Exam (elaborations)
LPL4802 Assignment 1 Semester 1 2023
- Course
- LPL4802 - Law Of Damages
- Institution
- University Of South Africa
LPL4802 Assignment 1 Semester 1 2023
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LPL4802 Assignment 1Semester 1 2023
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QUESTION 1
The action for Pain and Suffering is distinguishable from the actio legis Aquiliae
and the actio iniuriarum.
Explain fully, these differences, paying particular attention to its origins and
development within the South African Legal System.
The action for Pain and Suffering is distinguishable from the actio legis Aquiliae and the
actio iniuriarum in a number of respects. As a summary, these actions differ in terms of
where they originated from and the heads of damages applicable to the remedies. These
actions are also distinguishable in terms of the individuals that can evoke the action.
In terms of origins, the action for pain and suffering is distinguishable from the actio legis
1 Action of pain and suffering
Aquiliae and the actio iniuriarum in a discrete manner.
originates in Roman-Dutch law whereas actio legis Aquiliae and the actio iniuriarum can
be traced back to Roman Law.2 This means that this action was not available to a Roman
law litigant.3 The action for pain and suffering was available to persons who suffered
negligent bodily injuries.4 Its scope of application under the Roman-Dutch law did not
cover all forms of pain and suffering because it was restricted to “pain, suffering and bodily
disfigurement”.5
The action for pain and suffering is currently recognised as a separate delictual action
and has continued to be developed under the influence of the English Law in
contemporary South African law. 6 A review of case law shows that various claims can
now be actioned under this action. These actions now include loss of amenities of life,
loss of future earnings, mental pain and anguish among other heads of damages. 7 The
1
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 16.
2
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 16.
3
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 16.
4
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 16.
5
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 16.
6
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 16
7
Potgieter, J.M Visser & Potgieter’s Law of Damages 31. Disclaimer
Extreme care has been used to create this document, however the contents are provided “as is”
without any representations or warranties, express or implied. The author assumes no liability as
a result of reliance and use of the contents of this document. This document is to be used for
comparison, research and reference purposes ONLY. No part of this document may be
reproduced, resold or transmitted in any form or by any means.
Downloaded by: nkamogele85 | ngwakoem@gmail.com
Distribution of this document is illegal
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main thrust is that the action for pain and suffering is utilised whenever there is a violation
of one's bodily integrity.8
In contrast to the action for pain and suffering, Actio legis Aquiliae was applied in Roman
law to circumstances in which damage was caused to things (corporeal things).9 Solely it
would be available to an owner of a thing who suffered such injuries as the wounding or
killing of a slave, burning, breaking and destroying of other things. 10 During the Roman
law period, the action was extended to cover all kinds of physical infringements of a
corporeal thing. Not only was this action available to an owner of the thing but it was also
available to other holders of real rights. 11 Bodily injuries could also found action under
actio legis Aquiliae.12
In Roman-Dutch law, actio legis Aquiliae was extended beyond its field of the original
application. It started applying to any form of patrimonial damage resulting from injury to
personality. It also applied further in granting the action to holders of personal rights such
as borrowers and lesses of services of a slave or servant.13
In contemporary South African Law actio legis Aquiliae is applied in all circumstances
were patrimonial damage is suffered. Economic loss is now protected with this action in
these contemporary times something different from its earlier application which required
physical injury to the person or injury to property. All patrimonial loss whether wrongfully
and culpably inflicted is now covered by actio legis aquiliae. Whereas the actio legis
aquiliae was applied and continues to apply to patrimonial loss, a look at actio iniuriarium
paints a different picture. In Roman Law, actio iniuriarium applied to injury to personality.
During this period, the scope of this action was extended to cover non-physical elements
such as good name, privacy (corpus), feelings chastity (fama) and dignity (dignitas). The
8
Potgieter, J.M Visser & Potgieter’s Law of Damages 31.
9
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 8.
10
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 8.
11
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 8.
12
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 9 .
13
Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 9. Disclaimer
Extreme care has been used to create this document, however the contents are provided “as is”
without any representations or warranties, express or implied. The author assumes no liability as
a result of reliance and use of the contents of this document. This document is to be used for
comparison, research and reference purposes ONLY. No part of this document may be
reproduced, resold or transmitted in any form or by any means.
Downloaded by: nkamogele85 | ngwakoem@gmail.com
Distribution of this document is illegal
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