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Chapter 6-11 Summary - Law of Delict (PVL303)
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Summary of 44 pages for the course Law of Delict at Unisa (Law of Delict)
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Chapter 6: Damage1. Introduction
• A delict is a wrongful, culpable act with harmful consequences.
• Damage is fundamental to a delictual action for damages.
• The purpose of this chapter is to discuss principles of assessing damage and determining proper
compensation or satisfaction.
2. Compensatory Function of the Law of Delict
• The law of delict has a compensatory role, which includes:
• (a) Compensation for damage (Damages/“skadevergoeding”):
• Damages represent a monetary equivalent of the harm suffered, aimed at
covering past and future patrimonial or non-patrimonial damage.
• (b) Satisfaction (“genoegdoening”):
• Applies when monetary compensation cannot truly compensate the impaired
interest. Satisfaction addresses damage to personality and provides retribution,
satisfying the plaintiff’s or community’s sense of justice, often through monetary
payment by the defendant proportional to the inflicted wrong.
3. The Concept of Damage
3.1 Definition of Damage
• Damage is the detrimental impact on patrimonial or personality interests protected by law.
3.2 Extent of the Concept of Damage
3.2.1 General
• Damage includes more than harm for which compensation is recoverable, as satisfaction may
also be awarded.
• Legally recognized harm pertains to patrimonial and non-patrimonial interests.
• Certain losses, such as inconvenience, frustration, or disappointment, are not compensable
under the Aquilian action for policy reasons.
• Only a reduction in utility caused by uncertain events qualifies as damage.
• Prospective loss (anticipated reduction of patrimonial or personality value) is included as part of
damage.
3.2.2 Damage Includes Patrimonial and Non-patrimonial Loss
• Damage is a broad concept, encompassing:
• Patrimonial loss: Financial or material losses.
, • Non-patrimonial loss: Injury to personality.
• Some authors (e.g., Van der Walt, Reinecke) define damage only as patrimonial loss, while
others (e.g., McKerron, Pauw) adopt a broader definition that includes non-patrimonial loss.
• Arguments supporting the broad concept of damage:
• (a) Patrimonial and non-patrimonial loss share a common denominator: the diminution
of utility in interests protected by law.
• (b) Legal practice interprets "damage" broadly, covering both patrimonial and non-
patrimonial losses.
• (c) The action for pain and suffering provides compensation for non-patrimonial loss
(e.g., physical injury), demonstrating that injury to personality is considered damage.
Conclusion
• A wide concept of damage is appropriate as a starting point, followed by determining which
forms are compensable and when satisfaction plays the primary role.
Continued
:
3.3 The Relationship Between Patrimonial and Non-patrimonial Loss
• Damage includes harm to patrimony and personality.
• Commonality: Both infringe on a legally protected interest, compensated by money.
• Differences between patrimonial and non-patrimonial damage:
• (a) Patrimonial loss: Can be directly measured in monetary terms; Non-patrimonial loss:
Indirectly measurable in monetary terms.
• (b) Patrimonial loss: Precision in measurement using objective criteria; Non-patrimonial
loss: Estimated equitably based on subjective feelings.
• (c) Patrimonial loss: Genuine monetary equivalent exists; Non-patrimonial loss: No true
monetary relationship.
• (d) Patrimonial loss: Involves reduced utility of patrimonial interest; Non-patrimonial
loss: Affects personality interest.
3.4 The Relationship Between Damage and Wrongfulness (Unlawfulness)
• Wrongfulness and damage are separate elements of delict.
• General rule: An act is wrongful if it causes a harmful consequence.
• Example: Driving at high speed is not wrongful unless it causes harm.
, • Exceptions: Acts can be unlawful even without damage (e.g., theft of a valueless object).
• Instances of damage without wrongfulness:
• Natural events (e.g., lightning causing damage) or self-inflicted damage (e.g., breaking
one's own property) do not involve wrongfulness.
• Van der Merwe and Olivier's view: Argue a close connection between wrongfulness and
damage (e.g., breaking a window in necessity does not constitute damage).
• Criticism: Wrongfulness should not define damage. Lawfulness or unlawfulness does not
determine whether damage exists.
• Reinecke's view: Damage does not depend on wrongfulness, but an expectation to earn from
illegal activity is not recognized as damage since it does not involve a legally protected interest.
3.5 The Relationship Between Damage and Factual Causation
• Damage and factual causation are separate delictual elements but related.
• Causation is determined by referencing damage.
• Example: If an event would have occurred regardless of the defendant’s act, there is no
causation (e.g., window shattered by a stone, but would have been destroyed by a bomb).
• Tests for causation and damage may overlap:
• Sum formula: Compares the plaintiff's actual and hypothetical position had the
damaging event not occurred.
• Condictio sine qua non test: Determines causation by eliminating the alleged cause and
checking if the damage still occurs.
• Van der Walt's view: Tests for damage and causation are distinguishable; Reinecke's view: Tests
coincide when damage is established using a comparative method.
4. Patrimonial (Pecuniary) Loss
4.1 Definition of Patrimonial Loss
• Patrimonial loss: The detrimental impact on any patrimonial interest deemed worthy of legal
protection.
• Patrimonial loss includes:
• Loss or reduction in value of a positive asset.
• Creation or increase of a negative element (patrimonial debt).
Continued
:
, 4 Patrimonial (Pecuniary) Loss
4.1 Definition of Patrimonial Loss
• Patrimonial loss refers to the detrimental effect on patrimonial interests protected by law.
• It includes:
• Loss or reduction of a positive asset.
• Creation or increase of a negative patrimonial element (debt).
4.2 A Person’s Patrimony (Estate)
• Patrimony includes all patrimonial rights, enforceable obligations, and expectations with
monetary value.
• Union Government (Minister of Railways and Harbours) v Warneke defined patrimony as a
"universitas" of rights and duties.
• Reinecke: Elements of patrimony:
• Positive elements: Real rights, immaterial property rights, personal rights, and
protected expectations of future benefits.
• Negative elements: Debts and obligations, including the creation or expectation
of incurring debt.
4.3 Ways Patrimonial Loss is Caused
• Loss of a patrimonial element: Loss of property, rights, or expectations (e.g., loss of profit due to
damage to assets).
• Reduction in value of a patrimonial element: Diminished utility value of assets or rights.
• Creation or increase of a debt: Incurring expenses or medical costs, or increasing existing debts.
4.4 Forms of Patrimonial Loss
• Damnum emergens and lucrum cessans:
• Lucrum cessans: Loss of profit or prospective loss.
• Damnum emergens: Damage suffered up to the date of trial.
• Damage to property and pure economic loss:
• Physical damage to property and broader financial losses (including pure economic loss
without physical damage).
• Direct and consequential loss:
• Direct loss is the immediate result, while consequential loss flows from the direct
damage (e.g., lost business profits due to vehicle damage).
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