OCTOBER 2023 EXAMINATION ANSWERS - LAW OF DAMAGES LPL4802

QUESTION 1 NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (ESSAY) (a) Study Nemangwela v Road Accident Fund (437/2022) [2023] ZASCA (8 June 2023) case herein attached as well as the Road Accident Fund Act 56 of 1996 as amended and answer the question below: Write a critical appreciation/analysis of the court’s reasoning to disqualify the forklift as a motor vehicle for the purposes of claiming damages from the Road Accident Fund. Refer to the relevant case law and applicable legislation quoted and relied on, in this case. [15] (b) Study Motladile v Minister of Police (414/2022) [2023] ZASCA 94 (12 June 2023) case, herein attached and answer the question below: Evaluate the court’s dismissal of a ‘one size fits all’ approach to quantifying damages/compensation for wrongful arrest and detention. Use case law to support your answer. [10] [25 marks] 4 QUESTION 2 PATRIMONIAL LOSS: BODILY INJURY, DEATH ETC. Read the set of facts below and answer the questions that follow. While driving her BMW X5 2020 model, with registration number AD 54 XX GP, along R556 in Johannesburg, Ms Enne Martins was crashed into by a gas tanker truck belonging to EC Fuels (Pty) Ltd. The driver of the truck was in the wrong and EC Fuels (Pty) Ltd accepted liability. The BMW vehicle was damaged beyond repair. Enne lost the following items in the accident as well; spectacles, wristwatch and two laptops. She also suffered very serious bodily injuries as a result of which, she was admitted in a private hospital for 22 days, and thus missed her work. In terms of the doctors’ reports that she consulted, she had a broken pelvis that needed operation, a broken rib cage and a fractured left femur. It was diagnosed that because of these injuries, she would never regain her pre-accident gait. (a) Which items may not be claimed from the RAF? State the law that supports your answer. [4] (b) State two general damages and two special damages she may recover from the RAF. [4] (c) As per the facts above, Ms Enne was admitted in an expensive private hospital. What are her chances to claim full medical bills, if a provincial hospital could provide similar services? Use case law to support your answer. [7] (d) Ms Enne had recently accepted a better paying job as a Physical Trainer in a local soccer club. Evidence from the physiotherapist suggests that she may not be gainfully engaged in physically straining activities anymore. Discuss her chances of successfully claiming loss of earning capacity. [10] [25 marks] 5 QUESTION 3 COLLATERAL SOURCE RULE (a) Summarise the rules that underlie the principle of subrogation in instances where an insured person claims damages against the wrongdoer. Provide examples for each principle. [10] (b) X, a 35-year-old widow, whose husband was killed in a motor vehicle accident wants to know the prospects of successfully claiming loss of support against the Road Accident Fund. Explain fully, how her rights to claim such damages could be affected by the probability of re-partnership. [15] [25 marks] QUESTION 4 DRAFTING (NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS) Read the facts below and answer the questions that follow. Ms P and Ms Y, both employees at Sunroof (Pty) Ltd had attended an interview at work, for a promotional position. Ms Y was successful in the interview and was ultimately hired into that position. Ms P was convinced that she deserved the job since she was more experienced than Ms Y but felt that because Ms Y had a romantic relationship with the HR manager, she had then been promoted undeservedly. To vent her frustration at missing out on the promotion, Ms P slashed Ms Y’s Mercedes Benz tyres, scratched the body of the vehicle all over and then went onto her X account (formerly Twitter) and slandered Ms Y. Ms Y wants to institute an action against Ms P. Assist Ms Y to draft particulars of claim to a Regional Magistrate Court, where she claims both general and specific damages. In your answer, provide your own times, places, values and other details of the claims. [25] [25 marks] TOTAL FOR THE PAPER: [100 MARKS] UNISA ©