ASSIGNMENT 1
Question 1
Xoliswa suffers from a degenerative back condition and in the motor vehicle accident
she intensified this condition to such an extent that she has to undergo a back
operation. The following principle(s) will apply to his situation:
1. The court will reduce the claim unless Xoliswa can prove by way of factual
evidence that she would most probably not in future have shown any symptoms of
this pre-existing back condition if it wasn’t for the accident.
2. The court will reduce the claim if the defendant can prove by way of factual
evidence that Xoliswa would in any event at a later stage have shown symptoms of
this pre-existing back condition.
3. The court will apply the talem-qualem rule strictly and hold the defendant fully
liable for all the losses suffered.
4. 1 + 2.
5. 2 + 3. (2)
The correct answer is [2].
Option 2 is correct – see information on the website under Learning Unit 3. Option 1
is incorrect because the onus to prove those facts rests on the defendant. Option 3 is
incorrect because this statement will only be true if Xoliswa’s back condition was
asymptomatic before the motor vehicle accident. This fact was not given.
Question 2
In a claim for future loss
1. the Coetzee v SAR & H 1933 CPD 565 and Jowell v Bramwell-Jones 2000 (3) SA
274 (SCA) cases are in agreement that prospective loss is an independent cause of
action on its own.
2. the onus of proof that rests on the plaintiff makes no distinction between the fact
which must be proved and the content of the fact.
3. a contingency is allowed for by including in the damages a figure representing a
percentage of that which would have been included if the injury was a certainty. ()
4. the plaintiff need only to prove 51 percent probability of loss to be entitled to the
entire claim.
5. the absence of empirical knowledge regarding future events calls on the court to
use scientific methods to arrive at a perfect figure. (2)
The correct answer is [3].
Question 1
Xoliswa suffers from a degenerative back condition and in the motor vehicle accident
she intensified this condition to such an extent that she has to undergo a back
operation. The following principle(s) will apply to his situation:
1. The court will reduce the claim unless Xoliswa can prove by way of factual
evidence that she would most probably not in future have shown any symptoms of
this pre-existing back condition if it wasn’t for the accident.
2. The court will reduce the claim if the defendant can prove by way of factual
evidence that Xoliswa would in any event at a later stage have shown symptoms of
this pre-existing back condition.
3. The court will apply the talem-qualem rule strictly and hold the defendant fully
liable for all the losses suffered.
4. 1 + 2.
5. 2 + 3. (2)
The correct answer is [2].
Option 2 is correct – see information on the website under Learning Unit 3. Option 1
is incorrect because the onus to prove those facts rests on the defendant. Option 3 is
incorrect because this statement will only be true if Xoliswa’s back condition was
asymptomatic before the motor vehicle accident. This fact was not given.
Question 2
In a claim for future loss
1. the Coetzee v SAR & H 1933 CPD 565 and Jowell v Bramwell-Jones 2000 (3) SA
274 (SCA) cases are in agreement that prospective loss is an independent cause of
action on its own.
2. the onus of proof that rests on the plaintiff makes no distinction between the fact
which must be proved and the content of the fact.
3. a contingency is allowed for by including in the damages a figure representing a
percentage of that which would have been included if the injury was a certainty. ()
4. the plaintiff need only to prove 51 percent probability of loss to be entitled to the
entire claim.
5. the absence of empirical knowledge regarding future events calls on the court to
use scientific methods to arrive at a perfect figure. (2)
The correct answer is [3].
