Abstract

South African scholars of the law of delict widely claim that our law contains a “self-standing” or “unique” action for pain and suffering that is separate and distinct from the Aquilian action. This contribution argues against this claim. While the South African law of delict undoubtedly allows a plaintiff who has been caused bodily injury by the defendant’s negligence to recover damages for pain and suffering (in addition to the injury’s patrimonial consequences), these awards are best conceptualised as part of the Aquilian action. Indeed, this was the conceptualisation almost universally adopted by South African authorities before the 1960s and, even today, it corresponds more accurately with our law. It is also the view that is widely adopted in foreign law. This contribution shows that none of the reasons offered in defence of the new South African orthodoxy is convincing. First, while the historical origins of awards for pain and suffering are somewhat unusual, they do not illuminate the correct conceptual classification of such awards. Second, although our judicial precedents hold that claims for pain and suffering, unlike Aquilian claims for patrimonial loss, are intransmissible and incapable of cession, these precedents do not require and should not be interpreted to mean that the two are fundamentally different action-types. Third, there is no sound reason to insist on the separateness of awards for pain and suffering merely because they constitute an exception to the general rule that Aquilian damages compensate patrimonial harm. In the end, the notion that there is a separate “action” for pain and suffering seems to rest on a misguided desire for conceptual neatness, which distorts the basic truth that awards for pain and suffering are coincident with Aquilian liability.