Law of Damages (LPL4802) Exam Summary Notes 2022.

Law of Damages (LPL4802) Exam Summary Notes. The law of damages is that part of the law which indicates how the existence and extent of damage, as well as the proper amount of damages or satisfaction, are to be determined in the case of delict, breach of contract or some other juristic fact providing for the payment of damages (for instance, legislation or insurance). This subject consists of four main parts the general principles regarding damage and compensation the measure of damages in the law of contract the measure of damages in the law of delict certain procedural and other general matters When contracts are concluded and delicts are committed, the need to compensate damage is often paramount. It follows that an infinite variety of persons may benefit from a working knowledge of the legal principles expounded in this subject. Persons in the legal profession, insurance industry, commerce, banking, advertising, medicine and accounting, are just a small number of those persons who come to mind. Damages How damages are calculated If you suffer injury, loss or damage as a result of someone else's action or failure to act, you may claim damages or compensation from that person (the defendant) if you can prove that he or she committed:  A breach of contract; or  A civil wrong (delict) such as personal injury or defamation. In delict, the law imposes duties on everyone, whereas in contract the parties themselves make their own rules, which are binding on them alone. Generally, damages are aimed at putting you in the same position you would have been in had the breach of contract or civil wrong not occurred. Although most claims for damages are settled without the case going to court, a settlement is usually negotiated on the basis of what a court would be likely to award if it did have to make a ruling. The measure of damages depends on the type of claim: BREACH OF CONTRACT Damages for breach of contract, such as buying and selling, are awarded on the principle that, through payment, the injured party must be placed in the same financial position he or she would have been in had the contract been properly performed. INJURY Generally, damages for injury arising out of delict (civil wrong) denote the difference between the present financial state of the plaintiff and the state he or she would have been in had the delict not taken place. The damages cover actual loss, probable future loss, and compensation for pain and disability. (Seebreach of contract.) DEFAMATION Where the plaintiff's personality has been impaired (as in defamation), compensation damages may be awarded for the resultant insult, indignity and suffering. (See defamation.) General principles Damages are awarded in one lump (monetary) sum; the court cannot order periodic payments to be made. Furthermore, only one award can arise out of a single cause of action. In a damages action, whether for breach of contract or delict, you must claim damages for all damage resulting from the action, the onus being on you to establish on a balance of probabilities both the extent of damage and the amount of damages. This may require you to seek compensation not only for loss already sustained, but also for prospective loss, even if the full extent of your damage has not yet emerged when your case comes to court. Give what evidence is available - and if you can assess your damages financially, substantiate them. If, after giving evidence, you cannot substantiate your claim, the court will assess the damages to the best of its ability. Once damages have been assessed, you cannot claim further compensation for subsequent loss arising from the same cause of action. Mitigation (reduction) of damages You cannot claim damages for loss you could have avoided had you taken the steps a 'reasonable man' would have taken to mitigate (reduce) damages. For example (in contract): if a hotel booking is cancelled, a hotelier can claim for full loss only if it can be shown that reasonable efforts were made to fill the vacant accommodation (unless the contract provides otherwise). If the hotel was full anyway, the hotelier would have no claim, because there would be no loss. Another example (in delict): if you cannot continue working in a particular job because of a disabling injury received through another person's negligence, you would be expected to look for other employment if you are still capable of working. You cannot sit back, do nothing and then claim the full loss of income. At the same time, you do not have a 'duty' towards the defendant in this regard: the general legal principle is that you cannot be the author of your own loss. The defendant must prove that you could - and should - have reduced your loss. If necessary, you can claim any expenses that you incur in taking reasonable steps to minimise your damage. Damages for breach of contract In delict, the law imposes certain duties on everyone, whereas in contract the parties themselves make their own rules, which are binding on them alone. A party who fails to fulfil an undertaking may be ordered to pay damages to the other party for breach of contract. An injured party is entitled to be put in the position he or she would have been in had the contract been properly carried out - whether or not the breach is serious enough to justify cancelling the contract. The damages that can be recovered in an action are the actual monetary loss (damnum emergens) incurred and monetary profit (lucrum cessans) not made. (See breach of contract). Damages for fraud Two types of fraud can give rise to an action for damages:  Fraud that does not lead to a contract, in which case you are entitled to damages for financial loss;  Fraud that induces a contract. In the above instance, you may rescind the contract, especially if the fraud was 'causal', that is, you would not have contracted at all had you known the truth. In such a case you would be entitled to damages that would put you in the same position that you would have been in had you not contracted at all - the same rule as would apply to damages for delict. The amount of damages you would receive if you kept your part of the contract has not yet been cleared up by the courts. The following appears to be the present state of the law: If the fraud was 'incidental' - in other words, if it was of such a nature that you would still have contracted, but on better terms, had you known the truth - you would be awarded the loss caused by the fraud. You might be awarded damages even if the value of the award exceeds what you gave, provided that you would still have been better off had the fraud not taken place. If the case is one of 'causal' fraud, you would obtain your financial loss as damages. Normally this would be the difference in value between what you gave and what you received, but there could also be consequential damages. For instance, if a farmer's cows were infected by new cows bought from a dealer who fraudulently stated they were disease-free, the farmer could claim compensation. Damage to property If your property has been wrongfully damaged or destroyed, damages might be assessed on the basis of the loss in value of the property when it was damaged. In such a case, the cost of repairs may be a suitable reciprocal measure if it is necessary and fair, if it does not exceed the cost of replacement and if it will restore the property to its previous state. Although a claim may also be made for loss of use and profits, the loss must not be too remote - it must be within the foresight of a 'reasonable man'. Also, the person sustaining a loss must take reasonable steps to reduce any damage which may occur. Damages for personal injury In deciding on damages for personal injury, the courts will try to restore you (the claimant) to the financial position you would have been in had the accident not occurred. In this respect, four main factors are usually considered:  The actual expenditure and financial loss incurred in the time between the accident and the trial; EFuture expenses;  Disfigurement, pain and suffering, and the loss of health and enjoyment of life you have suffered and will suffer in future;  Loss of earning capacity. Earnings lost through an accident are calculated from the date of the accident to the court hearing - and this could often be two years or more. Moreover, you will also be awarded damages for loss of possible future earnings if you have been permanently or partly prevented from earning a living. SALARY OF WAGES If you have fixed earnings paid on the usual weekly or monthly basis, your total earnings lost are easily calculated - you will often receive a pension, sick-leave benefits or even wages while you are incapacitated. If these benefits form part of your terms of employment, the courts will take them into account when calculating the amount to be paid by the defendant. Compensation will be increased if the weekly wage or overtime rate for your job has risen since you sustained your injury. Alternatively, the amount of compensation will be reduced if your job would have ended through 'natural causes' such as redundancy - although the court will have to consider that you might have found another job. Compensation is also reduced if you were close to retirement age - a claim for lost earnings is limited to the period you are likely to have continued to work. Savings arising from not working - for example, a cut in travelling expenses - may reduce the damages. But a loss of privileges - cheap meals, for instance - increases them. Generally, you are entitled to full pay for the time you are off work - and if you return to your post before the trial, but lose earnings because your disability prevents you from doing your previous job, you may also be compensated for this. SELF-EMPLOYED If you are self-employed - for example, if you are a partner in a firm, or a working director of a company - you must show that the firm's probable profits have been reduced because of your inability to work and that, as a result, you yourself have lost money. DEDUCTIONS If you have received compensation after an accident at work or as a result of an occupational disease under the Compensation for Occupational Injuries and Diseases Act, 1993 (the successor to the Workmen's Compensation Act), this amount may be deducted from an award of damages. Any benefit that you may receive from an insurance policy for which you pay all or part of the premium cannot be deducted from your claim unless the defendant has contributed to payment of the premium. ADDITIONAL EXPENSES You can claim the costs of visits to hospital by your spouse or children if you can show that their presence helped you to recover. The costs of visits of a parent to a child in hospital may also be recovered if the child usually lives at home. The cost of private treatment, prescriptions, nursing homes, convalescent homes or holidays can be claimed if they are undertaken on medical advice. FUTURE FINANCIAL LOSS In serious cases, claims will not usually be settled for at least two years after an accident - to allow the condition of the plaintiff to stabilise and to enable an estimate of future losses and expenses to be made from the size of the amount already lost. A claimant who as a result of the injury has had to take a job at a lower wage or salary can claim compensation for the estimated future loss in earnings. Probable future medical expenses directly caused by the accident can also be added. If injuries permanently impair your ability to earn a living, you can claim for your reduced earning capacity; however, if your expectation of life has been shortened, your claim for earnings lost in this way may well be unsuccessful - on the grounds that you would not be there to collect them. However, this difficult point of law has not been finalised. In calculating such an award, the courts will try to arrive at a sum currently payable which, when invested, will give the claimant a periodic payment. This would make up the difference between your reduced wage and your earnings had you not been disabled. The present value of what you would have earned were it not for the disability is calculated, and from this is deducted the present value of your estimated actual future income. This figure is then adjusted in the light of other relevant factors. With regard to compensation for pain and disability, a court may consider:  Pain and suffering;  Disfigurement;  Loss of enjoyment of life and of general health; and  Future medical and hospital expenses. Quick Tip - A Dependant's Action A dependant - for example, a widow or dependant child - can claim against anyone who, through delict, caused the death of the breadwinner. The measure of this loss is, essentially, the difference between the position of the dependant now and what it would have been had the breadwinner not died. This calculation, however, may prove to be extremely complex. In general, direct benefits going to the dependant, such as an inheritance, are deducted, but the Assessment of Damages Act, 1969, states that no account may be taken of insurance money, pension or benefits that will be paid because of the death. The determination of damages will also have to consider a widow's or widower's prospect of remarriage. Damages as a result of strikes or lock-outs The Labour Relations Act, 1995, protects certain strikes and lock-outs as reasonable exercises of bargaining power. Employees who participate in a protected strike and employers who embark on a protected lock-out do not commit a delict or breach of contract. civil proceedings may not be instituted against any person for partici-pating in such an action, even if the act is an offence under the Basic Conditions of Employment Act or the Wage Act. Claims for damages may be lodged in the Labour Court only if the strike or lock-out is not protected. (See strikes.) How much can you expect In a case decided some years ago, a labourer who was paralysed from the waist down was awarded R69000 in damages. The award was divided into two: A sum of R35000 was agreed upon for general loss of amenities, enjoyment of life and permanent disability. These are called 'general' damages. The balance of R34000 made up the labourer's loss of earnings, his future loss of earnings and his past and future medical expenses - these are called 'special' damages. It is this latter part of damages that can vary significantly; for instance, a doctor has a higher earning capacity than a labourer and would therefore be able to claim a higher loss of earnings. Other examples of amounts for 'general' damages include: Paralysis from the neck down - approximately R60000 to R90000 Loss of an arm - R15000 to R20000 Loss of a leg - R20000 to R25000 These amounts will obviously change with the rate of inflation. They are simply for 'general' damages and do not include 'special' damages for loss of earnings and medical expenses. Damages after a fatal accident In terms of South African law it is possible to institute four different legal actions for damages arising out of a fatal accident: 1. Dependants can claim for loss of financial support. 2. The executorI, acting on behalf of the deceased's estate, can claim damages for pain and suffering caused to the deceased, if proceedings had already been instituted by him or her. (See estate, deceased.) 3. Funeral expenses can be claimed. 4. Medical and hospital expenses prior to death can be claimed. To be successful, the claimant must prove that the defendant was wholly or partially responsible for the death. In most cases death as a result of a road accident will be covered by the Multilateral Motor Vehicle Accidents Fund (mmf). However, if the fatality occurred at work, or while the deceased was travelling on official business, the provisions of the Compensation for Occupational Injuries and Diseases Act may be applicable. In such cases the claimant can be reasonably sure that compensation is available. A claim for loss of support arises when the deceased was under a legal duty to support a dependant. In this respect, the claimant must establish two key factors:  That a legal duty (not merely a contractual one) existed; and  That financial loss was caused by the death of the breadwinner. If the plaintiff is the widow or minor child of the deceased, the law infers a legal duty of support. If the plaintiff is, say, a parent suing for the death of a child, the matter becomes more complicated. If, for example, a mother wants to sue, in order for her to be successful she would have to prove that she was, or would become, needy, and that had death not occurred, the child would have been in a position to support her and, would in fact have supported her - factors that are not easy to establish, and more difficult to prove if the child was very young. Damages for loss of support are based on financial loss resulting from the breadwinner's death. Compensation for non-material loss such as grief and depression cannot be claimed. The crucial factor is the difference between the dependant's financial position since losing the breadwinner and the position the dependant could reasonably have been expected to enjoy had the deceased continued to live. To calculate the claim, benefits from the estate must be deducted from the final award - although it must be noted that parliament has ruled that insurance and pension benefits resulting from the death cannot be deducted from the award. Damages are calculated according to the period the dependant would have received support from the deceased, the deceased's net annual income over that period and the proportion of the income that would have been used to support the dependant. An annuity is calculated on the basis that the dependant will receive the same income which would have been received had the breadwinner lived and for as long as he or she would normally have supported the dependant. The court also takes other factors that could affect the amount of the award into account - for example:  Inheritance benefits;  In the case of a widow, her prospect of remarrying; and  In the case of a widow, her age, number of dependent children, appearance and personality. A widow's earning capacity will not reduce the award; the courts have held that since she has lost her major source of support she is not obliged to reduce her loss by supporting herself. (See dependant.) The right to any action resulting from a deceased's pain and suffering does not generally pass on to the beneficiaries of the deceased's estate. Such claims are personal in nature and an award is intended for the personal benefit of the deceased, not for the dependants. The exception applies if such an action is instituted prior to death, and death occurs after the matter has advanced to a dispute in court. The estate is also entitled to claim expenses incurred in paying for the deceased's funeral and burial. Beneficiaries of the estate may claim for expenses prior to death, such as medical and hospital expenses and loss of earnings while the deceased was in hospital. Note, however, that such claims do not arise directly from the death, but from injuries suffered by the deceased before death and which ultimately caused death. Damages for defamation All statements, written or spoken about you, which diminish your reputation in the eyes of right-thinking people, and which were made with that intention, will give you grounds for an action for damages for defamation. Damages are calculated on the basis of the harm done to your reputation. You do not have to prove any actual loss. Nor is there any type of scale for such damages. The assessment will depend largely on the view of the judge, (see judge), who is guided by previous awards in similar cases, and numerous factors, such as:  Malice and the nature and extent of the publication;  Whether an adequate apology has been offered or not; and  Rank or social or professional status of the party whose reputation was allegedly damaged. Other civil wrongs INVASION OF DIGNITY (as opposed to reputation, which is defamation). Damages for, say, spying on a woman undressing, or refusing to allow a person to take up a hotel booking, or an invasion of a person's privacy, are generally calculated on the same basis as for defamation. SEDUCTION Damages are awarded for the loss of virginity and prospects of a suitable marriage (and also for actual loss, such as may be occasioned by the birth and care of a child). ADULTARY Damages are based on the invasion of the plaintiff's dignity and marriage (aggravating and mitigating factors are taken into account). WRONGFUL ARREST AND IMPRISONMENT The same rule applies in cases involving malicious prosecution, wrongful arrest and imprisonment. UNLAWFUL INTERFERENCE WITH BUSINESS OR TRADE, OR THE CONTRACTUAL RELATIONS OF THE PLAINTIFF Damages should restore the plaintiff to the financial condition he or she enjoyed prior to the delict. INFRINGEMENT OF A PATENT RIGHT The profit made by the defendant may be claimed. BREACH OF COPYRIGHT In terms of the Copyright Act, 1978, special rules govern damages following an action for breach of copyright. (See copyright.) Case History - Suing for damages A recent claim for damages as a result of an erring husband's adulterous relationship was successful on the part of the plaintiff (the estranged wife). Action was instituted against the husband (the first defendant) and at the same time, against the woman (the second defendant) with whom he had had an affair.  The court ruled in favour of the plaintiff, citing that marriage remains the cornerstone of our society and that the plaintiff suffered, experiencing the disintegration of her marriage, hostility of her husband and hurt and humiliation. This conscious desecration of the marriage relationship meant that the second defendant had to pay damages of R20000 and the cost of the plaintiff's suit. (Van der Westhuizen v Van der Westhuizen and Another, 1996) Originally published by and copyright © 1997, 1992 - The Reader's Digest Association South Africa (Pty) Ltd, Cape Town. All rights reserved. Management and editing of articles by Legal City CC, additional copyright © Disclaimer :: You and Your Rights Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein. South African law of delict From Wikipedia, the free encyclopedia Jump to: navigation, search The South African law of delict engages primarily with "the circumstances in which one person can claim compensation from another for harm that has been suffered."[1] JC Van der Walt and Rob Midgley define a delict "in general terms [...] as a civil wrong," and more narrowly as "wrongful and blameworthy conduct which causes harm to a person."[2] Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor. [3] The delictual inquiry "is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict."[4] The classic remedy for a delict is compensation: a claim of damages for the harm caused. If this harm takes the form of patrimonial loss, one uses the Aquilian action; if pain and suffering associated with bodily injury, a separate action arises, similar to the Aquilian action but of Germanic origin; finally, if the harm takes the form of injury to a personality interest (an injuria), the claim is made in terms of the actio injuriarum. Contents [hide]  1 Sources  2 Damages  3 Liability  4 Element