LPL4802_ Law Of Damages_ EXAM NOTES AND SUMMARY.

LPL4802_ Law Of Damages_ EXAM NOTES AND SUMMARY. MEASURING DAMAGE USING THE COMPARATIVE APPROACH AND INCORPORATING THE USE OF THE CONCRETE CONCEPT OF DAMAGE The ideal approach to measuring damage would be to use aspects of the comparative approach and also incorporate aspects of the concrete concept of damage, which measures the diminution or deterioration of a particular part of someone’s patrimony as a result of the damagecausing event. In view of assessing the impact of the delict on patrimony, negative interesse is at issue, whereas in calculating contractual damages, positive interesse takes centre stage. You must study and fully understand the differences between these two mutually exclusive concepts especially when measuring contractual damages. The measure of contractual damages is fundamentally unique in the sense that it takes into account various interests that the victim of a breach of contract has, to claim from the defendant. You have to study and understand these concepts fully. 3.6 SPECIFIC PRINCIPLES USED TO MEASURE DAMAGE IN BREACH OF CONTRACT We have already pointed out that positive interesse is used to assess damage in the case of breach of contract. You should further understand a few other specific principles that are incorporated into the assessment of damages, called interests. However, in instances where a contract is cancelled by one party before it takes effect, there is reason to believe that negative interesse is applied. Read case law and legal opinion on this matter. The prevailing view is that negative interesse must be considered in instances where it is difficult to produce direct evidence of positive interesse of the plaintiff. 3.7 PROPER DATE FOR THE ASSESSMENT OF DAMAGE There lingers a question in litigants’ minds as to when the proper date for the assessment of damage commences, once the damage has occurred. It is critical that the date must be established so that the plaintiff receives the fullest possible compensation for the damage sustained. It must be at the latest stage of the lawsuit where most, if not all, the evidence of damage has been submitted to the court. The assessment of damage does not only deal with damnum emergens but also focuses on lucrum cessans. You are expected to analyse the different dates that have been put forward in both case law and legal opinion, in order to establish what is the best time to assess damage. 3.8 THE INFLUENCE OF CAUSATION, HYPOTHETICAL CAUSATION AND CONTINGENCIES IN THE ASSESSMENT OF DAMAGE The last part of this lesson deals with the influence of causation, hypothetical causation, and contingencies in the assessment of damage. Causation entails what effectively causes damage to one’s patrimony. In delict, it is the act that causes the deterioration or reduction in value and utility of a particular part of the plaintiff’s patrimony. Various views are discussed on pages 94-96 of the PT. The ultimate conclusion is that damage is inseparable from causation. One cannot think away one without the other disappearing and the establishment of one element necessarily leads to the establishment of another. Read the examples in Chapter 4, paragraph 4.6.2 of the PT in order to get a clearer view of this phenomenon. A plaintiff may have a pre-existing condition that makes him or her more susceptible to injury and the damage that occurs is then more extensive. In these cases, the so-called “thin skull” rule or the “take your victim as you find him” rule applies. According to this rule, the defendant is liable for all the damage that occurs even though the damage is now more extensive because of the pre-existing condition. The effect of this rule is, however, tempered if it can be shown that the plaintiff would have, later on, in any event, shown symptoms of the pre-existing condition. In such instances, the courts will apply a contingency deduction that favours the defendant. Take note of the impact of supervening events in the assessment of damage. A fair and just approach must be considered so as not to unnecessarily prejudice the plaintiff (see pages 99-100 of the PT). Also take note of the possible application of hypothetical causation, and the juridical assessment of damage where hypothetical causation is established. Closely related to hypothetical causation is the concept of past and future contingencies. These are likely events post the damagecausing event. Future contingencies are applied in the assessment of lucrum cessans. Activity 3.1 When is the best possible date for the determination of damage? Discuss fully. Consider important cases such as General Accident Ins Co SA Ltd v Summers 1987 (3) SA 577 (A). Read also footnote 151 on page 92 of the PT. Generally, damage is assessed as at the date of the wrong. However, some damage manifests itself at a later stage. It is correct to assess damage at any time when all facts have come to light, related to the extent of the damage caused by a single damage-causing event. Read pages 93-102 of the PT. A number of events happen between the date of the delict and the judgment date. Further, there could be other pre-morbidities that affected the plaintiff prior to the damage-causing event. Such events are factored into the assessment of damages as contingencies. It is crucial to realise that these contingencies are not always negative events. Activity 3.2 Consider the following scenario and answer the question. Read also AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A) X, an unemployed 35-year-old male, is involved in a motor vehicle accident and fractures his right leg. Doctors reveal that it has to be amputated. In a claim for loss of earning capacity, which past and future contingencies may the court consider? In your answer, consider the evidence that comes to light with regard to the plaintiff’s professional and social conduct before the damage-causing event. This activity tested your understanding of the application of the past and future contingencies in the assessment of lucrum cessans and other future forms of damage. Indeed, issues very personal and specific to the plaintiff that come to light during the trial, which issues have either a negative or positive impact on his claims would be considered. 3.9 CONCLUSION The assessment of patrimonial loss is not a straightforward process. As already shown, a number of skills from various disciplines have to be employed to assist the court to make a fair and just determination of the value of damage in each case. A number of juridical considerations also form part of the matrix that is the assessment of patrimonial damage. It is crucial that you understand the theory behind all these scientific and juridical considerations so that you gain a better understanding of the approach to the computation of damages in practice. We hope that you understood this part of the law of damages. Our next lesson focuses on the nature and assessment of non-patrimonial loss. It must be very interesting, considering what you already know from this chapter. Most of these concepts, as you will find out, are interrelated. 3.10 SELF-ASSESSMENT To test and evaluate your knowledge of this lesson, complete the following self-assessment: 3.10.1 Write a summary of the lesson where you refer to relevant sections of the PT, case law, and legal opinion, in order to establish your understanding of what was learnt. 3.10.2 Go back to the lesson outcomes at the beginning of the lesson and check if you have achieved them. In the event that you did not, we advise you to re-read this section so as to get a good understanding of this lesson. 3.10.3 Make sure you have mastered the key concepts and terms that were listed at the start of the Lesson. 3.11 REFERENCES JM Potgieter, L Steynberg and TB Floyd Visser & Potgieter Law of Damages 3rd ed (2012) Juta. LESSON 4 NATURE AND ASSESSMENT OF NONPATRIMONIAL LOSS NOTIONAL STUDY HOURS 9 LESSON OUTCOMES By the end of the lesson, students should be able to: define non-patrimonial loss and explain its importance as part of the concept of damage discuss the relationship between patrimony and personality interests Identify various forms of non-patrimonial loss caused by the infringement of physical-mental interests discuss the theories on the nature of non-patrimonial loss caused by the injury or impairment to the physical-mental integrity of the plaintiff assess the injury to personality in cases of iniuria affecting the body further identify and explain the criteria used to measure loss suffered as a result of defamation, insult to dignity, and infringement of other personality rights Lesson 4 will require approximately nine hours. KEY CONCEPTS AND TERMS Use the textbook and other credible sources to compile the meaning of the following key concepts and terms that would be used in the study of the law damages from now until the end of the semester. It is important that you study these terms extensively, as their knowledge and use imply a better understanding of this field of the law. You will need to master the following key terms as part of achieving the learning outcomes for this lesson: Refer to the Multilingual Glossary provided under “Additional Resources” on the myUnisa module site. non-patrimonial loss; general damages; personality interests; actio iniuriarum; damnum emergens; lucrum cesans; solatium. 4.1 INTRODUCTION Welcome back. This lesson is primarily concerned with the nature and assessment of non-patrimonial loss. The concept of non-patrimonial loss is sometimes referred to as immaterial damage, injury to personality, or simply non-pecuniary loss. The injury does not directly affect one’s patrimony. It consists of the diminution, as a result of a damage-causing event, in the quality of a personality interest of the plaintiff in satisfying his or her legally recognised needs.