1.1Damages
In law, damages are an award, typically of money, to be paid to a person as
compensation for loss or injury. The rules for damages can and frequently do
vary based on the type of claim which is presented (e.g., breach of contract
versus a tort claim) and the jurisdiction.1
Damage
I...
LPL4804 EXAM PACK WITH GREAT STUDY NOTES
MAHAPA SMD
STUDENT NO: 56063636
LPL4802 LAW OF DAMAGES
PORTFOLIO EXAMINATION
UNIQUE NO: 895518
DUE DATE: 24 OCTOBER 2018
QUESTION 1
1.1 Damages
In law, damages are an award, typically of money, to be paid to a person as
compensation for loss or injury. The rules for damages can and frequently do
vary based on the type of claim which is presented (e.g., breach of contract
versus a tort claim) and the jurisdiction. 1
Damage
Is the loss caused by one person to another, or to his property, either with the
design of injuring him, with negligence and careless, or by inevitable accident 2
1.2 Similarities
• Both caused by animals
• That the conduct of the animal caused the plaintiff’s damage.
• damages are claimed from the owner of an animal
• No fault on the defendant
• Defendant must be the owner of the animal in question when the
damage is caused
• The animal must act of its own volition when causing the damage
Dissimilarities
• In action de pastu the animal must cause damage by eating plants whereas in
action de pauperie animal cause damage by causing injury.
____________________________
1. Neethling. Law of Delict 7th edition, LexisNexis SA, 12/1/14. VitalBook file
2. Visser D ‘Delict’ in Du Bois F (general editor) Wille’s Principles of South African Law10919 ed
Juta Cape Town 2007.
,MAHAPA SMD
STUDENT NO: 56063636
LPL4802 LAW OF DAMAGES
PORTFOLIO EXAMINATION
UNIQUE NO: 895518
DUE DATE: 24 OCTOBER 2018
Presiding officer C.J Innes in the 1927 case of O Callaghan v Chaplin, stated
that the owner of the dog that attacks a person who is lawfully at the place
where he was injured, and who neither provoked the attack nor by his
negligence contributed to his own injury, is liable, as owner, to make good the
resulting damage.
1.3 Contingency
a) This may be described as uncertain circumstances of a positive or
negative nature which, independent of the defendant’s conduct and if it
should realize, would probably influence a person’s health, income,
earning capacity, quality of life, life expectancy or dependency on
support in future or could have done so in the past, and which must
consequently be taken into account in a fair and realistic manner by
increasing or decreasing the plaintiff’s damages during the
quantification process.3
b) Contingencies can be described as uncertain circumstances of a
positive or negative nature which, independent of the defendant’s
conduct and if they should realise, would probably influence a person’s
health, income, earning capacity, quality of life, life expectancy or
dependency on support in future or could have done so in the past, and
which consequently must be taken into account in a fair and realistic
manner in the quantification of damages.4
_______________________________
3. Van der Merwe N J 'Aspects of the law of contractual torts' (1978) 95 SALJ 317.
4. Van der Merwe N J 'Aspects of the law of contractual torts' (1978) 95 SALJ 317.
, MAHAPA SMD
STUDENT NO: 56063636
LPL4802 LAW OF DAMAGES
PORTFOLIO EXAMINATION
UNIQUE NO: 895518
DUE DATE: 24 OCTOBER 2018
Essential to this definition is the element of certainty or uncertainty
with which an incident can be predicted that is linked to the degree of
probability that the occurrence will take place or would have taken
place if it had not been for the accident. Two particular theories could
be relevant in the establishment of the degree of probability, namely
the Pascalian model in which a pure mathematical approach is
followed and the Baconian model in which an inductive approach is
followed. Because the Baconian model is less stringent, it appears to
be more suitable for determining and applying contingencies. In civil
law the burden of proof rests upon the plaintiff and the expected
measure of proof is a preponderance of probability. It has become
clear that the terms 'burden of proof' and 'measure of proof' according
to their strict evidentiary meaning, do not fit naturally into the theory of
proof in the case of contingencies. If the amount of damages has to be
adjusted for contingencies, it does not mean necessarily that the
burden of proof in respect of the adjustment always rests upon the
plaintiff. In principle, one can say that the plaintiff must adduce
evidence of contingencies that can increase damages and the
defendant of contingencies that can reduce damages. The measure of
proof also is relaxed in cases where uncertainty prevails, for instance in
the case of future loss.5
____________________________________________
5. Stoll H & Visser P J 'Some thoughts on delictual damages for loss of use of property in terms of South African and
German law' (1990) 23 De Jure 347.
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