Mr Nyathi approaches you for legal advice. He was arrested over a weekend for an alleged crime

Question

he committed. He was detained for the entire weekend and released without charges the
following Monday when the police realised that they had arrested the wrong person. He was
severely assaulted during the weekend by others with whom he shared a cell.
Mr Nyathi wants to institute a claim against the police for the harm he suffered.
Explain the primary aim of damages to Mr Nyathi and whether it is directed at compensation or
punishment. Your answer must refer to the types of damages Mr Nyathi will, in principle, be able
to claim, as well as your opinion on whether an award of nominal damages could be used to
punish the perpetrator. Explain your answer with reference to the tendency in the modern law
of damages. refer to Visser and potgiter for answer

Answer 1

The primary aim of damages in this case would be to compensate Mr Nyathi for the harm he suffered as a result of his wrongful arrest and subsequent assault while in police custody. While damages can also serve a punitive purpose in certain cases, the main focus in this situation would be on compensating Mr Nyathi for the physical and emotional harm he endured.

In principle, Mr Nyathi may be able to claim various types of damages, including general damages for pain and suffering, special damages for any specific financial losses incurred as a result of the incident (such as medical expenses or lost wages), and possibly even aggravated damages if it can be shown that the police acted maliciously or with extreme recklessness.

An award of nominal damages, on the other hand, would not be appropriate in this case as it is generally reserved for situations where the plaintiff did not suffer any actual harm, but their legal rights were nonetheless infringed. In Mr Nyathi's case, he clearly suffered physical harm and emotional distress, so an award of nominal damages would not be suitable.

In the modern law of damages, there has been a trend towards placing more emphasis on compensating the injured party for their losses rather than focusing on punitive measures against the wrongdoer. This means that the primary aim of damages in this case would likely be compensation for Mr Nyathi, rather than punishment of the police officers involved. However, if it can be shown that the police acted with malice or gross negligence, additional damages such as aggravated damages may be awarded to reflect this misconduct.

Furthermore, in cases where the wrongdoer is a public authority such as the police, the courts may also consider making an award of exemplary damages as a way to deter similar misconduct in the future. Exemplary damages are intended to punish the defendant and deter others from engaging in similar conduct, but they are awarded only in exceptional circumstances where the defendant's conduct was particularly egregious.

Overall, while the primary aim of damages in this case would be to compensate Mr Nyathi for the harm he suffered, the possibility of additional damages such as aggravated or exemplary damages may be considered depending on the specific circumstances of the case.