Summary
Textbook summary of law of delict
- Course
- Law of Delict (LOD301)
- Institution
- STADIO (STADIO)
These notes refers to the textbook of Oxford Law of Delict in South Africa, 3rd edition.
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Learning Unit 1 - Chapter 1Introduction to the law of delict
The nature of the law of delict
The law of delict forms part of private law and is primarily concerned with the circumstances
in which a person can claim compensation from another for harm that has been suffered.
The Romans classed it as part of the law of obligations, because when a delict has been
committed, someone is obliged to compensate another for the harm that has been suffered.
Loss allocation and corrective justice
The enquiry into whether or not a delict has occurred, is in fact a loss-allocation exercise to
determine whether or not the burden should shift from the plaintiff to the defendant. This
point was emphasised in an earlier edition of Street on Torts:2
Tort is often described as centrally concerned with corrective justice - that is, the
circumstances in which a wronged party is able to obtain recompense or reparation from a
wrongdoer. In consequence, the law of torts is often judged by its success or otherwise as a
compensation system.
Regulatory framework
The law of delict, like all other law, forms part of a regulatory framework for society. Its
purpose is also to set standards of behaviour for human conduct. So, underlying the overt
compensatory regime of delict is a 'hidden agenda': it also serves a normative purpose and it
prescribes a set of ethical rules and principles for social interaction.
Boberg states:
“Law... is a form of social engineering. This is particularly true of the law of delict, which is
close to the core problem of balancing individual freedom against collective security”
Morality and fairness
Underlying delict is a sense of morality and fairness. The law of delict should give substance
to these concepts, and sometimes it requires judges to decide which conflicting moral
principles should be given practical effect when regulating behaviour in society.
As Lord Atkin said in M'Alister (or Donoghue) v Stevenson, possibly the most famous case in
the world:
“The liability for (delict) ... is no doubt based upon a general public sentiment of moral
wrongdoing for which the offender must pay. But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give a right to every person
injured by them to demand relief.... The rule that you are to love your neighbour becomes in
law: You must not injure your neighbour”
The core moral principle upon which the South African system of personal responsibility
rests is that there can be no liability without fault. There is also strict liability (that is, liability
without fault) which expresses a different morality; one in which society determines whether
the nature of the conduct, or the risk associated with the conduct, is such that a person
should compensate anyone who suffers harm as a result.
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,The premise
A famous American judge, Oliver Wendell Holmes, wrote that 'sound policy lets losses lie
where they fall, except where a special reason can be shown for interference'" Our courts
adopt the same principle and when considering whether delictual liability ought to be
imposed, the starting point is always that loss should lie where it falls."
This means that as a general rule, plaintiffs must suffer the infringement of their interests and
bear any financial loss associated with such infringements; unless they can show that there
is a special reason for shifting the burden of making good any loss to someone else. The
special reason for. reallocating the loss arises when a plaintiff proves all the elements of a
delict. These elements are discussed in more detail later in this chapter and in the rest of the
book.
Definitions of a delict
Van der Merwe and Olivier:
A delict is understood to be a wrongful and culpable act that causes another harm or
infringes another's personality interest. Within this realm of the law of delict belong all the
rules that determine the private-law liability of a person who has caused harm or a
personality infringement to another in a wrongful and culpable way.
The functions of the law of delict
According to Cane, the functions of delict 'are those purposes or ends which people seek to
further or achieve through tort law." However, in isolating these purposes, it is worth
remembering that the law is not static and that ideas may fluctuate over time.
- Compensate for harm that has been suffered or an interest that has been infringed
Compensating for harm is the primary, but not the sole function of the law of delict. 19 At the
same time, one should recognise that delict is not a victim's only source of compensation
- insurance, social security and statutory compensation schemes play a similar role - and
one should not over-estimate delict's ability to serve as a compensatory mechanism,
especially since the civil proceedings are cumbersome, time-consuming and costly.° While
compensation in the form of damages may be significant, financial costs are high and only a
small number of people benefit from this system.
- Protect certain interests
Where activities take place in a common space and sometimes compete with one another,
social and business interactions can give rise to tensions. These are usually tolerated, but
where interests are impacted upon, the law offers protection, but only where it is socially
desirable to do so. At first the law protected personal security and personal property, and
particular infringements of personality. In time, as society became more sophisticated and
demanding, and as our ability to understand intangible interests improved, the scope of
protected interests expanded to include:
• Mental health in the form of pain and suffering in relation to physical injury
• Mental health (psychiatric interests) generally
• Business interests, such as goodwill and customer bases
• Interests that are purely economic
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,• Personality interests such as privacy and identity.
- Promote social order and cohesion
Delict promotes social order and cohesion by resolving particular types of disputes, ensuring
justice between the parties, keeping the peace and preventing self-help. Initially, in Roman
law, where the law of delict was seen as a supplement to criminal law, the purpose of delict
was to buy off a victim's vengeance rather than compensate.
Delict has since lost its quasi-criminal function, yet it still aims to vindicate, satisfy and
appease. A delictual remedy, therefore, serves as a type of 'ethical retribution' in some
instances; but one cannot apply such moral vindication where liability is strict, or even in
some instances of negligent conduct where fault is more a statistical inevitability than a form
of 'immoral' behaviour.
- Educate and reinforce values
Delict is a complex mixture of principles of personal responsibility for conduct and outcomes.
So, an important aim of the law of delict is to articulate a set of normative rules of behaviour,
to provide guidance to individuals on how they ought to behave, and to express disapproval
of certain types of conduct.
- Provide socially acceptable compromises between conflicting moral views
There are often a number of morally acceptable approaches to a particular issue, usually
based on different points of departure. One example is the conflict between maintaining a
person's dignity and freedom of expression. The issue in such instances is not to prefer or to
deny either of these moral outcomes, but to resolve each particular conflict by balancing
these rights and freedoms in the circumstances in a socially acceptable way.
- Deter the injurer from behaving similarly in future and to warn and deter others from
behaving in a similar way
While one of the functions of delict is to deter people from behaving in a certain way, the
extent to which delict achieves this objective is open to doubt.
- Reallocate and spread losses
Reallocating losses from victim to injurer is a generally accepted function of delict, but the
idea that delict should also spread losses is controversial, for then neither the victim nor the
wrongdoer would bear the responsibility for the harm if others have to share the
responsibility of repairing it. Nonetheless, there are instances of loss-spreading in the law of
delict.
Delict and insurance
People are able to insure against losses or harm that they might suffer, including loss or
harm caused by a delict. In theory, a victim of a delict who has also taken out indemnity
insurance, has both a delictual action against the wrongdoer and a contractual claim against
the insurer.
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, The insured person will be entitled to both the damages recovered from the wrongdoer and
the proceeds of the insurance claim. However, in the case of indemnity insurance, an
insured person who has instituted a delictual claim against the wrongdoer and succeeded in
recovering damages equal to, or in excess of the insured amount, is obliged, in terms of the
indemnity insurance contract, to repay to the insurer any amount he or she had received
under the contract. This is done to prevent the insured receiving double compensation.
The doctrine of subrogation, which seeks to prevent double compensation and to ensure that
wrongdoers take some form of legal responsibility for the harm they have caused, is also
relevant in this context. In terms of this doctrine, an indemnity insurer may institute a
delictual action against a wrongdoer in the name of the insured person, without cession of
action; provided that the insured person has not claimed damages from the wrongdoer. The
doctrine also entitles an insurer to limit or exclude liability by defending delictual claims in the
name of the insured person.
In Commercial Union Insurance Company of South Africa Ltd v Lotter the Supreme
Court of Appeal described the operation of the doctrine of subrogation as follows:
- It is trite law that an insurer under a contract of indemnity insurance who has satisfied
the claim of the insured is entitled to be placed in the insured's position in respect of
all rights and remedies against other parties which are vested in the insured in
relation to the subject-matter of the insurance. This is by virtue of the doctrine of
subrogation, which is part of our common law.
- The doctrine of subrogation means that insurance companies in fact conduct many
delictual actions ostensibly instituted by the person who suffered harm, or ostensibly
defended by the wrongdoer. In many such cases, a person would not have instituted
delictual action if indemnity insurance did not exist.
Delict and technology
The internet and electronic revolutions have created novel opportunities for people to commit
wrongs against others. There is no statutory provision regulating compensation for harm
caused through the use of electronic media and this begs the question as to whether or not
traditional delictual principles are appropriate for dealing with legal issues associated with
cyberspace.
Courts are increasingly confronted with 'cyber-delicts, where harmful material is found on
websites, Facebook, emails and SMS messages, primarily in the fields of defamation and
invasions of privacy and identity. However, it is only a matter of time before courts are
confronted with patrimonial harm issues such as unfair competition, product liability and for
causing pure economic loss in the cyberspace arena.
Thus far, courts have found the common law sufficiently flexible in dealing with cyber-specific
delicts. In the same way as Roman and Roman-Dutch law evolved to cope with demands
emanating from the industrial revolution, so too has there been no need to deviate from
standard principles in the technological era and courts are still able to perform their loss
reallocation and compensation functions satisfactorily.
In many of the chapters that follow, readers will find examples of how courts have adapted
the law to modern situations while still remaining faithful to delict's historical roots.
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