LPL4802 Final Exam Outline: Law of Damages Overview and Key Concepts
This is just what I typed up as I went through the outline. Trying to focus on what most likely will be on the
exam. This is just an outline and is a good start, but will require review and updating as you review.
I have highlighted what was on the exam from what I can remember in blue. GOOD LUCK!
1) Definition, Nature & Scope, Object, Systematics, Sources, History, and Terminology of the Law of
Damages
a. Definition – deals with the content of obligations for the payment of damages and can
generally be classified as part of the law of obligations. 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 and other legal principles providing for
payment of damages.
b. Nature & Scope –
c. Object – rather be seen as the provision of just, logical, and practical rules and principles for
solving problems regarding the determination of damage, damages, and satisfaction.
d. Sources of Claims – delictual remedies; liability without fault and liability based on risk;
legislation; breach of contract (pat loss); contract & realization of risk (insurance contract);
claim based on a right of recourse or adjustment.
e. Roman-Dutch Principles –
i. Interesse is defined in terms of actual loss suffered
ii. Liability for damage includes loss of profits (but the expectation must be certain)
iii. No account of affective or sentimental loss (general objective standard)
iv. Adequate proof of loss should be adduced (actual proof)
v. Favour defendant with low damages where proof doesn’t have high degree of
certainty
vi. Damages may not exceed double the value of the object
vii. No penal function (despite culpable manner)
viii. Amende profitable et honourable replaced actio iniuriarum – recovery of
satisfaction
ix. Damages awarded for pain and suffering
x. Compensatory nature of damages became clear
f. Influence of Bill of Rights –Horizontal and vertical application. Fose v Minister for Safety and
Security – P claimed constitutional damages after alleged torture ans assault by the police. Ct
rejected, damages would be powerful enough. Rejected punitive damages wouldn’t serve as
a deterrent to government but an illusion. But it wasn’t ruled out completely as dicta
indicated that if there was the right case, it could be used if appropriate.
g. Damage is the diminution of the utility or quality of a patrimonial or personality interest, as a
result of damage causing event.
h. Damages are the monetary equivalent of damage awarded to a person with the object of
eliminating past and future damage
2) Concept of Damage
a. FIVE elements of Damage
i. Diminution or reduction – generally measured in a monetary standard
ii. Causal element – factual situation which in law has in fact caused damage
iii. Interest element – patrimonial or personality interest
iv. Normative element – legal norms co-determine the existence and nature of damage
v. Time element – No real definition – but past and future (that which is expected to a
sufficient degree of probability) accounted for
b. Pat v. Non-Pat – pat is directly measured while non-pat is indirectly measured; greater
precision for Pat; can be calculated using objective measures; Non-pat is subjective and
equitable estimate
c. Wrongfulness and damage relationship
d. Fault and Damage – damage can exist independently of intent/negligence
e. Factual Causation and Damage – relevant in damage – causal nexus required
f. Types of Damage and Reimbursement
1
LPL4802 Final Exam Outline: Law of Damages Overview and Key Concepts
, LPL4802 Final Exam Outline: Law of Damages Overview and Key Concepts
i. Illegal earnings are not reimburseable
ii. Maintenance earned illegally – dependant has a right to support
Union Gov v Warneke 1911 – husband may not claim for the loss of comfort and society of his wife who has
been killed… (pg 31) present patrimony of the plaintiff compared to patrimonial position that would presently
have existed if damage causing event had not taken place.
3) The Nature, Causing and forms of Patrimonial Loss
a. Patrimonial Loss – diminution in the utility of a patrimonial interest in satisfying a legally
recognized needs of the person entitled to such interest; loss/reduction in value of a positive
asset in someone’s patrimony or the creation of a negative element of his or her patrimony
i. Historically – “universitas of rights and duties”
ii. Juridical concept – legally recognized relationship between person and object or
interest before one can suffer damage
1. Positive elements –
a. real rights; immaterial property rights; and personal rights
b. Expectations of pat rights/benefits – loss of profit, contractual
right to performance
i. Law must recognize the expectation as worthy of
protection
ii. sufficient degree of probability
iii. must have a monetary value
iv. expectation must not contain illegal element
2. Negative elements –
a. Patrimonial debts – creation of a debt
b. Expectation of pat debt – probability that debt will be created
iii. Cause – loss; reduction; creation of increase of debt; creation/acceleration of debt
b. Forms of Pat Loss
i. Luccrum Cessans and Damnum Emergens – loss of past or future profit and all other
loss and all damage leading suffered up to date of trial
ii. Damage to Property and pure economic loss –
iii. Direct and consequential loss – (consequential = loss profits)
iv. General and Special damages –
1. Delict - legally presumed to flow from the unlawful act; and damage that is
not presumed to be the consequence of the damage-causing event and
must be specially pleaded (depends on circumstances could be something
like biz reputation/loss of profit etc). Special would include pecuniary
expenses and losses up to time of trial.
2. Contract – flow from contract v. special circumstances at conclusion of
contract… . Loss of harvest for failure to fix tractor would be considered
special. Usually too remote and liability will only exist if it was
presumptively foreseen by the parties. Shatz v Kalovyrnus the court
confirmed the contemplation principle or reasonable foreseeability test to
determine contractual liability for special damage (1), but also stated that
the convention principle (presumed agreement between the parties that
damages will be paid in respect of loss of a specific kind) is still part of our
law.
Lockhat’s Estate v North British and Mercantile (1959) – heirs of someone who has been killed may
not claim damages from a wrongdoer on the ground that they would have inherited more had the
deceased lived longer. No legally recognized expectation in this regard. Present discounted value of
someone’s work capacity/earning capacity. Life expectancy considered after accident.
BUT
Pretorius and Ries - both recognize the frustration of the expectation of inheritance.
Adminstrator v Edouard (1990) – negative expectation – parents of a child whose conception or birth
should have been prevented by a doctor in terms of a contract have to provide maintenance for such
child. Expectation of a patrimonial debt is regarded as part of someone’s patrimony here.
4) Assessment of Patrimonial Loss
2
LPL4802 Final Exam Outline: Law of Damages Overview and Key Concepts
This is just what I typed up as I went through the outline. Trying to focus on what most likely will be on the
exam. This is just an outline and is a good start, but will require review and updating as you review.
I have highlighted what was on the exam from what I can remember in blue. GOOD LUCK!
1) Definition, Nature & Scope, Object, Systematics, Sources, History, and Terminology of the Law of
Damages
a. Definition – deals with the content of obligations for the payment of damages and can
generally be classified as part of the law of obligations. 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 and other legal principles providing for
payment of damages.
b. Nature & Scope –
c. Object – rather be seen as the provision of just, logical, and practical rules and principles for
solving problems regarding the determination of damage, damages, and satisfaction.
d. Sources of Claims – delictual remedies; liability without fault and liability based on risk;
legislation; breach of contract (pat loss); contract & realization of risk (insurance contract);
claim based on a right of recourse or adjustment.
e. Roman-Dutch Principles –
i. Interesse is defined in terms of actual loss suffered
ii. Liability for damage includes loss of profits (but the expectation must be certain)
iii. No account of affective or sentimental loss (general objective standard)
iv. Adequate proof of loss should be adduced (actual proof)
v. Favour defendant with low damages where proof doesn’t have high degree of
certainty
vi. Damages may not exceed double the value of the object
vii. No penal function (despite culpable manner)
viii. Amende profitable et honourable replaced actio iniuriarum – recovery of
satisfaction
ix. Damages awarded for pain and suffering
x. Compensatory nature of damages became clear
f. Influence of Bill of Rights –Horizontal and vertical application. Fose v Minister for Safety and
Security – P claimed constitutional damages after alleged torture ans assault by the police. Ct
rejected, damages would be powerful enough. Rejected punitive damages wouldn’t serve as
a deterrent to government but an illusion. But it wasn’t ruled out completely as dicta
indicated that if there was the right case, it could be used if appropriate.
g. Damage is the diminution of the utility or quality of a patrimonial or personality interest, as a
result of damage causing event.
h. Damages are the monetary equivalent of damage awarded to a person with the object of
eliminating past and future damage
2) Concept of Damage
a. FIVE elements of Damage
i. Diminution or reduction – generally measured in a monetary standard
ii. Causal element – factual situation which in law has in fact caused damage
iii. Interest element – patrimonial or personality interest
iv. Normative element – legal norms co-determine the existence and nature of damage
v. Time element – No real definition – but past and future (that which is expected to a
sufficient degree of probability) accounted for
b. Pat v. Non-Pat – pat is directly measured while non-pat is indirectly measured; greater
precision for Pat; can be calculated using objective measures; Non-pat is subjective and
equitable estimate
c. Wrongfulness and damage relationship
d. Fault and Damage – damage can exist independently of intent/negligence
e. Factual Causation and Damage – relevant in damage – causal nexus required
f. Types of Damage and Reimbursement
1
LPL4802 Final Exam Outline: Law of Damages Overview and Key Concepts
, LPL4802 Final Exam Outline: Law of Damages Overview and Key Concepts
i. Illegal earnings are not reimburseable
ii. Maintenance earned illegally – dependant has a right to support
Union Gov v Warneke 1911 – husband may not claim for the loss of comfort and society of his wife who has
been killed… (pg 31) present patrimony of the plaintiff compared to patrimonial position that would presently
have existed if damage causing event had not taken place.
3) The Nature, Causing and forms of Patrimonial Loss
a. Patrimonial Loss – diminution in the utility of a patrimonial interest in satisfying a legally
recognized needs of the person entitled to such interest; loss/reduction in value of a positive
asset in someone’s patrimony or the creation of a negative element of his or her patrimony
i. Historically – “universitas of rights and duties”
ii. Juridical concept – legally recognized relationship between person and object or
interest before one can suffer damage
1. Positive elements –
a. real rights; immaterial property rights; and personal rights
b. Expectations of pat rights/benefits – loss of profit, contractual
right to performance
i. Law must recognize the expectation as worthy of
protection
ii. sufficient degree of probability
iii. must have a monetary value
iv. expectation must not contain illegal element
2. Negative elements –
a. Patrimonial debts – creation of a debt
b. Expectation of pat debt – probability that debt will be created
iii. Cause – loss; reduction; creation of increase of debt; creation/acceleration of debt
b. Forms of Pat Loss
i. Luccrum Cessans and Damnum Emergens – loss of past or future profit and all other
loss and all damage leading suffered up to date of trial
ii. Damage to Property and pure economic loss –
iii. Direct and consequential loss – (consequential = loss profits)
iv. General and Special damages –
1. Delict - legally presumed to flow from the unlawful act; and damage that is
not presumed to be the consequence of the damage-causing event and
must be specially pleaded (depends on circumstances could be something
like biz reputation/loss of profit etc). Special would include pecuniary
expenses and losses up to time of trial.
2. Contract – flow from contract v. special circumstances at conclusion of
contract… . Loss of harvest for failure to fix tractor would be considered
special. Usually too remote and liability will only exist if it was
presumptively foreseen by the parties. Shatz v Kalovyrnus the court
confirmed the contemplation principle or reasonable foreseeability test to
determine contractual liability for special damage (1), but also stated that
the convention principle (presumed agreement between the parties that
damages will be paid in respect of loss of a specific kind) is still part of our
law.
Lockhat’s Estate v North British and Mercantile (1959) – heirs of someone who has been killed may
not claim damages from a wrongdoer on the ground that they would have inherited more had the
deceased lived longer. No legally recognized expectation in this regard. Present discounted value of
someone’s work capacity/earning capacity. Life expectancy considered after accident.
BUT
Pretorius and Ries - both recognize the frustration of the expectation of inheritance.
Adminstrator v Edouard (1990) – negative expectation – parents of a child whose conception or birth
should have been prevented by a doctor in terms of a contract have to provide maintenance for such
child. Expectation of a patrimonial debt is regarded as part of someone’s patrimony here.
4) Assessment of Patrimonial Loss
2
LPL4802 Final Exam Outline: Law of Damages Overview and Key Concepts
