notes of delict claims

Chapter 6


Compensatory function
2 forms:
1) Compensation for damage= two eliminate as fully as possible his past and future
patrimonial loss, money is equivalent of damage.
2) Satisfaction= damage is incapable of being compensated, money can not be true
equivalent of impaired interests


Concept of damage:
 Damage is the detrimental impact upon any patrimonial or personality interest
deemed worthy of protection by the law.
 It includes both compensation and satisfaction
 Some losses cannot be claimed because of policy considerations
 De Vos v SA Eagle Versekeringsmaatskappy Bpk.


Patrimonial and non-patrimonial loss
 Authors differ in opinion,
 But accept that damage has a broad concept and thereby includes;
 Patrimonial and non-patrimonial loss.


Relationship between patrimonial and non-patrimonial loss
 No clearly defined line
 Similarity; utility; quality of an interest protected by law is infringed, plaintiff
loses something for which he receives money


There are four (4) differences:
i. Patrimonial loss= directly/ naturally expressed in money while non-pecuniary
loss= indirect measurable ito money


ii. Extent of patrimonial loss can be ascertained with precision than extent of non-
patrimonial loss

,iii. Damages for patrimonial loss= true reflection of impaired patrimonial interest
and damage is equivalent to money.
 Non-patrimonial loss= no true relationship between money and injury to
personality


iv. Patrimonial loss= utility of patrimonial interest reduced while interest of non-
patrimonial loss is subject of reduction in non-pecuniary damage


The relationship between damage and wrongfulness
 Usually, act only wrongful if it has caused a harmful consequence
 But damage can be caused without a wrongful act


Relationship between damage and factual causation


 Causation is determined with reference to a consequence (damage)
 There can be an overlapping between the tests employed for causation & damage,
because;
 In order to determine causation the alleged damage-causing event must be
connected with a particular consequence.
 Patrimonial (pecuniary) loss
 Patrimonial loss is the detrimental impact of any patrimonial interest deemed
worthy of protection by law.
 It is the loss or reduction in value of a positive asset in someones patrimony or
creation/ increase of a negative element of such patrimony.
 Union Government (minister of Railways & Harbours) v Warneke: Patrimony is a
universitas of rights and duties
 Patrimonial elements:
 Positive elements> monetary value determined by market value of object and any
limitations eg. Real rights; immaterial property rights; personal rights
 Negative element> eg. debt; expectation of a debt

,Ways in which patrimonial loss is caused:
 loss of a patrimonial element
 Reduction in value of patrimonial element= Rudman v Road Accident Fund> bodily
injuries alone are not sufficient to constitute loss of earning capacity
 Creation/ increase of a debt/creation, acceleration of an expectation of a debt


Forms of patrimonial loss
Lucrum cessans - loss of profit/ prospective loss & loss of patrimonial expectancy;
&
En damnum emergens - all other forms of damage suffered up to date of trial
Damage to property (that belongs to you) & pure economic loss
Direct and consequential loss


1. Assessment of patrimonial damages (2 formulas)
1. Sum-formula approach
 Used cause of once and for all rule- speculative future
 Damage consists in the negative difference between the relevant person’s
current patrimonial position and his hypothetical patrimonial position
 Eg. loss of earning capacity;
 That would have been the current position if;
 The event had not taken place.
 It entails a comparison of an actual current patrimonial sum with a
hypothetical current patrimonial sum-
 Dippenaar v Shield Insurance Co Ltd



2. A concrete (approach)
 concept of damages [easier to prove]
 Must compare what was with what is,
 Do not compare current position with a hypothetical position; which
 Would have existed had the delict not been committed
 Ie. Before and after-

,  Santam Versekeringmaatskappy v Bylevelt.
 Our law should a concrete approach to damage except in cases of future loss,
liability for misrepresentation and loss of profit;
 Where it is necessary to work with a hypothetic element


Suggestion:
 Our law should use a concrete approach to damage except in cases of future
loss, liability for misrepresentation and loss of profit, where it is necessary to
work with a hypothetic element.


Time for assessment of damage
 Generally, date of delict.
 The full extent of damage occurs later:
 Use date upon which the first damage manifested –
 Oslo Land Co Ltd v Union Government.
 Also take into account events between date of delict and date of trial.
 Settlement- General Accident Insurance Co SA Ltd v Summers


2. Prospective/ future patrimonial damage (Lucrum cessans)
Definition:
 Damage in the form of patrimonial or non-patrimonial loss which will;
 With a sufficient degree of probability;
 Materialize after the date of assessment of damage resulting from an earlier
damage-causing event.
 Visser and Potgieter’s view:
 Future damage rests on 2 pillars;
 It has a prospective dimension as well as a present one.
 Even though prospective damage literally only manifests itself in money/
otherwise in future, basis is to be found in impairment of plaintiff’s present
interests.