LPL4802_ LAW_OF_DAMAGES_PORTFOLIO.

LPL4802_ LAW_OF_DAMAGES_PORTFOLIO. Principles of damages a) Heads of damages i. Pain and suffering This head of damages includes all pain, suffering, shock and discomfort, including both physical and mental pain and suffering.1 What is important is the pain actually experienced by the plaintiff irrespective of whether he/she is more or less sensitive than the average person. Thembi sustained injuries from her husband Tim when he allegedly used a golf stick to assault her. As a result, she suffered a broken brow, swollen arms and a fractured left leg. The psychologist put her on antidepressants to suppress her mental trauma. ii. Shock (psychiatric injury) It is usually associated with pain and suffering, but it may also cause further recognized psychiatric consequences such as insomnia, anxiety neuroses, hysteria, depression or other mental or physical conditions which are recognized as nonpatrimonial loss. If emotional shock is only of a short duration and does not have any real impact on the health of the plaintiff, it is usually disregarded.2 Thembi has developed low self-esteem due to the scar on her face and as such she has been put on anti-depressants to suppress her mental trauma. iii. Disfigurement Disfigurement refers to any defacing or mutilation of the plaintiff’s body. Scars, loss of a limb, a limp caused by a leg injury, and distortions of the body are also included. 3 Thembi has a scar on her face which has caused her to have low selfesteem. She also suffered a broken brow, swollen arms and a fractured left leg. 1 P J Visser & J M Potgieter’s Law of Damages 3ed (Juta 2012). 2 Lutzkie v SAR & H 1974 (4) SA 396 (W) [398]. 3 Visser & Portgieter’s Law of Damages. iv. Loss of amenities of life This form of damage is present when a person loses the ability and/or will to participate in general and specific activities of life and to enjoy life as he or she could have done previously. Loss of amenities includes loss already sustained as well as a loss that will probably be experienced in future.4 Thembi has been left with a deformity which will take her normal life away because of the sequelae so left behind by the bone disorders which is a permanent deformity. b) Patrimonial loss between spouses married in community of property Section 29 of the General Law Fourth Amendment Act 132 of 1993 abolished the marital power which the husband could have had over the person and property of his wife. Section 15(1) of Act 88 of 1984 lays down that a spouse married in community of property can perform any juristic act with regard to the joint estate without the consent of the other spouse, except such juristic acts as are specifically excluded by the Act. This section has the effect that both spouses’ capacity to act is restricted equally. However, before 2006 a husband and wife married in community of property could not claim damages for patrimonial loss from each other because damages would have been payable out of the joint estate into the joint estate, a senseless exercise.5 They could only claim damages for non-patrimonial loss. Section 18(b) of the Matrimonial Property Act 88 of 1984 stated that spouses could claim damages from each other for non-patrimonial loss caused by bodily injuries despite the fact that they were married in community of property because in terms of s 18(a) of the Act compensation recoverable for non-patrimonial loss does not fall into the joint estate. 4 Visser & Portgieter’s Law of Damages. 5 Tomlin v London and Lancashire Ins Co Ltd 1962 (2) SA 30 (D) [32–3]. The Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as Amicus Curiae)6 case brought about a change in cases of patrimonial loss between spouses married in community of property. The court held that section 18(b) was unconstitutional since it discriminated against couples married in community of property and had to be amended. It was stated that this section had to be amended to provide that spouses married in community of property are entitled to institute such actions and that such compensation for patrimonial loss does not fall into the joint estate to avoid the senseless result that the amount which the plaintiff takes from the joint estate with one hand, must be returned to the joint estate with the other hand. The amended s 18(b) now allows the innocent spouse to institute an action for compensation for both patrimonial and non-patrimonial loss, flowing from personal (bodily) injuries, against the other spouse. c) Actio iniuriarum for defamation If a spouse married in community of property is delictually liable for damages, such compensation is to be recovered from the defendant’s separate estate, if any, before the plaintiff has recourse to the joint estate. If the joint estate is utilized for this purpose an adjustment in favour of the innocent must take place upon dissolution of the joint estate. However, for reasons of public policy, a husband and wife may not claim satisfaction with the actio iniuriarum from each other.7 Application to the facts Thembi may not use actio iniuriarum against her husband. She will have to use another delictual remedy, for instance, action for pain and suffering. 1.2Joint wrongdoers 6 Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as Amicus Curiae) 2006 (4) SA 230 (CC). 7 Mann v Mann 1918 CPD 89; C v C 1958 (3) SA 547 (SR). a) Where a dependant suffers loss of maintenance as a result of the death or injury of his/her breadwinner and both the breadwinner and a third party are partly liable, the dependant may claim jointly and severally from them.8 This is because the third party and the estate of the deceased are now considered as joint wrongdoers. The dependant may now claim the full amount of damages from either the third party or the estate of the deceased. There is a right of recourse between the two joint wrongdoers, if the dependant claims from either of them the other may claim the difference from the other. 9 Cara can claim from either Billy or the estate of Andrew and the party that which she will sue will have right of recourse against the other party. b) In terms of the Apportionment of Damages Act10 the court may subtract any benefit derived by the dependant under the law of succession from the estate of the deceased person from the estimated value of the deprived maintenance. If the third party has paid this amount of damages to the plaintiff in full, he or she still retains a right of recourse against the estate of the deceased. In regard to this right of recourse, if the court deducts such benefit from the loss of maintenance the prejudiced party may never be deprived of this benefit.11 Cara stands to benefit R300 000 as inheritance from Andrew’s deceased estate and this will be subtracted from the estimated value of the deprived maintenance. • R500 000 (estimated loss of maintenance) minus R300 000 (inheritance) = R200 000. If Cara claims this R200 000 from either Billy or the deceased estate of Andrew as joint wrongdoers, the party which she claims from will have a right of recourse 8 Apportionment of Damages Act 34 of 1956. 9 Coetzer v Multilateral Motor Vehicle Accident Fund [2002] 1 All SA 526 (E). 10 Apportionment of Damages Act 11 Visser & Portgieter’s Law of Damages 293. against the other. Therefore, since from the given facts both Andrew and Billy were 50% liable, they both have to pay R100 000 each to Cara. 1.3Unlawful income a) Where bodily injuries prevent someone from earning money illegally12the law does not allow compensation for the following reasons. The first argument is that there is no wrongfulness as an element of delict because no person has a right to earn income illegally. The second argument is that there is no damage suffered by the plaintiff in such a case.13 The conclusion of these two arguments is that both damage and wrongfulness are absent and thus no compensation. Reinecke14 argues that where a person who is injured loses income from unlawful sources wrongfulness exists because his right to bodily integrity has been infringed. This argument has met criticism. It has been said that it is unconvincing, since conduct may be wrongful with reference to one consequence and lawful with reference to another. Thus the fact that Mandla who has been wrongfully and negligently injured may claim compensation for medical expenses and pain and suffering does not prove that his loss of illegal income has also been caused wrongfully.15 However, there is an exception to the above mentioned arguments. When a person who earns income unlawfully is injured such a person has a claim for the possible impairment of lawful earning capacity because the injuries he/she suffered may cause him/her not only to lose his illegal earnings but also his capacity to earn money lawfully.16 The plaintiff’s impaired potential to have earned income lawfully in future should therefore, be considered.