LPL4802 PORTFOLIO SUPER SEMESTER 2021

Question 1: General principles of the Law of Damages 1.1. Damage: - This is the diminution of the utility or quality of a patrimonial or personality interest, as a result of a damage causing event. Damages: - These are the monetary equivalent of damage awarded to a person with the object of eliminating past and future damage. 1.2. There are two remedies available for damage caused by Animals, and those are namely: a) Actio de pauperie b) Actio de Pastu a) Actio de pauperie - The prejudiced person may claim damages from the owner of a domestic animal which has caused damage. - Fault on the part of the owner is not a requirement for liability - The defendant must be the owner - “By our law, therefore, the owner of a dog that attacks a person who was lawfully at the place where he was injured, and who neither provoked the attack nor by his negligence contributed to his own injury, is liable, as owner, to make good the resulting damage” ( per Innes CJ in O’Callaghan v Chaplin 1927 AD 310 at 329) 11 LAW OF DAMGES – LPL4802 | PORTFOLIO ASSIGNEMNT: b) Actio de Pastu - Damages are claimed from the owner of an animal which caused loss by eating plants - The defendant must be the owner of the animal when the damage is caused - The animal must cause damage by eating plants - Fault on the part of the prejudiced party constitutes complete defenses against the actio de pastu. Culpable conduct on the part of an outsider does not exclude the actio de pastu 1.3. a) A Contingency is a future event or circumstance which is possible but cannot be predicted with certainty. - Contingencies logically relate to hypothetical causation, since it is involved with other hypothetical causes arising from the same damage. - The concept of Contingency involves the assessment of prospective loss or a part of loss or a factor which may influence the extent of loss. - In principle, one may say that the plaintiff must adduce evidence of contingencies that can increase damages and the defendant of contingencies that may reduce the damage. - And actuary is requires to adduce factually the claim being brought on contingency of future loss. - According to current law, no damages may be recovered for prospective loss on its own. In Coetzee v SAR & H, the court stated: - The cases go only to this extent that if a person sues for accrued damages he must also claim prospective damages, or forfeit them. But I know of no case which goes so far as to say that a person, who has as yet sustained no damage, can sue for damages which may 11 LAW OF DAMGES – LPL4802 | PORTFOLIO ASSIGNEMNT: b) General Application of contingencies - Hulley v Cox 1923 AD 234 defined a contingency as the following: “It is at any rate desirable to test the result of an actuarial calculation by a consideration of the general equities of the case.” - The adjustment for general hazards of life therefore provides the means to blend the scientific (the actuarial calculation) with the equitable (the Judge’s impression of the case) - General contingencies can be relevant at any stage in all people’s lives, to the extent that the court could take a judicial notice thereof without the need of proof, for example early death, illnesses, accidents, retrenchments, etc. - General contingencies deductions are usually on the low side, no more than 20 per cent. - The court should only make general contingency adjustments if it is found that the actuary based his or her calculations on wrong assumptions or if omitted to take the relevant contingency into account.( prescribed book) - Although contingencies cannot be proved on a preponderance of probabilities, it would be In the interest of the plaintiff to present the best possible evidence to the court to rebut any assumption regarding the relevance or the value of relevance of any contingency. - The application of contingencies usually reduces the award and therefore it can be argued that the burden of proving relevance of such contingencies should rest on the defendant, and the burden of increasing such contingencies would rely on the plaintiff - When calculating damages the courts make use of the evidence concerning events from the damage-causing event to the date of the action in order to reach a more realistic assessment of damages. - This approach is correct since facts are of more value than pure speculation - In Sigournay v Gillbanks, it is stated: “Where there has been a change in the situation between the date of the delict and the date of the judgment, this change may affect the amount of damages.” 11 LAW OF DAMGES – LPL4802 | PORTFOLIO ASSIGNEMNT: - Damages (in the sense of both future loss and non-patrimonial loss) is, in the words of Grosskopf JA in SA Eagle Ins Co Ltd v Hartley, artificially laid down by the court. Due to its nature, general damages cannot be proved with mathematical precision, hence the need to take account of all the relevant factors—including events after the delict—which could contribute to making the artificial assessment as realistic and fair as possible. According to Van der Walt, the extent of special damages, on the other hand, can be proved with a far greater degree of accuracy by evidence that is, in principle, available and clear at the time of the delict. Consequently the court’s discretion plays a much smaller role in the calculation of special damages than in the assessment of general damages. This explains why the date of the delict is decisive in the determination of special damages, whereas in the assessment of general damages the courts would take account of changed circumstances after the delict. Another explanation could simply be that the assessment of all damage (general as well as special) takes place at the time of the damage-causing event, whereas for purposes of quantification of the damages to be awarded, all facts and other evidence available at the time of quantification are taken into account. These considerations would include the duty to mitigate loss, the collateral source rule, nominalism, discounting, etc. 1.4. The collateral