Class notes
notes of delict claims
- Course
- Law of delict
- Institution
- Walter Sisulu University (WSU)
claiming for damages
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Chapter 6Compensatory 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.
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