Shruti Singh Delict Tutorial 2013
TUTORIAL 3 [GENERAL DAMAGES QUESTION]
1
Preliminary notes
Practice – preparation is key! There is no correct universal answer to any damages question,
it will all depend on the way in which you argue your point across – what is essential is
persuasive arguments.
Use your checklist given to you by the lectures – see what is applicable or not and see which
facts to be used or not.
Remember there is no model answer – it is all about critical reading and what you read as
being important from the facts and how you argue it. It is all about your ability to argue.
ISSUES
If Lucinda were to institute legal action, on behalf of her children [Rafa and Modiegi], against the
restaurant owner, what compensation would Rafa and Modiegi be entitled to?
- Form of fault: negligence. Therefore, the plaintiffs can only use the Aquillian Action and the
action for pain and suffering.
- Harm suffered by the plaintiffs:
RAFA MODIEGI
PATRIMONIAL Past medical expenses Past medical expenses
Future medical Future medical
expenses expenses
Loss of earning capacity Loss of earning capacity
Damage to [arguable – mitigation
property/costs of repair of loss]
NON-PATRIMONIAL o actual pain and o actual pain and
suffering suffering
o disfigurement o disfigurement
o loss of amenities of life o loss of amenities of life
COLLATERAL BENEFITS medical aid scheme [no medical aid scheme [no
discretion – to be discretion – to be
deducted] deducted]
school donation school donation
[discretion – not [discretion – not
deducted] deducted]
PRINCIPLES
Patrimonial loss is loss that arises when a person’s patrimony is affected in a negative way []financial
loss. Non-patrimonial loss entails all forms of harm which cannot be measured in monetary terms.
Furthermore, one has to use the correct corresponding action for the type of loss suffered.
[Warneke]
, Shruti Singh Delict Tutorial 2013
The purpose of a damages award = for patrimonial loss it is compensation, for non-patrimonial loss it
2
is satisfaction/vindication.
Once and for all rule
According to this rule, a person has to claim compensation for all loss, past and future, patrimonial
and non-patrimonial, in a single action, if the harm is based on a single cause of action.
There are two practical implications of the once and for all rule:
- prescription commences when a cause of action is established [3 years for a delictual claim]
and
- A plaintiff who has already instituted an action cannot institute another action for the rest of
his damages if both actions based on a single cause of action/.
There are two approaches to the concept of the cause of action:
- The single cause approach = every damage-causing event constitutes only one cause of
action irrespective of the nature of the claim.
Emphasis falls on the conduct which causes the damage, not on the damage itself. [Oslo
Land]
The facta probanda approach = the requisites of two or more claims are compared to
establish whether there is a substantial difference in the requisites, despite the possible
overlapping. If there is no substantial difference, the two claims are regarded as falling
within a single cause of action. [Evins]
The facta probanda approach is accepted more in recent cases.
Mitigation of loss
A plaintiff is required to take steps to minimise his loss either reducing the original damage or by
averting further loss.
Where a plaintiff has reduced his loss he can only claim for actual loss suffered. On the other plaintiff
failed to mitigate his loss the he will only be able to claim the loss that would have ensued has he
taken reasonable steps. [Mac Maritime]
Prospective loss
This is loss that will arise after the delict and date of the trial. Furthermore, this type of loss has to be
claimed together with loss already suffered. Considerations such as fairness and reasonableness
based on factors such as inflation, contingencies, and the likelihood of the harm occurring are taken
into account when calculating prospective loss. [Beverley and Burger]
TUTORIAL 3 [GENERAL DAMAGES QUESTION]
1
Preliminary notes
Practice – preparation is key! There is no correct universal answer to any damages question,
it will all depend on the way in which you argue your point across – what is essential is
persuasive arguments.
Use your checklist given to you by the lectures – see what is applicable or not and see which
facts to be used or not.
Remember there is no model answer – it is all about critical reading and what you read as
being important from the facts and how you argue it. It is all about your ability to argue.
ISSUES
If Lucinda were to institute legal action, on behalf of her children [Rafa and Modiegi], against the
restaurant owner, what compensation would Rafa and Modiegi be entitled to?
- Form of fault: negligence. Therefore, the plaintiffs can only use the Aquillian Action and the
action for pain and suffering.
- Harm suffered by the plaintiffs:
RAFA MODIEGI
PATRIMONIAL Past medical expenses Past medical expenses
Future medical Future medical
expenses expenses
Loss of earning capacity Loss of earning capacity
Damage to [arguable – mitigation
property/costs of repair of loss]
NON-PATRIMONIAL o actual pain and o actual pain and
suffering suffering
o disfigurement o disfigurement
o loss of amenities of life o loss of amenities of life
COLLATERAL BENEFITS medical aid scheme [no medical aid scheme [no
discretion – to be discretion – to be
deducted] deducted]
school donation school donation
[discretion – not [discretion – not
deducted] deducted]
PRINCIPLES
Patrimonial loss is loss that arises when a person’s patrimony is affected in a negative way []financial
loss. Non-patrimonial loss entails all forms of harm which cannot be measured in monetary terms.
Furthermore, one has to use the correct corresponding action for the type of loss suffered.
[Warneke]
, Shruti Singh Delict Tutorial 2013
The purpose of a damages award = for patrimonial loss it is compensation, for non-patrimonial loss it
2
is satisfaction/vindication.
Once and for all rule
According to this rule, a person has to claim compensation for all loss, past and future, patrimonial
and non-patrimonial, in a single action, if the harm is based on a single cause of action.
There are two practical implications of the once and for all rule:
- prescription commences when a cause of action is established [3 years for a delictual claim]
and
- A plaintiff who has already instituted an action cannot institute another action for the rest of
his damages if both actions based on a single cause of action/.
There are two approaches to the concept of the cause of action:
- The single cause approach = every damage-causing event constitutes only one cause of
action irrespective of the nature of the claim.
Emphasis falls on the conduct which causes the damage, not on the damage itself. [Oslo
Land]
The facta probanda approach = the requisites of two or more claims are compared to
establish whether there is a substantial difference in the requisites, despite the possible
overlapping. If there is no substantial difference, the two claims are regarded as falling
within a single cause of action. [Evins]
The facta probanda approach is accepted more in recent cases.
Mitigation of loss
A plaintiff is required to take steps to minimise his loss either reducing the original damage or by
averting further loss.
Where a plaintiff has reduced his loss he can only claim for actual loss suffered. On the other plaintiff
failed to mitigate his loss the he will only be able to claim the loss that would have ensued has he
taken reasonable steps. [Mac Maritime]
Prospective loss
This is loss that will arise after the delict and date of the trial. Furthermore, this type of loss has to be
claimed together with loss already suffered. Considerations such as fairness and reasonableness
based on factors such as inflation, contingencies, and the likelihood of the harm occurring are taken
into account when calculating prospective loss. [Beverley and Burger]
