Andre – John Truter
Student number: 62424041
LAW OF DAMAGES – LPL4802
Portfolio assessment – 25 October 2019
UNIQUE NUMBER: 783 613
Question 1:
1.1)
a) The first of the four heads of damages which Thembi may claim under is pain
and suffering, in relation to the damage causing event. It was decided in Marshall
v Southern Ins Ass Ltd 1950 (2) PH J6 (D) that a claim for this form of non-
patrimonial loss stems from all pain suffered by the Plaintiff, whether physical or
psychological, and irrespective of their sensitivity in relation to the average
person. Therefore, Thembi’s claim for pain and suffering will be based on the
physical pain suffered as a result of Tim breaking her brow and left leg with a golf
club, as well as the blows taken by her arms. She will, furthermore, claim in
respect of her mental suffering due to her disfigurement, and her depression.
The second of the four heads of damages Thembi may claim under is
disfigurement. A claim of this nature refers to the loss of the aesthetic value of a
particular bodily feature, and can include amputation, scarring and deformities. A
determining factor in quantifying this type of damages is whether the
disfigurement is temporary or permanent in nature, and rule 18(10) of the Uniform
Rules of court and rule 6(9) of the Magistrate’s Court rules require this be
disclosed. In this scenario, Thembi has undergone surgery, and will have to
undergo further extensive surgery in the future, which will inevitably result in
scarring on both the leg and the face. It is, furthermore, confirmed by the
orthopaedic surgeon that the nature of the injuries to the bones have resulted in
a permanent deformity. In addition, the facial scarring (combined with the injury
to her brow bone) has changed the aesthetic value of Thembi’s face to such an
,extent that she requires medication to suppress her depression. As such, Thembi
will most certainly be entitled to claim for disfigurement.
The third of the four heads of damages Thembi may claim under is shock. This
relates to a psychiatric injury, causing emotional shock, which results from the
occurrence of a surprising and undesirable event. The requirement for this claim
is, as established in Road Accident Fund v Sauls 2002 (2) SA 55 (SCA), that
injury must be detectable. Simply put, the psychiatric injury must result in the
Plaintiff displaying outward symptoms of the injury. An injury of this nature must
also subsist for an extended period of time in order for this claim to arise. In this
scenario, a psychologist’s report confirms that Thembi has suffered mental
trauma as a result of the assault, as well as developing an uncharacteristically
low self esteem as a result of the scarring to her face. This is evident from the
self-consciousness of her appearance and the psychologist deemed it necessary
to treat the mental trauma with anti-depressants. There is no evidence that this
is a temporary condition and, given the nature of the scarring, it is assumed that
the condition will persist in the future. Therefore, Thembi may claim for shock.
The fourth heads of damages which Thembi may claim under is loss of amenities
of life. This relates to a person losing the ability, or having the ability lessened,
to participate in specific activities that were previously enjoyed or to go about life
as done previously, whether at present or in the future. As established in
Administrator-General SWA v Kriel 1988 (3) SA 275 (A), this claim is concerned
with the Plaintiff’s everyday existence. In this scenario, Thembi is an unemployed
house wife who enjoys baking for her family. We refer then to the ortho paedic
surgeons report, which states that sequelae of the bone injuries will take away
her normal life. This report is sufficient to substantiate a claim for loss of amenities
of life, but the court will have to be presented with further particulars.
The above are but four categories of heads of damages under which Thembi may
claim. However, Thembi is not limited to these claims and may, in terms of section
18 of the Matrimonial Property Act, claim for both patrimonial and non-patrimonial
losses.
, b) Owing largely to the world’s historically patriarchally dominated society, legal
systems the world over have been, and are still, constantly undergoing review
and reform in order to conform with the widely acknowledged right to gender
equality. In South Africa, the introduction of the Constitution of the Republic of
South Africa, 1996, was a major catalyst in the South African process. A particular
example is section 18 of the Matrimonial Property Act 88 of 1984 and it’s common
law application prior to 2006.
Before the enactment of the Matrimonial Property Act, the common law position,
which was followed as recently as 1984 in Delport v Mutual & Federal
Insurance 1984 (3) 191 (D), stated that spouses could not sue each other for
patrimonial or non-patrimonial losses. The reasoning applied by the courts was
that anything claimed by the one spouse would automatically fall back into the
common estate, making the process void of purpose. With the enactment of the
Matrimonial Property Act, and prior to its amendment by the Judicial Matters
Amendment Act 66 of 2008, section 18 of the Matrimonial Property Act stated
that a spouse (which was also referred to using the male gender pronoun at the
time) was not entitled to claim patrimonial loss as a result of bodily injuries caused
by a spouse if the pair were married in community of property, but allowed any
non-patrimonial losses claimed to form part of the spouses separate estate.
However, the exclusion of patrimonial losses presented an issue in that it
discriminated against spouses married in community of property, as opposed to
out of community of property.
In Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC)
addressed precisely this issue and, in applying the rational differentiation test,
found that section 18(b) of the Matrimonial Property Act to be inconsistent with
the right to equality provided in section 9(1) of the Constitution. The Matrimonial
Property Act differentiated between the marriage systems and, as such, did not
afford an equal protection of proprietary interests and protections to spouses
married in community of property.
As a result of the Constitutional Court declaring section 18(b) unconstitutional,
the Judicial Matters Amendment Act 66 of 2008 amended section 18(b) to, firstly,
include both gender pronouns and, secondly, to allow any person to claim
Student number: 62424041
LAW OF DAMAGES – LPL4802
Portfolio assessment – 25 October 2019
UNIQUE NUMBER: 783 613
Question 1:
1.1)
a) The first of the four heads of damages which Thembi may claim under is pain
and suffering, in relation to the damage causing event. It was decided in Marshall
v Southern Ins Ass Ltd 1950 (2) PH J6 (D) that a claim for this form of non-
patrimonial loss stems from all pain suffered by the Plaintiff, whether physical or
psychological, and irrespective of their sensitivity in relation to the average
person. Therefore, Thembi’s claim for pain and suffering will be based on the
physical pain suffered as a result of Tim breaking her brow and left leg with a golf
club, as well as the blows taken by her arms. She will, furthermore, claim in
respect of her mental suffering due to her disfigurement, and her depression.
The second of the four heads of damages Thembi may claim under is
disfigurement. A claim of this nature refers to the loss of the aesthetic value of a
particular bodily feature, and can include amputation, scarring and deformities. A
determining factor in quantifying this type of damages is whether the
disfigurement is temporary or permanent in nature, and rule 18(10) of the Uniform
Rules of court and rule 6(9) of the Magistrate’s Court rules require this be
disclosed. In this scenario, Thembi has undergone surgery, and will have to
undergo further extensive surgery in the future, which will inevitably result in
scarring on both the leg and the face. It is, furthermore, confirmed by the
orthopaedic surgeon that the nature of the injuries to the bones have resulted in
a permanent deformity. In addition, the facial scarring (combined with the injury
to her brow bone) has changed the aesthetic value of Thembi’s face to such an
,extent that she requires medication to suppress her depression. As such, Thembi
will most certainly be entitled to claim for disfigurement.
The third of the four heads of damages Thembi may claim under is shock. This
relates to a psychiatric injury, causing emotional shock, which results from the
occurrence of a surprising and undesirable event. The requirement for this claim
is, as established in Road Accident Fund v Sauls 2002 (2) SA 55 (SCA), that
injury must be detectable. Simply put, the psychiatric injury must result in the
Plaintiff displaying outward symptoms of the injury. An injury of this nature must
also subsist for an extended period of time in order for this claim to arise. In this
scenario, a psychologist’s report confirms that Thembi has suffered mental
trauma as a result of the assault, as well as developing an uncharacteristically
low self esteem as a result of the scarring to her face. This is evident from the
self-consciousness of her appearance and the psychologist deemed it necessary
to treat the mental trauma with anti-depressants. There is no evidence that this
is a temporary condition and, given the nature of the scarring, it is assumed that
the condition will persist in the future. Therefore, Thembi may claim for shock.
The fourth heads of damages which Thembi may claim under is loss of amenities
of life. This relates to a person losing the ability, or having the ability lessened,
to participate in specific activities that were previously enjoyed or to go about life
as done previously, whether at present or in the future. As established in
Administrator-General SWA v Kriel 1988 (3) SA 275 (A), this claim is concerned
with the Plaintiff’s everyday existence. In this scenario, Thembi is an unemployed
house wife who enjoys baking for her family. We refer then to the ortho paedic
surgeons report, which states that sequelae of the bone injuries will take away
her normal life. This report is sufficient to substantiate a claim for loss of amenities
of life, but the court will have to be presented with further particulars.
The above are but four categories of heads of damages under which Thembi may
claim. However, Thembi is not limited to these claims and may, in terms of section
18 of the Matrimonial Property Act, claim for both patrimonial and non-patrimonial
losses.
, b) Owing largely to the world’s historically patriarchally dominated society, legal
systems the world over have been, and are still, constantly undergoing review
and reform in order to conform with the widely acknowledged right to gender
equality. In South Africa, the introduction of the Constitution of the Republic of
South Africa, 1996, was a major catalyst in the South African process. A particular
example is section 18 of the Matrimonial Property Act 88 of 1984 and it’s common
law application prior to 2006.
Before the enactment of the Matrimonial Property Act, the common law position,
which was followed as recently as 1984 in Delport v Mutual & Federal
Insurance 1984 (3) 191 (D), stated that spouses could not sue each other for
patrimonial or non-patrimonial losses. The reasoning applied by the courts was
that anything claimed by the one spouse would automatically fall back into the
common estate, making the process void of purpose. With the enactment of the
Matrimonial Property Act, and prior to its amendment by the Judicial Matters
Amendment Act 66 of 2008, section 18 of the Matrimonial Property Act stated
that a spouse (which was also referred to using the male gender pronoun at the
time) was not entitled to claim patrimonial loss as a result of bodily injuries caused
by a spouse if the pair were married in community of property, but allowed any
non-patrimonial losses claimed to form part of the spouses separate estate.
However, the exclusion of patrimonial losses presented an issue in that it
discriminated against spouses married in community of property, as opposed to
out of community of property.
In Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC)
addressed precisely this issue and, in applying the rational differentiation test,
found that section 18(b) of the Matrimonial Property Act to be inconsistent with
the right to equality provided in section 9(1) of the Constitution. The Matrimonial
Property Act differentiated between the marriage systems and, as such, did not
afford an equal protection of proprietary interests and protections to spouses
married in community of property.
As a result of the Constitutional Court declaring section 18(b) unconstitutional,
the Judicial Matters Amendment Act 66 of 2008 amended section 18(b) to, firstly,
include both gender pronouns and, secondly, to allow any person to claim
