Law of Obligations (3) Continue Flashcards
Pain and suffering is notoriously difficult to litigate in court, why? as It is therefore unique to each person. Pain and suffering is a broad concept that deals with physical pain such as hurting limbs. It also deals with emotional pain, such as shock or PTSD, and can even cater for situations where a person is now inconvenienced as a result of a wrongdoer – i.e. because a person is now in a wheelchair
because it is dependent on the subjective feelings of the harmed party.
There are two types of claims that fall under non-patrimonial loss, and which are important to know. These claims are?
- pain and suffering, and
- the actio iniuriarum.
Explain actio iniuriarum?
which is also referred to as the infringement of a person’s personality rights. This includes bodily integrity, dignity and reputation.
Actio iniuriarum is divided into three aspects?
- Bodily integrity (corpus)
- Dignity
- Reputation
- Bodily integrity (corpus): This is when there is some form of harm to the body. If a person is illegally detained, then their freedom of movement, which is a legally protected right, is restricted. Therefore, they could sue for the infringement of their bodily integrity. It also includes assault, as this is a physical assault on the body. Another less well-known claim arising out of one’s bodily integrity is psychological harm, as a person’s brain and nervous system, which are mostly associated with psychological issues, is part of the body (Loubser et al., 2010: 53).
- Dignity: This is incredibly subjective as it depends on the subjective feelings of a person, and whether they felt wounded or offended by a certain statement. The offence must be of such a nature that it would permit the harmed party to sue for it. Other elements which fall under the dignity umbrella are privacy and identity. When a person’s privacy is invaded, or where a person feels their identity is threatened, they may bring claims as an infringement on their dignity.
- Reputation: The last element falling under actio iniuriarum is reputation. This element is always claimed in cases of defamation. When a person sues on account of them having been defamed, they will most certainly claim that their reputation has been harmed, and as a result of that, are entitled to damages.
Companies are regarded as juristic persons. This means?
They have legal rights in terms of the law. They are therefore also able to sue in terms of the law of delict. If a person damages company property, that company can sue them, as the company has suffered a patrimonial loss. A company cannot sue for pain and suffering, or for bodily integrity.
Explain conduct?
As obvious as it may seem, the general principle is that for there to be a delict, someone (the wrongdoer) must have done something. If a person merely thinks about breaking an expensive laptop but does not actually do it, then they cannot be held liable for damage to a laptop. If a person actually takes a hammer and hits a laptop, then that is physical conduct, as it is possible to prove that they physically took a hammer and hit the laptop. Their conduct caused the harm.
The duty that a person (the wrongdoer) owes to the public with regard to foreseeing and possibly preventing harm can depend on certain situations. The duty can, therefore, shift based on what circumstances are applicable?
- General practice
- Statutory duty
- Children
- Beginners vs. expertspert.
- General practice: There may be certain norms or standards that apply in a given industry with regard to how persons in that industry should conduct themselves. These norms can be referred to as a general practice.
- Statutory duty: Legislation may prescribe that people should act in a certain way. If a person does not act in accordance with legislation, then they will in all likelihood be held liable.
- Children: There must be a heightened duty when around children. If a person is driving the speed limit in a residential area and sees children playing soccer on the road, it would be unreasonable for the driver to continue driving, in the expectation that the children would move. The driver must always be cautious of children and their sporadic behaviour.
Inherently dangerous situations: If there is a dangerous item (such as a gun) or a person (such as a criminal) or a general circumstance (such as a hostage situation), then persons must act with a heightened sense of duty to the public.
Sudden emergency: It is conceivable that situations might arise where a person has to think on their feet, even if that means causing harm to others. In these circumstances, it might be appropriate to temporarily put aside the expected duty a person has to the public, in the interest of looking after their own well-being. But it must be shown that there was imminent peril which was not caused by the alleged wrongdoer.
Beginners vs. experts: If a person is an expert in a field, such as a surgeon, engineer or a seasoned accountant, then it would be unreasonable to compare their conduct with that of a reasonable person in the position of a non-expert. The ‘reasonable person’ test is therefore adapted to the ‘reasonable expert’, and the court will determine what the reasonable expert in the same situation as the wrongdoer (who is also an expert) would have done. The converse is true. If a person is a beginner, then it is unfair to apply a stricter standard to them, so the ‘reasonable person’ test will be made less strict to accommodate the beginners. The test would then become that of a ‘reasonable beginner’.
A delict occurs where a person’s?
conduct wrongfully, and either intentionally or negligently, causes harm to another person
Sanele is walking down an aisle at the local grocery store. The floor was recently mopped, but there was no sign to indicate to the customers that the floor was still wet. As he walked over the floor, he slipped and fell on his back. He subsequently suffered back problems and required extensive physiotherapy to get his back in good health again. He wants to know whether he can sue the grocery store. Only discuss the likelihood of Sanele proving that the grocery store was negligent.
Required:
1. What is the name of the test used in determining if someone is negligent?
2. What are the three questions that a court will ask when applying the above-mentioned test?
3. In your opinion, do you think the store was negligent? Give reasons for your answer.
4. If the store had in fact placed a yellow sign by the wet floor, and Sanele still slipped and hurt his back, would the answer in (iii) still be the same? Give reasons for your answer.
- Reasonable person test
- a) Was the harm foreseeable? b) Was the harm preventable? c) How do the wrongdoer’s actions differ from that of a reasonable person?
- Yes, the store was negligent, because the harm was foreseeable and preventable. A reasonable person would have taken steps to warn the customers.
- No, the answer is different. The store obviously foresaw the harm and took measures to protect its customers by means of putting up a brightly coloured sign.
What are the forms of remedies to claimed?
- Damages
- Apology
- Interdict
- Damages: It should be well established by now that if the harmed party has to pay money due to the actions of the wrongdoer, then the harmed party should be entitled to get their money back.
- Apology: Although very seldom relied on, it is possible for a harmed party to withdraw proceedings when the wrongdoer issues an apology.
- Interdict: Interdicts are only relevant before a delict has occurred. The point of an interdict is to either prohibit someone from doing something, or to force someone to do something.
Percival is apprehended after he has been found to be in the possession of stolen goods. Percival claims that the police officer infringed his bodily movement by arresting him. On what grounds may the police officer escape delictual liability?
Official capacity
Grant and Seabelo are friends who enjoy playing practical jokes on one another. One afternoon, Seabelo smeared the floor with butter, which made Grant fall and break his leg. What defence can Seabelo raise to be able to escape delictual liability due to a lack of intent?
Jest
Clive is a newly appointed doctor at MediTime hospital. On his first shift, Clive negligently chips a patient’s tooth when doing an oral examination. It is unreasonable to compare Clive’s conduct with that of a reasonable person in the position of a seasoned medical professional. As a result, on what grounds may Clive escape liability?
Beginners vs. experts
Jack sees a laptop on the passenger seat of a parked car. In order to steal the laptop, he has to break the passenger side window. Jack smashes the window in order to grab the laptop. Although Jack is criminally liable for theft, he may also be liable for the damage he caused. What is the specific category of fault present in this situation called?
Dolus indirectus
Farren swerves to the right to prevent a truck from colliding head-on with the car that she is driving. She drives right into Frank’s front garden where she does damage to Frank’s garden furniture. On what grounds may Farren escape delictual liability?
Necessity
