Editing Tort (section)

===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.