that could be “socially calamitous”.

Question 36

Discuss negligence iro misrep

Answer 36

1. If it is established that the defendant had a legal duty to furnish the correct info, non-fulfilment of which caused patrimonial loss to a specific person or persons, then he acted wrongfully.
2. However, to establish liability, the wrongdoer must also have acted negligently (differently from the way in which a reasonable man would have acted in the particular circumstances). If the wrongdoer showed the necessary care in spite of the non-fulfilment of his legal duty, he ought not to be liable, on account of the absence of fault.
3. If it is found that wrongdoer acted negligently, the possibility of contributory negligence on the part of the prejudiced party must be borne in mind.

Question 37

Discuss causation irp misrep

Answer 37

1. In Administrateur Natal v Trust Bank van Afrika the court pointed out that apart from wrongfulness and fault, causation may also be instrumental in keeping the present action within reasonable limits.
2. Factual causation: Condictio sine qua non; there must be a factual causal link between the misrep, the misunderstanding and the damage. Thus, the plaintiff must have been misled by the misrep and the plaintiff must have acted to his detriment as a result of the misrep.
3. Legal causation: Flexible approach (Bentley case) is used, where the crucial question is whether there is a sufficiently close nexus between the wrongdoer’s act and the harmful consequence that the consequence can be imputed to him. The existing criteria of legal causation (eg. reasonable foreseeability) plays a secondary role in the flexible approach.

Question 38

Discuss the 3 matters related to negligent misrep as a delict

Answer 38

1. The plaintiff himself must be the person who acted to his detriment as a result of the misrep. If 3rd parties acted, the plaintiff does not have an action on the ground of negligent misrep.
2. The delictual liability of auditors and public accountants to 3rd parties for negligent misrep has been regulated by legislation.
3. The courts were traditionally opposed to the granting of delictual action for damages that result from negligent misrep which induces a contract. The courts changed this in the Bayer SA v Frost case.
   - But, where the misrep is incorp into the contract, no need for a delictual remedy exists and the prejudiced party to the contract must rely on his contractual remedies.

Question 39

Discuss ‘interference with a contractual relationship’

Answer 39

1. Is present where a 3rd party’s conduct is such that a contracting party does not obtain the performance to which he is entitled ex contractu, or where a contracting party’s contractual obligations are increased.
2. The following instances have crystallised in case law:
   a. Most decisions deal with intentional interference causing one of the contracting parties to commit a breach of contract.
   b. Interference with a contractual relationship is also present where a contracting party does not obtain the performance to which he is entitled ex contractu, but without breach of contract taking place or the conduct amounting to enticement.
   c. Interference with a contractual relationship may occur in circumstances where there is indeed an act of inducement, but the inducement causes a lawful termination of the contract and not a breach of contract.
   d. Interference with a contractual relationship may take place where a contracting party’s contractual obligations are increased.

Question 40

What is the general rule iro contractual relationship?

Answer 40

Subject to the general rule that only the INTENTIONAL interference with the contractual relationship of another in principle constitutes an independent delictual cause of action.

• In Union Gov v Ocean Accident the courts have as a rule refused to extend delictual liability for NEGLIGENT interference with a contractual relationship being the historically justified instances. These are:
  a. Delictual action of the master for injury to his domestic servant;
  b. A person who is in possession of property ito a contract with the owner may, to the extent that he has a direct interest in the economic value of such a thing, institute the actio legis Aquiliae against a 3rd party who damages it.
• Apart from the hire-purchaser, the seller as owner of the damaged thing may also institute the Aquilian action.
• Not every factual interference with a contractual relationship by a 3rd party is wrongful, it would be wrongful only if it was also contra bonos mores or unreasonable.