Summary LPL4802 - Law Of Damages. Latest Exam Notes.

LPL4802 - Law Of Damages. Latest Exam Notes. MEANING OF THE CONCEPT “DAMAGE” There is no single, uniform definition of the concept damage, the PT describes it as “the diminution, as a result of a damage-casing event, in the utility or quality of patrimonial or personality interest in satisfying the legally recognized needs of the person involved”. It is crucial that you understand the different elements of damage as outlined in your PT. The concept damage (damnum), may be traced back to the Roman lex Aquilia in 287 BC. It has developed over the years and is used in a number of legal fields in South Africa today, such as the law of delict; contract; insurance; enrichment, and many others. It has also been described as the difference between the present patrimony of the plaintiff and the patrimonial position which could have been present had there been no damage-causing event. This definition overlooks the fact that in South Africa, our courts accept a wide concept of damage which includes patrimonial and non-patrimonial loss. The PT examines the differences between patrimonial and non-patrimonial loss. A discussion on damage and wrongfulness sets the scene for an understanding of the relationship between these two important concepts. Because it is accepted that damage in a sense reduces legally recognised interests, it, therefore, follows that illegally obtained patrimony cannot be protected by the law of damages. Damage is not dependent on the fault, or blameworthiness of the defendant. However, where contributory negligence is raised, the fault of the plaintiff and joint wrongdoers is considered. ACTIVITY 2.1 2.1.1 Indicate the differences between patrimonial and non-patrimonial loss. 2.1.2 Is there a relationship between damage and fault? Discuss. The PT provides a very clear distinction between patrimonial loss and non-patrimonial loss. Basically, the first is easily convertible to money and does have a pecuniary effect on the estate of the plaintiff, whereas, the other has no direct effect on the estate of the plaintiff and may not be converted to monetary loss easily. 2.3 PATRIMONIAL LOSS Read Pages 51-61 of the PT. The authors deal with the concept, patrimonial loss. It manifests itself in the reduction of the utility of the plaintiff’s patrimony. A number of definitions of patrimony are put forward. The authors accept that patrimony entails the positive and negative elements of someone’s estate. This, they argue, is the legal concept of damage. Pages 62-69 of the PT examines ways through which patrimonial loss may be caused and the various approaches to such loss. Activity 2.2 There is support in case law for a subjective approach to determining damages. Explain the arguments in support of the objective approach. You will need to engage with the following cases. Log onto the Unisa library site or the Southern African Legal Information Institute (SAFLII) website at , download the following cases, and read them carefully: Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) Erasmus v Davis 1969 (2) SA 1 (A) Damages are assessed from either an objective or a subjective view. The subjective view looks into the personal circumstances of the plaintiff after the damage-causing event, whereas, the objective approach looks at what could reasonably be expected to be the consequence of a specific damage-causing event. You should further understand that in any event, damages are determined on a case by case analysis. Each case is unique. 2.4 CONCLUSION Patrimonial loss consists in the diminution of a patrimonial interest in satisfying a legally recognised need of the person entitled to such interest. Legal recognition is key, in that a certain loss, which is not legally recognised is not seen as damage to one’s patrimony (stolen property and illegal earnings are not recognised in law and hence may not be compensated). It is our hope that you correctly understood loss of patrimony, reduction in value, creation, and acceleration of debt as ways by which patrimonial loss occurs. Past and future damage as well as pure economic loss form the different forms of loss which are distinguishable from the ways by which loss occurs. This lesson, as pointed out above, prepares you for Lesson 3 which focuses on the assessment of patrimonial loss. 2.5 SELF-ASSESSMENT To test and evaluate your knowledge of this lesson, complete the following self-assessments: 2.5.1. Write a summary of the most important aspects identified in this lesson. 2.5.2 Go back to the lesson outcomes at the beginning of this lesson and check if you have achieved them all. In the event that you did not, we recommend that you re-read this section so as to get a good understanding of this lesson. Make sure you have mastered the key concepts and terms that were listed at the beginning of the lesson. 2.6 REFERENCE JM Potgieter, L Steynberg and TB Floyd Visser & Potgieter Law of Damages 3rd ed (2012) Juta. LESSON 3 NATURE AND ASSESSMENT OF PATRIMONIAL LOSS ASSESSMENT OF PATRIMONIAL LOSS NOTIONAL STUDY HOURS 8 LESSON OUTCOMES At the end of the lesson, students should be able to: explain the use of the comparative method in assessing patrimonial loss in practice discuss the sum-formula approach as a method of determining patrimonial loss evaluate the use of the concrete concept of damage in practice, as a way of assessing damage distinguish between positive and negative interesse analyse specific principles used to measure damage in breach of contract establish, based on facts, when the proper date of assessment of damage may be fixed evaluate the influence of causation and contingencies on the assessment of damage KEY CONCEPTS AND TERMS Read 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. damage-causing event; the sum-formula approach; concrete concept of damage; positive interesse; negative interesse; contingencies. You will need to master them as part of achieving the learning outcomes for this lesson: Refer to the Multilingual Glossary provided under “Additional Resources” on the myUnisa module site as well. 3.1 INTRODUCTION Welcome to Lesson 3 of the law of damages. The main purpose of this lesson is to understand how patrimonial loss is assessed. Once damage or loss has been established, the next step is to actually assess its impact on the plaintiff’s patrimony. This lesson focuses on how to assess or calculate such loss. The correct approach is to assess the impact on one’s patrimony by comparing what is left after the damage-causing event with what could have been but for the damage. This is referred to as the comparative method. Read pages 71-102 of the PT. 3.2 THE USE OF THE COMPARATIVE METHOD TO ASSESS PATRIMONIAL LOSS IN PRACTICE It is now settled that damages in delict and contract are assessed using the comparative method. 3.3 THE SUM-FORMULA APPROACH AS A METHOD OF DETERMINING PATRIMONIAL LOSS The sum-formula approach has been used for years to determine the nature and assessment of patrimonial loss. It essentially compares the present patrimonial loss with what could have been, had there been no damage-causing event. On the other hand, the concrete concept of damage is concerned with the deterioration of a particular part of someone’s patrimony. Even though there is no fundamental difference between negative interessse in delict and positive interesse in contractual damages, there is a clear distinction between positive and negative interesse in contractual damages. You must read and understand the sum-formula approach. This method presupposes that in order to effectively measure the impact of damage, a calculation has to be made to establish by what amount of money someone has to be compensated in order to place him or her in the same position he or she would have been in (hypothetically), had it not been for the delict. 3.4 THE CRITICISM THAT HAS BEEN LEVELLED AGAINST THE SUM-FORMULA APPROACH You should understand the criticism that has been levelled against the sum-formula approach on pages 76-78 of the PT. 3.5 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.