Editing Tort (section)

==Scots and Roman-Dutch law==
{{main|Delict (Scots law)|South African law of delict}}

Both [[Scots law|Scots]] and [[Roman-Dutch law]] are [[Common law|uncodified]], [[Legal doctrine|scholarship]]-driven, and [[Precedent|judge-made]] [[legal system]]s based on [[Roman law]] as historically applied in the [[Netherlands]] and [[Scotland]] during the [[Age of Enlightenment|Enlightenment]]. In both legal systems, when applied in English speaking countries, the term delict is used to refer to tortious liability (unlike, for instance, in Spain where the cognate of the term [[delict]] refers to a criminal offence). Unlike in systems based on civil codes or on the English common law, Scots and Roman-Dutch law operate on broad principles of liability for wrongdoing; there is no exhaustive list of named delicts in either system; if the conduct complained of appears to be wrongful, the law  will afford a remedy even in the absence of precedent pertaining to similar conduct.<ref>Lord Hope of Craighead, 'The Strange Habits of the English', in ''Stair Society Miscellany VI'', (Stair Society, 2009), at 317</ref> In South Africa and neighbouring countries, the Roman-Dutch law of delict is in force, having been preserved after the United Kingdom annexed Dutch settlements in South Africa and spread as neighbouring British colonies adopted South African law via [[reception statute]]s. Roman-Dutch law also forms the basis for the legal system of [[Sri Lanka]].

===Elements of delict===
The elements of a delict as follows:<ref>Van der Walt and Midgley 2005, par. 2.</ref>
The elements of harm and conduct are fact-based inquiries, while causation is part-factual and part-normative, and wrongfulness and fault are entirely normative: that is, value-based, in that they articulate a wider societal policy perspective. Delict is "inherently a flexible set of principles that embody social policy."<ref>Loubser ''et al''. 2009, p. 4.</ref>
# harm sustained by the plaintiff;{{efn|The harm element is 'the cornerstone of the law of delict, and our fundamental point of departure'.<ref>Loubser, ''et al''. 2009, p. 43.</ref> Once the nature of the harm is identified, it is possible to identify the nature of the enquiry and the elements that need to be proven. There is an interplay between the elements of harm and wrongfulness, and a similar interaction between the way in which we determine harm and assess damages. 'For conceptual clarity', suggest the academic authorities, 'it is always important to remember where we are going along the problem-solving route towards the intended destination'.<ref>Loubser, ''et al''. 2009, p. 59.</ref>}}
# conduct on the part of the defendant which is wrongful;{{efn|It is vitally important that the conduct be voluntary. There must be no compulsion, in other words, and it must not be a reflex action. (The person engaging in the conduct must also be ''compos mentis'' or in sound mind and of sober senses, not unconscious or intoxicated, for example. He must be accountable for his actions, having the ability to distinguish between right and wrong, and to act accordingly. Unless this standard of accountability is secured, he will not be accountable for his actions or omissions. There will be no [[South African law of delict#Fault|fault]].) Conduct relates to overt behaviour, so that thoughts, for example, are not delictual. If it is a positive act or commission, it may be either physical or a statement or comment; if an omission—that is, a failure to do or say something—liability arises only in special circumstances. There is no general legal duty to prevent harm.}}
# a causal connection between the conduct and the plaintiff's harm; and
# fault or blameworthiness{{efn|Fault or blameworthiness can encompass both intentionality and negligence}} on the part of the defendant.

===Remedies===
Under the Scots and Roman-Dutch law of delict, there are two main remedies available to plaintiffs:
* the ''[[South African law of delict#Aquilian action|actio legis Aquiliae]]'', or Aquilian action, which relates to patrimonial loss (i.e. economic damages);
* the ''[[South African law of delict#Actio iniuriarum|actio iniuriarum]]'', which relates to injuries to non-patrimonial loss (i.e. non-economic damages);

Protected interests which can give rise to delictual liability can be broadly divided into two categories: patrimonial and non-patrimonial interests. Patrimonial interests are those which pertain to damages to an individual's body or property, which both Scots and Roman-Dutch law approach in the context of the Roman [[Lex Aquilia]]. Non-patrimonial interests include dignitary and personality related interests (e.g. defamation, disfigurement, unjust imprisonment) which cannot be exhaustively listed which are addressed in the context of the Roman [[Actio iniuriarum]], as well as pain and suffering which are addressed under jurisprudence that has developed in modern times. In general; where an individual violates a patrimonial interest, they will incur Aquilian liability; and, where an individual violates a non-patrimonial interest, they will incur liability stemming from the actio iniuriarum. While broadly similar due to their common origin, the nature of the remedies available under contemporary Scots and Roman-Dutch law vary slightly, although the aquilian action and actio iniuriarum are the primary remedies available under both systems. The primary difference between the two remedies is that the aquilian action serves a compensatory function (i.e. providing economic damages to restore the plaintiff to their previous state) while the actio iniuriarum provides for non-economic damages aimed at providing solace to the plaintiff. In Roman-Dutch law (but not in Scots law), there is also a distinct [[South African law of delict#Action for pain and suffering|action for pain and suffering]] relating to pain and suffering and psychiatric injury, which provides for non-economic damages similar to those under the actio iniuriarum. The various delictual actions are not mutually exclusive. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action.<ref>Loubser, ''et al''. 2009, p. 44.</ref>

The elements of liability under the ''actio iniuriarum'' are as follows:
* harm, in the form of a violation of a non-patrimonial interest (one's ''corpus'',{{efn|Infringements of a person's ''corpus'' include assaults, acts of a sexual or indecent nature, and 'wrongful arrest and detention'.}} ''dignitas''{{efn|''Dignitas'' is a generic term meaning 'worthiness, dignity, self-respect', and comprises related concerns like mental tranquillity and privacy. Because it is such a wide concept, its infringement must be serious. Not every insult is humiliating; one must prove ''[https://web.archive.org/web/20121001091945/http://en.wiktionary.org/wiki/contumelia contumelia]''. This includes insult (''[https://web.archive.org/web/20110911024529/http://en.wiktionary.org/wiki/iniuria iniuria]'' in the narrow sense), adultery, loss of consortium, alienation of affection, breach of promise (but only in a humiliating or degrading manner), violation of chastity and femininity (as in the cases of peeping toms, sexual suggestions in letters, indecent exposure, seduction, [[wrongful dismissal]] of an employee in humiliating terms and unwarranted discrimination on grounds of sex, colour or creed).}} and ''fama''{{efn|Infringement of ''fama'' is the impairment of reputation, better known as defamation.}});
* wrongful conduct; and
* intention.

There are five essential elements for liability in terms of the ''[[lex Aquilia|actio legis Aquiliae]]'':
# The [[South African law of delict#Harm or loss|harm]] must take the form of patrimonial loss.
# The [[South African law of delict#Conduct|conduct]] must take the form of a positive act or an omission or statement.
# The conduct must be [[South African law of delict#Wrongfulness or unlawfulness|wrongful]]: that is to say, objectively unreasonable and without lawful justification.<ref>If one has a valid defence, one's conduct is justified, and one has not behaved wrongfully or unlawfully.</ref>
# One must be at [[South African law of delict#Fault|fault]], and one's blameworthiness must take the form of ''dolus'' (intention) or ''culpa'' (negligence). One must, however, be accountable for one's conduct before one can be blameworthy.
# There must be [[South African law of delict#Causation|causation]] both factual and legal. For the former, the conduct must have been a ''sine qua non'' of the loss; for the latter, the link must not be too tenuous.

In Scots law, the aquilian action has developed more expansively and may be invoked as a remedy for both patrimonial and certain types of non-patrimonial loss, particularly with regard to personal injury. By way of a [[legal fiction]], 'personal injury' is treated as (physical) 'damage done', with the net effect that 'the ''actio injuriarum'' root of Scots law infuses the [nominate] delict assault as much as any development of the ''lex Aquilia'''<ref>Brian Pillans, ''Delict: Law and Policy'', (W. Green, 2014) at 140</ref> and wrongdoing that results in physical harm to a person may give rise to both an aquilian action and an actio iniuriarum. Additionally, the modern Scots law pertaining to reparation for negligent wrongdoing is based on the ''lex Aquilia'' and so affords reparation in instances of ''[[Damnum iniuria datum|damnum injuria datum]]'' - literally '''''loss wrongfully caused''''' - with the wrongdoing in such instances generated by the defender's ''culpa'' (i.e., fault). In any instance in which a pursuer (A) has suffered loss at the hands of the wrongful conduct of the defender (B), B is under a legal obligation to make [[reparation (legal)|reparation]]. If B's wrongdoing were intentional in the circumstances, or so reckless that an 'intention' may be constructively inferred (on the basis that ''culpa lata dolo aequiparatur'' - 'gross fault is the same as intentional wrongdoing'), then it follows axiomatically that B will be liable to repair any damage done to A's property, person or economic interest: 'wherever a defender intentionally harms the pursuer - provided the interest harmed is regarded as reparable - the defender incurs delictual liability'.<ref>Joe Thomson, ''A Careworn Case?'' 1996 S.L.T (News) 392, at 393</ref> If the pursuer has suffered loss as the result of the defender's conduct, yet the defender did not intend to harm the pursuer, nor behave so recklessly that intent might be constructively inferred, the pursuer must demonstrate that the defender's conduct was negligent in order to win their case. Negligence can be established, by the pursuer, by demonstrating that the defender owed to them a 'duty of care' which they ultimately breached by failing to live up to the expected [[standard of care]]. If this can be shown, then the pursuer must also establish that the defender's failure to live up to the expected standard of care ultimately [[causation (law)|caused]] the loss (damnum) complained of.

===Defences===
There is a distinction between defences aimed at the wrongfulness element and defences which serve to exclude [[South African law of delict#Fault|fault]]. Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally protected interests is reasonable and therefore lawful. They are practical examples of circumstances justifying a ''prima facie'' infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. They are another expression of the legal convictions of the society.

Consent to injury, or ''[[Volenti non fit injuria]]'', is a full defence; if successful, there is no delict. As a general defence, it can take two forms:
# consent to a specific harmful act of the defendant; and
# assumption of the risk of harm connected with the activity of the defendant.
There are five requirements for the defence of consent:
# capacity;
# knowledge and appreciation of harm; and
# consent, or free and voluntary assumption of risk. In addition,
# the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and
# the consent must not have been revoked.

Necessity is conduct directed at an innocent person as a result of [[duress]] or compulsion, or a threat by a third party or an outside force. [[Private defence]] (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. There is, therefore, an important distinction between the two. In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it? The test is objective. It requires a balancing of the parties' and of society's interests. The role of the person against whom the defensive conduct is directed is an important factor in determining whether defence or necessity is being pled. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. A person acts in "private defence", and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. One therefore cannot invoke the justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. Conduct will be justified as an act in private defence or self-defence if it is
* lawful;
* directed against a wrongdoer; and
* for the protection of the actor's or a third party's interest, which is threatened or attacked by the wrongdoer.
The violence used in defence must not exceed what is reasonably necessary to avert the threatened danger:
* The attack must have constituted a real or imminent infringement of the defendant's rights.
* The attack must have been unlawful.
* The defensive conduct must have been directed at the attacker.
* The defence must have been necessary to protect the threatened interests.
* It must have been reasonable: An act of defence is justified only if it was reasonably necessary for the purpose of protecting the threatened or infringed interest.
An act of necessity may be described as lawful conduct directed against an innocent person for the purpose of protecting an interest of the actor or of a third party (including the innocent person) against a dangerous situation, which may have arisen owing to the wrongful conduct of another or the behaviour of an animal, or through natural forces. Two types of emergency situations may be found:
# those caused by humans; and
# those caused by natural forces.