Damages

The Law of Delict:
Regulates and determines circumstance of loss;

Allows the burden of the loss to be shifted from one party to
another.;
Imposes an obligation on the guilty party to compensate the
injured party.
A delict is:
Wrongful conduct by one party which causes harm to another. In
order for the injured party to receive compensation for the
loss/damage suffered, he has to prove that the wrongdoer was at
fault.
Essential
elements: Conduct; Wrongfulness; Fault; Causation &
Damage(s).
Basic definition & terminology:
Damage/loss/harm
Damages claim
Damages award
Patrimonial loss (financial loss)

Personal injury (eg. medical expenses)
Damage to property (eg. costs of repair)
Pure economic loss (eg. breach of contract)
Non-patrimonial loss
Harm which cannot be measured in monetary terms eg.
reputation, dignity pain and suffering, etc.
 General v Special damage
Special damage has to be pleaded and established by evidence.
 Delictual v Constitutional damages
If there is effective relief available in private law (delict) the

courts will not necessarily award constitutional damages as
that would amount to double compensation.
Limitations to the scope of damages claimable:

 Loss of income or earnings originating from unlawful activities
(Dhlamini v Protea Assurance)

 Rule also applies to dependants (Santam Insurance v
Ferguson)
 Limitation applies only to loss of income NOT to loss of earning
capacity
Depending on the type of harm suffered the injured party can
bring:
Aquilian Action (Actio Legis Aquilae)
Action for Pain and Suffering
Actio Iniurariam
NB: These are the main/commonly used actions but there are
others which are equally important which we need to take
note of.
Actio de Pauperie Vis major/Force Majeure Nuisance

Actio de Pastu Condictio Furtiva Actio Ad
Exhibendum
Actio Pluvia Acrende Vicarious liability
Once and for all rule; Mitigation of loss rule; and Prospective loss.
NB: Applicability of these depends on the facts and circumstances
of each case but apply to all forms of harm
Once and for all rule

A person has to claim compensation for all damage incurred: past
and future loss, as well as patrimonial and non-patrimonial loss,
in a single action if the harm is based on a single cause of
action.
Cause of action
Single cause theory:(Oslo Land Co Ltd v The Union Government)
Facta probanda approach: Inasmuch as single cause theory is
entrenched in law, recent cases favour facta probanda approach.
(Evins v Shield Insurance)
 Prescription- Section 11 Prescription Act
 An unsuccessful claim does not entitle you to another claim
on the same facts and cause of action
Exceptions to the rule

 Nuisance (eg. Noise, odour, etc.)
 A continuing wrong
 Subsidence cases
 Road Accident Fund claims
NB: RAF is only liable for bodily injury or death.

 Requirements: section 17 of the Act.
 Prescription of claims section 23 of the Act.

Rule: Every plaintiff has a duty to mitigate his/her damage-meaning
Basic principles regarding the rule

 A plaintiff is obliged to take all reasonable steps to limit the damage
 Plaintiff’s can only claim for harm which could not have been reasonably
prevented.
 A plaintiff may also recover damages for any loss suffered or costs
incurred while undertaking those steps.

 The defendant will only be liable to compensate the plaintiff for the
actual loss sustained even if the plaintiff did more than what the law
required him to do.
 The onus of proving that the plaintiff did not properly fulfill his duty to
mitigate lies with the defendant. Macs Maritime Carrier v Keeley

Forwarding
 Shrog v Valentine
 Kellerman v South African Transport Services
Definition: Damage which will, with a sufficient degree of
probability, materialise after the date of the delict and, after the
date of the trial.
Prospective loss consists of: future patrimonial harm (lucrum

cessans)
future pain and suffering
NB: Excluding personality infringements.
Examples of patrimonial loss recognised in practice:

 Loss of earning capacity, future medical expenses,
 future loss of support and future loss of profit.
Why is calculating prospective loss so important? Because of the

implications of the ‘once and for all rule’.
Two pillars: prospective dimension and a present one.
NB: Link between present harm & future loss.
 Onus of proof on a balance of probabilities;

 Prospective loss is subject to a contingency allowance;
 The probability of prospective loss impacts damages
claims.
 Unlikelihood of prospective harm results in a negative
contingency adjustment (ie. decrease the damages award)
 Assessing prospective loss is a speculative exercise by the court.
 Guidelines for calculating prospective loss: Beverly v Mutual &
Federal Insurance.
Beverly case says:
 Court considers: the facts that are known at the date of the trial and
the value of money (the currency) at that time:

NB: It thereafter awards fair and reasonable compensation based on a
consideration of inflation and contingencies.
Inflation
Provision for the depreciation of the value of money.
Contingencies
The plaintiff’s patrimony may be reduced somehow despite the delict.
Court considers that it may be wrong in its calculations.
 NB: There is no fixed formula for making contingency
adjustments.
 Bailey and Burger cases confirm: courts always consider
both positive and negative contingencies.
Calculating loss of earning capacity (of children): Bailey case

Two approaches:
1. The judge may make a round estimate of an amount which
seems fair and equitable (educated guesswork)
2. The judge may make its assessment by means of
mathematical calculations based on the evidence supplied
by the plaintiff (but this is also guesswork)
Assessment of damages in the case of young children is
speculative in the extreme.
Courts consider the following possibilities:

 A child’s earning capacity is based on the parent’s earning
capacity.
 The parents current income is considered in light of inflation
and contingencies.
Damages includes both patrimonial and non patrimonial loss.
Patrimonial loss: Detrimental impact on ones patrimonial
interest.
Non-patrimonial loss: Harm that cannot be measured in
monetary terms
Forms of Patrimonial Loss

Personal injury; damage to property; and Pure economic loss
Direct loss (flows directly from the delict) and Consequential
loss (flows from the direct loss but can be excluded by the
legal causation)
Lucrum Cessans (Loss of profit and/or loss financial
expectancy,) Dumnum Emergence (all other forms of damage)

 When property is destroyed or when one loses an
expectation to gain a benefit: Loss of a
patrimonial element
 When the utility and value of an object or
someone’s earning capacity is reduced:
Reduction of the value of a patrimonial element
 Creation of, the increase of or the acceleration of
a debt/expense.
When assessing damages in delict the aim is always to place
the plaintiff (by way of compensation) in the same financial
position he would have been if the delict had not been
committed. (Erasmus v Davies)
Comparative Methods
Sum Formula Approach:

Current financial position v Hypothetical financial position
Test confirmed and accepted by the SCA in Transnet v
Sechaba Photoscan
NB: Test allows for prospective loss to be included in the

damages calculation.
Concrete Approach:
The difference between the plaintiffs patrimonial position before the
delict and the actual patrimonial position now that the delict has
occurred.
 Neethling & Potgieter suggest that logically it is this approach

that should be followed in delictual cases BUT in cases where
prospective loss is calculated then the sum-formular approach
should be used.
Quantifying damages in instances where there is damage to

property
Focus should be on calculating cost of repairs (Erasmus v Davies)
Proviso: Claim for cost of repairs should not exceed the pre-delict
value of the property.
Recap: the purpose of a damages award is to compensate a
plaintiff for loss suffered NOT to enrich them.
Deductable Benefits:
Benefits received by the plaintiff, as a result of the delict, which
would not have ordinarily accrued to them.
Question: Should the court deduct these from the damages award
to avoid unjustified enrichment?
If the court deducts the benefits will the defendant not gain
unjustly (ie. his liability being partly absolved by a third party)
To deduct or not? No hard an fast rules- issue is determined case-
by-case taking into account what is fair, reasonable and just in
the circumstances (Standard General Insurance v Dugmore)
For practical guidelines pages 239-242 of Neethling & Potgieter
Definition: Detrimental impact on one’s personality interests
deemed worthy of protection by law which does not affect
one’s patrimony but instead reduces the quality or utility of
such interests. (Van der Merwe v RAF)
Recognised interests:
 Pain and Suffering
 Personality Interests (Mostly in term 4-when dealing with
defamation and other specific delicts)
General Principle
 Non-patrimonial loss has both an objective element (the
external manifestation of the harm) and a subjective element

(the plaintiffs subjective reaction to the harm/state of mind)
General Principles
 Prove that the negative experience is linked to the harm
suffered.
 Action for pain and suffering is non-transmitable (Du Bois v
MVA Fund)
Specific Principles:
Actual Pain and Suffering
 A plaintiff may claim compensation for all pain, suffering and
discomfort flowing from the injury suffered as well as the pain

endured during medical intervention and treatment.
 Pain exists only insofar as it is actually experienced.
 The focus of the enquiry is on the plaintiff’s subjective state of
mind.
Loss of Amenities of life
 General discomfort and inconvenience associated with
disability which diminishes the plaintiff’s enjoyment of life.
 Plaintiff must prove that he is prevented from enjoying life
as he previously did.
 Main focus of the enquiry is on the objective element of loss,
the plaintiff’s subjective state of mind play a secondary role.
Disfigurement
 All forms of facial and bodily disfigurement and distortion
including scars, loss of limbs, etc.
 Factors that influence the determination of the award:
gender; age; visibility of the disfigurement; plaintiff’s
appearance prior to the injuries.
Loss of /shortened life expectancy
 Concept requires an objective enquiry.
 The plaintiff’s age and medical evidence are considered
as objective factors.
 A plaintiff is only permitted to claim for the pain and
suffering endured/or that will be endured the remainder
of his life.
Shock
 The consequences of emotional shock may cause further
harm such as anxiety, insomnia, hysteria and other
mental illnesses. Only shock of a serious nature is
considered.
The question to be considered in this section is whether a plaintiff
who has been injured and rendered unconscious or is in a
permanent vegetative state should be allowed to claim under the
Action for Pain and Suffering.
A distinction is made between so-called ‘twilight’ and ‘cabbage’

cases.
 Twighlight: There is still a measure of communication with the
plaintiff. Therefore, ‘twiglight’ plaintiffs can claim but their

damages award will be less than a fully conscious person.
 Cabbage: The plaintiff is in a permanent comatose/vegetative
state.
He may not be able to claim, depending on the circumstances.
Rationale for this distinction is explained through case law.

When dealing with physical and mental injury to an
unconscious plaintiff we have to first distinguish between:
 Actual Pain and Suffering (subjective elements) AND
 Loss of amenities of life; shortened life expectancy; &
disfigurement (which are objective elements) (Southern
Insurance Association v Bailey)
 It is settled in law that an unconscious plaintiff cannot claim

for their actual pain and suffering because they have no
realisation and mental appreciation of pain and suffering.
 It is essential for the plaintiff to experience the pain and
suffering in order to succeed with the claim. (Gerke v Parity
Insurance)
When dealing with loss of amenities of life; shortened life
expectancy; & disfigurement the law is not clear. The answers
differ from province to province.
 Generally, courts adopt an objective approach.
 Reason: Objectively speaking, these amenities are lost whether
the plaintiff is aware of the loss or not. (Reyneke v Mutual and

Federal Insurance).
Courts consider:
Benefit of the Plaintiff v Benefit of the heirs
(Increase award) (Decrease award)
Collins v Administrator Cape reminds us the purpose of delict is

compensate not punish. Therefore an unconscious plaintiff
should have no claim whatsoever for pain and suffering.
Who is entitled to claim? s17(1)
 Those with personal injuries
 Dependents of a deceased victim
 Close relatives of the deceased-for funeral
expenses
What can you claim for?

 Medical expenses, funeral expenses
 Loss of support,
 pain and suffering and disfigurement.

General Principles
 RAF claims are fault based
 Election to claim against RAF or against the
wrongdoer
 Contributory negligence-claim is reduced (RAF
Act read with Apportionment of Damages Act)

Prescription
 From the date of the injury
 From the date of death
Time periods
 Hit & run claims: 2 years to lodge claim with RAF
3 years to issue summons

 Identified claims: 3 years to lodge claim with RAF
2 years to issue summons

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The Law of Delict:

Regulates and determines circumstance of loss;

Patrimonial loss (financial loss)

Damage to property (eg. costs of repair)

Pure economic loss (eg. breach of contract)

If there is effective relief available in private law (delict) the

Limitations to the scope of damages claimable:

(Dhlamini v Protea Assurance)

Action for Pain and Suffering

Actio de Pauperie Vis major/Force Majeure Nuisance

Once and for all rule

Exceptions to the rule

 Road Accident Fund claims

NB: RAF is only liable for bodily injury or death.

 Prescription of claims section 23 of the Act.

Basic principles regarding the rule

incurred while undertaking those steps.

mitigate lies with the defendant. Macs Maritime Carrier v Keeley

Prospective loss consists of: future patrimonial harm (lucrum

Examples of patrimonial loss recognised in practice:

 future loss of support and future loss of profit.

Why is calculating prospective loss so important? Because of the

 Onus of proof on a balance of probabilities;

the value of money (the currency) at that time:

Calculating loss of earning capacity (of children): Bailey case

Courts consider the following possibilities:

Forms of Patrimonial Loss

Direct loss (flows directly from the delict) and Consequential

expectancy,) Dumnum Emergence (all other forms of damage)

Sum Formula Approach:

NB: Test allows for prospective loss to be included in the

 Neethling & Potgieter suggest that logically it is this approach

Quantifying damages in instances where there is damage to

 Personality Interests (Mostly in term 4-when dealing with

defamation and other specific delicts)

external manifestation of the harm) and a subjective element

discomfort flowing from the injury suffered as well as the pain

 The focus of the enquiry is on the plaintiff’s subjective state of

A distinction is made between so-called ‘twilight’ and ‘cabbage’

plaintiff. Therefore, ‘twiglight’ plaintiffs can claim but their

Rationale for this distinction is explained through case law.

 It is settled in law that an unconscious plaintiff cannot claim

 Reason: Objectively speaking, these amenities are lost whether

the plaintiff is aware of the loss or not. (Reyneke v Mutual and

Collins v Administrator Cape reminds us the purpose of delict is

 Dependents of a deceased victim

 Close relatives of the deceased-for funeral

What can you claim for?

 pain and suffering and disfigurement.

 Election to claim against RAF or against the

Act read with Apportionment of Damages Act)

 From the date of death

3 years to issue summons

2 years to issue summons

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