LAW OF DAMAGES STUDY NOTES
QUESTION 2 OF EXAM – TWO SUB-QUESTIONS COUNTING 5 AND 10 MARKS – DEALS
WITH NON – NON-PATRIMONIAL LOSS
TOPIC 1: GENERAL PRINCIPLES OF THE LAW OF DAMAGES
IMPORTANT CASE LAW
• Van der Merwe v Road Accident Fund and Another (Women’s Legal Centre Trust
as Amicus Curiae) 2006 (4) 230 (CC)
• Ngubane v Road Accident Fund 2022 (5) SA 231 (GJ)
CONCEPT OF DAMAGE
• Damage is defined as the diminution, because of the damage-causing event, in the utility
or quality of a patrimonial or personality interest in satisfying the legally recognised
needs of the person involved.
• When perusing this definition, you will notice that there are five elements of the concept
of damage, namely:
(1) the element of diminution or reduction;
(2) the causal element;
(3) the interest element;
(4) the normative element and finally;
(5) the time element
• The object of damages is to restore a person’s patrimony to the position in which he or
she would have been had the damage-causing event not occurred.
• A distinction should be drawn between a patrimonial interest where the reduction can be
measured in money (a qualitative reduction) and non-patrimonial interest where the
reduction in personal and personality interests cannot be measured in money.
• In terms of our law, the concept of damage may include both patrimonial and non-
patrimonial loss. Patrimonial loss includes both actual loss or expenses up to the trial
date (damnum emergens) and loss of past and future profit/all prospective damage
(lucrum cessans)
• The common factor between patrimonial and non-patrimonial loss is that in both the
utility or quality of a legally protected interest is infringed (ie the plaintiff loses something
for which he or she may receive money as compensation)
1
,GENERAL DAMAGES V SPECIAL DAMAGES
GENERAL DAMAGES
• General damage is the damage that can be reasonably foreseen by the parties and falls
within their contemplation.
• The plaintiff must merely prove the extent of his/her damage and not that it was
foreseeable
• When a plaintiff suffers a personal injury, he/she may claim general damages, that is
compensation for losses that cannot be accurately measured in monetary terms. These
include compensation for losses such as pain and suffering, disfigurement, emotional
harm, permanent disability, loss of amenities of life, loss of future earnings (i.e. earning
capacity), shortened life expectancy and loss of support.
SPECIAL DAMAGES
• Special damages are losses that have actually been incurred and can be calculated
mathematically, such as compensation for past medical and hospital expenses and past
loss of earnings
• Special damages must be specifically alleged and claimed and supported by evidence
NON-PATRIMONIAL LOSS – NB!!!
• non-patrimonial loss is the diminution, as the result of a damage-causing event, in the
quality of the highly personal (or personality interests) of an individual in satisfying his or
her legally recognized needs, but which does not affect his or her patrimony
• The damage is determined by comparing the psychological state of the plaintiff before
the damage-causing event with the position thereafter
• Non-patrimonial loss/damage is defined regarding highly personal or personality
interests. Non-patrimonial loss does not cause a diminished state of a person’s
patrimony but is an invasion of his/her personal or personality rights, namely integrity
(corpus), reputation (fama) and dignity (dignitas)
• The following form part of such a highly personal ‘non-patrimony’:
Freedom from pain, emotional shock, psychological injury and physical suffering; the
ability to enjoy the ordinary as well as the particular amenities of life; the aesthetic
interest in having a body which is not disfigured; the ability to live for the full duration of
one’s normally expected lifespan; freedom from any physical infringement of one’s body;
one’s good reputation in the eyes of the community; one’s nonviolated feelings of dignity,
chastity, piety and religion; the interest in the consortium of a spouse; and the
maintenance of one’s privacy and identity. If one of these highly personal interests is
interfered with, the individual suffers from an infringement of a personality right which
could result in non-patrimonial loss
• In a physical violation of the body (highly personal interest) both non-patrimonial and
patrimonial interests are infringed that the injured person experiences pain and suffering
(non-patrimonial loss) and also incurs medical expenses or has the expectation of
incurring such expenses (patrimonial loss)
2
, • Reparation or indemnification of non-patrimonial loss is possible in terms of the actio
iniuriarium, the action for pain and suffering, the actio de pauperie and certain
statutory remedies
• In non-patrimonial loss, the affected interests do not have a direct monetary value
and cannot be ‘naturally’ expressed as a sum of money. This implies that
monetary compensation for non-patrimonial loss cannot literally place the plaintiff
in the position he or she would have been in had the damage-causing event not
occurred.
POSSIBLE EXAM QUESTIONS
NON – PATRIMONIAL LOSS AS A RESULT OF WRONGFUL ARREST
QUESTION:
One evening on his way home from the tavern, K was arrested and detained for 48 hours
by the police. The police alleged that he had stabbed S, who was also at the tavern that
night. However, it later turned out that K was erroneously arrested as it was dark at the
time of the arrest, and the police mistook K for W, who had stabbed S.
Fully advise K whether he may institute a claim for damages against the SAP. Also
explain to him how an assessment for damages will be calculated.
ANSWER:
Based on the scenario provided, K may have grounds to institute a claim for damages against
the South African Police (SAP) for wrongful arrest and detention
• K has a constitutional right to physical freedom.
• A breach of this right will give rise to an action.
• He has been wrongfully arrested and will have an action against SAPS
• The court has a discretion when it awards an amount that will be reasonable under the
circumstances. The court may award solatium for the loss of freedom. Previous
comparable awards may be consulted by the court when it has to decide on an amount.
Certain factors will be considered:
• The circumstances under which the deprivation of freedom took place
• Presence or absence of malicious motive
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QUESTION 2 OF EXAM – TWO SUB-QUESTIONS COUNTING 5 AND 10 MARKS – DEALS
WITH NON – NON-PATRIMONIAL LOSS
TOPIC 1: GENERAL PRINCIPLES OF THE LAW OF DAMAGES
IMPORTANT CASE LAW
• Van der Merwe v Road Accident Fund and Another (Women’s Legal Centre Trust
as Amicus Curiae) 2006 (4) 230 (CC)
• Ngubane v Road Accident Fund 2022 (5) SA 231 (GJ)
CONCEPT OF DAMAGE
• Damage is defined as the diminution, because of the damage-causing event, in the utility
or quality of a patrimonial or personality interest in satisfying the legally recognised
needs of the person involved.
• When perusing this definition, you will notice that there are five elements of the concept
of damage, namely:
(1) the element of diminution or reduction;
(2) the causal element;
(3) the interest element;
(4) the normative element and finally;
(5) the time element
• The object of damages is to restore a person’s patrimony to the position in which he or
she would have been had the damage-causing event not occurred.
• A distinction should be drawn between a patrimonial interest where the reduction can be
measured in money (a qualitative reduction) and non-patrimonial interest where the
reduction in personal and personality interests cannot be measured in money.
• In terms of our law, the concept of damage may include both patrimonial and non-
patrimonial loss. Patrimonial loss includes both actual loss or expenses up to the trial
date (damnum emergens) and loss of past and future profit/all prospective damage
(lucrum cessans)
• The common factor between patrimonial and non-patrimonial loss is that in both the
utility or quality of a legally protected interest is infringed (ie the plaintiff loses something
for which he or she may receive money as compensation)
1
,GENERAL DAMAGES V SPECIAL DAMAGES
GENERAL DAMAGES
• General damage is the damage that can be reasonably foreseen by the parties and falls
within their contemplation.
• The plaintiff must merely prove the extent of his/her damage and not that it was
foreseeable
• When a plaintiff suffers a personal injury, he/she may claim general damages, that is
compensation for losses that cannot be accurately measured in monetary terms. These
include compensation for losses such as pain and suffering, disfigurement, emotional
harm, permanent disability, loss of amenities of life, loss of future earnings (i.e. earning
capacity), shortened life expectancy and loss of support.
SPECIAL DAMAGES
• Special damages are losses that have actually been incurred and can be calculated
mathematically, such as compensation for past medical and hospital expenses and past
loss of earnings
• Special damages must be specifically alleged and claimed and supported by evidence
NON-PATRIMONIAL LOSS – NB!!!
• non-patrimonial loss is the diminution, as the result of a damage-causing event, in the
quality of the highly personal (or personality interests) of an individual in satisfying his or
her legally recognized needs, but which does not affect his or her patrimony
• The damage is determined by comparing the psychological state of the plaintiff before
the damage-causing event with the position thereafter
• Non-patrimonial loss/damage is defined regarding highly personal or personality
interests. Non-patrimonial loss does not cause a diminished state of a person’s
patrimony but is an invasion of his/her personal or personality rights, namely integrity
(corpus), reputation (fama) and dignity (dignitas)
• The following form part of such a highly personal ‘non-patrimony’:
Freedom from pain, emotional shock, psychological injury and physical suffering; the
ability to enjoy the ordinary as well as the particular amenities of life; the aesthetic
interest in having a body which is not disfigured; the ability to live for the full duration of
one’s normally expected lifespan; freedom from any physical infringement of one’s body;
one’s good reputation in the eyes of the community; one’s nonviolated feelings of dignity,
chastity, piety and religion; the interest in the consortium of a spouse; and the
maintenance of one’s privacy and identity. If one of these highly personal interests is
interfered with, the individual suffers from an infringement of a personality right which
could result in non-patrimonial loss
• In a physical violation of the body (highly personal interest) both non-patrimonial and
patrimonial interests are infringed that the injured person experiences pain and suffering
(non-patrimonial loss) and also incurs medical expenses or has the expectation of
incurring such expenses (patrimonial loss)
2
, • Reparation or indemnification of non-patrimonial loss is possible in terms of the actio
iniuriarium, the action for pain and suffering, the actio de pauperie and certain
statutory remedies
• In non-patrimonial loss, the affected interests do not have a direct monetary value
and cannot be ‘naturally’ expressed as a sum of money. This implies that
monetary compensation for non-patrimonial loss cannot literally place the plaintiff
in the position he or she would have been in had the damage-causing event not
occurred.
POSSIBLE EXAM QUESTIONS
NON – PATRIMONIAL LOSS AS A RESULT OF WRONGFUL ARREST
QUESTION:
One evening on his way home from the tavern, K was arrested and detained for 48 hours
by the police. The police alleged that he had stabbed S, who was also at the tavern that
night. However, it later turned out that K was erroneously arrested as it was dark at the
time of the arrest, and the police mistook K for W, who had stabbed S.
Fully advise K whether he may institute a claim for damages against the SAP. Also
explain to him how an assessment for damages will be calculated.
ANSWER:
Based on the scenario provided, K may have grounds to institute a claim for damages against
the South African Police (SAP) for wrongful arrest and detention
• K has a constitutional right to physical freedom.
• A breach of this right will give rise to an action.
• He has been wrongfully arrested and will have an action against SAPS
• The court has a discretion when it awards an amount that will be reasonable under the
circumstances. The court may award solatium for the loss of freedom. Previous
comparable awards may be consulted by the court when it has to decide on an amount.
Certain factors will be considered:
• The circumstances under which the deprivation of freedom took place
• Presence or absence of malicious motive
3
