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 & Potgieter for answer, use cases for support

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 being wrongfully arrested and detained by the police. Damages are generally intended to put the injured party in the position they would have been in had the wrongful act not occurred, in terms of financial compensation.

In this case, Mr Nyathi would be able to claim various types of damages, including general damages for pain and suffering, special damages for any financial losses incurred as a result of the wrongful arrest and assault, and possibly punitive or exemplary damages if it can be shown that the police acted maliciously or with gross negligence.

However, the primary aim of damages in this case would be compensatory, rather than punitive. The purpose of compensatory damages is to make the injured party whole again, by providing financial compensation for the harm suffered. Punitive damages, on the other hand, are designed to punish the wrongdoer and deter others from engaging in similar conduct.

In the modern law of damages, the trend has been towards a more compensatory approach, focusing on restoring the injured party to their pre-injury position. While punitive damages can still be awarded in certain circumstances, they are generally reserved for cases where the misconduct was particularly egregious or intentional.

Therefore, while an award of nominal damages could potentially be used to symbolically punish the police for their wrongful actions, the primary focus in this case would likely be on compensating Mr Nyathi for the harm he suffered. The main aim of damages in this case would be to compensate Mr Nyathi for the physical and emotional harm he endured as a result of the wrongful arrest and detention.