Lessons LPL 4802 - Study Guide

Page 1 of 178
LLP 4802: LAW OF DAMAGES
MODULE TITLE COMMENTS

Law of Damages
NQF LEVEL
8
NUMBER OF CREDITS
12
NOTIONAL STUDY HOURS (NSH)

120
DELIVERY MODE (ONLINE OR BLENDED)

Entirely online
ASSESSMENT STRUCTURE OF THE MODULE (Activities and Formative Assessment)

This module has four formative assignments, done by the students and submitted for online marking as
well as one summative take-home exam, to be completed and submitted for online marking.
PURPOSE OF THE MODULE

• It seeks to equip the students with a sound and in-depth conceptualisation of loss (damage),
delictual, contractual and statutory, and a correct understanding of the methods and processes
by which such loss is assessed and then compensated through the award of damages.
Open Rubric
Page 2 of 178
• This module aims to give students a thorough grounding on important aspects of the theory and
implications of the most important delictual remedies, namely the actio legis Aquiliae, actio
iniuriarum as well as the action for pain and suffering, which remedies are crucial for the institution
of any delictual claim in the Republic of South Africa.
• It also enables students to gain insight into very important principles that govern the computation
and award of both patrimonial and non-patrimonial damages.
RESOURCES TO BE USED
• Textbook
• Power point presentations - Where applicable,
articles will be made
• Articles
available under
• Case law Electronic Reserves
• Podcasts (e-reserves)
• YouTube Videos
• Hyperlinks
MODULE FACILITATORS
• Adv M Khumalo
• Mr N Netshitungulu
• Prof M Mokotong
SCHEDULE
This is a semester module.
This module is expected to take 120 notional hours to complete.
Assignment dates to match those in TL101.
Page 3 of 178
FAQ
1. Is this a semester or year module?
This module is presently offered as a semester module. This means that if you register for the
January intake, you will write your examinations in May, and if you register for the July intake,
your examinations will be written in October.
2. If one misses the exam, for a good reason, is there an aegrotat exam for such cases?
The answer is NO. Students have a week to write this exam. It means that you have sufficient
time to plan your life around the writing of the exams. The actual writing of the exam should not
take you more than 48 hours. Should you be in hospital or for some valid reason, be unable to
write your exam, inform your lecturers immediately, and make an arrangement for submission of
your exam. These circumstances have, however, been very rare in the past.
3. Is there a supplementary exam for this module?
The answer is NO. This module is ordinarily taken as a last/final semester module for LLB
students. If you write and fail the module, and you are left with at most two (2) modules to complete
your qualification, the DSAA will send you an e-mail confirming that you qualify for an F1
concession exam. You will then be contacted by your lecturers to inform you about the dates for
this exam.
4. Now and again Unisa makes amendments to the due dates of assignments and change of
format for the exams, do these automatically affect LPL4802?
In most cases, NO. We urge students to read each announcement carefully. Online modules are
often exempted from these announcements. We often follow them up with our own site
announcements to indicate what students should do. Please do not assume that each
announcement affects LPL4802.
5. Where can we get past papers for this module to practice for the exams?
These will be found under the “Official Study Material” tab on the myUnisa site.
6. Other than the lesson tools, what other forms of assistance are available to students?
Each lesson tool is uniquely structured to best serve its purpose. Additional learning material is
listed, and references to these materials are made in each lesson.
Page 4 of 178
7. In the storyboard or lessons on myUnisa you make use of mind maps. Are they supposed
to be understood as concise summaries of each lesson and if so, should they be brief?
Each mind map at the beginning of each lesson is a synopsis of the lesson. It does not seek to
give the students a complete view of the lesson. Instead, it simply establishes what concepts or
ideas the lesson will focus on. Comprehensive summaries should come from students after
interacting with the lesson. At that juncture, students are encouraged to also draw their own mind
maps, if they can, of the most important ideas that stood out for them.
8. Some lessons direct students to study footnotes. Is it important that we do so? Please
explain the reasons.
It is critical that you get a clear idea of the use of footnotes in legal writing. Footnotes are used to
capture additional views or counter arguments on a legal principle. In order to walk away with a
balanced view of the most important arguments, we require you, from time to time, that you read
in detail, certain footnotes. These footnotes either give you examples or simply discuss the
principle further. We are therefore, of the view that they will help you to become a better scholar.
9. When it has taken too long since the exams were written for the results to be released, who
do we contact?
Lecturers and experienced, qualified markers attend to the marking, usually within 14 days after
the exam has been written. The DSAA is responsible for the issuing of results. They often send
an announcement, with a range of dates. Wait until the last date for the release of the results
before contacting the University.
10. If I am dissatisfied with my assignment or exam mark, what is my recourse?
With regard to formative, written assignments, you may contact one of your lecturers, send the
script, together with feedback you received for the assignment, and a list of points or questions
you think the marker overlooked. We request that you send a clear explanation as to why you
think your answer deserves a better mark. We cannot attend to a request for a remark with a
vague complaint, like “I don’t think my marker did justice to my script”. Be professional and candid.
We will gladly remark and give your script a mark that it deserves. Kindly note that there is also a
possibility of a downgrade (as an outcome) where in our remarking, we get the sense that the first
Page 5 of 178
marker was too generous with marks, despite your complaint.
With regard to exam remarks, please follow the University guidelines that apply to all remarking
of exams. The Law of Damages lecturers are not involved at all in the remarking process, for
professional and ethical reasons. In instances where you follow the University guidelines for a
remark, the script is sent to a subject expert (a senior academic) at another institution outside of
UNISA. That being said, please forward all your remark requests to the relevant departments.
11. ICONS FREQUENTLY USED
LESSON OUTCOMES
ESTIMATED TIME FOR LESSON
KEY CONCEPTS AND TERMS

Page 6 of 178
INTRODUCTION
READ TEXTBOOK MATERIAL
ACTIVITY
CASE LAW
ANALYTICAL QUESTIONS
Page 7 of 178
CRITICAL AND REFLECTIVE THINKING
Library icon
SUMMARY OF LESSON
ICONS TO
BE USED
DURING
SEMESTER
Text icon
This icon is used to show normal texts.
Page 8 of 178
Image icon
This icon is used to show either an image or
a figure or graph, and so on.
Video icon
This icon is used to show a video insert.
Audio icon
This icon is used to show an audio insert
such as music, or voice recording, and so on.
Podcast icon
This icon is used to show a podcast insert.
URL link icon

This icon is used to show a URL/Web link
insert.
Transcript icon
This icon is used to show a transcript insert.
Comments tool icon

This icon is used to show the insertion of the
comments tool.
Page 9 of 178
Discussion icon
This icon is used to show that the activity is a
discussion post.
Self-reflective activity icon

This icon is used to show that the activity is a
self-reflective activity.
Assessment activity icon

This icon is used to show that the activity is
linked to assessment.
Feedback icon
This icon is used to show feedback for an
activity.
Sub-page icon
This icon is used to show the insertion of a
sub-page, that is, sub-theme or sub-topic.
E-tutor icon
This icon is used to show E-tutor
engagements.
Page 10 of 178
PDF icon
Qualification/module site Things to remember

(Welcome)
Page
Dear Student Record a welcome podcast
It is a pleasure to welcome you to LPL4802, the Law of Damages module.
Indeed, this is an exceptionally long module. It covers a wide range of legal
fields. Consequently, your knowledge of those fields would be tested with a
focus on the law of damages. We trust that you will find this module practically
relevant not only to your student and career objectives, but to life in its entirety.
You are further requested to consult the Tutorial Letter 101 relating to this
module for important information regarding exams and assignments. This
module is taught fully online, which means that you will have limited contact
time with your lecturers. You are expected to work mostly independently, and
partly in collaboration with other students, only in activities referred to as online
discussion topics. The flip side of it is that all the formative and summative
tasks that you will submit online for marking, must be done individually;
WITHOUT the assistance of other students or anyone else for that matter. If
you have problems understanding a specific aspect, raise it in the group
discussions. If you are still dissatisfied, drop your lecturers an e-mail and they
Page 11 of 178
will respond to your query.

We have already stated that this module is exceptionally long; our advice is
that you should start your reading as soon as you are registered and given
access to the myUnisa site. Try to complete each lesson per week, so as to
leave a month aside for exam revision. We wish you all the success in this
module and the rest of your studies.
There is a prescribed textbook for this module: JM Potgieter, L Steynberg
and TB Floyd Visser & Potgieter Law of Damages, 3rd ed. (2012) Juta.
Please note that older editions of this prescribed textbook are completely
outdated and should not be used. An electronic version of the textbook in the
format of an e-book is also available and can be purchased directly from the
publishers at www.juta.co.za.
The purpose of the module is to:

• Equip the students with a sound and in-depth conceptualisation of loss
(damage), delictual, contractual and statutory as well as a correct
understanding of the methods and processes by which such loss is
assessed and then compensated through the award of damages.
• Give students a thorough grounding in important aspects of the theory
and implications of the most important delictual remedies, namely the
actio legis Aquiliae, actio iniuriarum as well as the action for pain and
suffering, which remedies are crucial for the institution of any delictual
claim in the Republic.
Page 12 of 178
• Enable students to gain insight into very important principles that govern
the computation and award of both patrimonial and non-patrimonial
damages.
You must interact with our lesson tools, read the sections of the prescribed
textbook as well as the case law we refer you to. You must submit all your
assignments timeously, taking note of the respective due dates. Due dates are
stated both on the assignment and the TL101. Assignments or final exams
submitted after the due date will not be marked.
All the best.
Your Lecturers
Page 13 of 178
LESSON 1
TITLE OF LESSON SOURCES, HISTORY AND DEVELOPMENT OF THE
LAW OF DAMAGES
NOTIONAL STUDY 7
HOURS
NUMBER OF PLANNED 4
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES
NUMBER OF E-TUTOR N/A

ACTIVITIES
(Where
necessary/applicable)
Page 14 of 178
NOTION DESCRIPTION COMMENTS

AL (Insert relevant icons)
STUDY
HOURS
LESSON OUTCOMES
At the end of the lesson, students should be able to :
▪ understand key concepts and terms used commonly throughout the study of the law of damages
▪ discuss the nature and scope of damages
▪ explain the sources of claims of damages
▪ discuss the development of damages within the South African legal system
Page 15 of 178
Lesson 1 will require seven hours.
Use the textbook and other credible sources to compile the meaning of the following key concepts and
terms that would be used throughout the study of the law of damages from now until the end of the semester.
It is important that you study these terms extensively, as their knowledge and use imply a better
understanding of this field of the law. Also refer to the Multilingual Glossary provided under “Additional
Resources” on the myUnisa module site.
You will need to master the following key terms as part of achieving the learning outcomes for this lesson:
damage;
patrimonial loss;
patrimony;
Page 16 of 178
non-patrimonial loss;
damage-causing event;
affective loss;
damages;
compensation;
satisfaction;
compensation for non-patrimonial loss;
solatium;
the sum-formula approach;
concrete concept of damage;
once and for all rule;
cause of action;
collateral benefits;
res inter alios acta;
general damages;
special damages;
nominal damages;
id quod interest;
prospective loss;
positive interesse; .
negative interesse;
Page 17 of 178
discounting;
annuity;
contingencies;
limitation of liability.
INTRODUCTION
DEFINITION OF
SOURCES OF THE
THE LAW OF
LAW OF
SOURCES, DAMAGES
DAMAGES
HISTORY AND
DEVELOPME
NT OF THE
LAW OF
DAMAGEs
THE OBJECT AND NATURE AND

SYSTEM OF THE SCOPE OF THE
LAW OF LAW OF
DAMAGES DAMAGES
Page 18 of 178
1.1 INTRODUCTION
Welcome to your first lesson in the module. This lesson seeks to give you a general overview of the nature
and scope of the field of law. It goes without saying, that this is a fourth-year level module, and as a result,
it would require your highest levels of concentration.
It is convenient to define the law of damages as that field of law that deals with the creation, content and
termination of obligations to pay damages and satisfaction to an injured party, by the wrongdoer. Its scope
entails the understanding of the rules and principles from different branches of law (mercantile law, labour
law, the law of contracts and other legislation) in respect of the identification and payment of compensation
to the victim. Add to the
Discussion
The object of the law of damages is not entirely different from its scope, in that it seeks to establish logical forum
and practical rules that should be used to solve problems with regard to the determination, assessment and Activity
computation of damages where damage has occurred. 1.1.2
Page 19 of 178
The sources of damages covered in this lesson include, among others, those that arise from specific
delictual remedies, liability without fault, legislation, breach of contract, insurance and statutory as well as
common law rights of recource. It is critical that students understand these sources of claims as they form
the backbone of the law of damages. This lesson also covers some aspects of the history and development
of the South African law of damages.
Pages 1-25 of the PT (hereinafter referred to as the “Prescribed textbook”).
Keep your PT at hand as you work through the lessons as well as your Tutorial Letter 101. We encourage
you to also get yourself a good dictionary and keep it at hand, so that you can constantly refer to it each
time you come across difficult terms, the meanings of which you may not always understand.
Also refer to the Multilingual Glossary provided under “Additional Resources” on the myUnisa module site.
Lastly, you are encouraged to read, understand, and use the information in the footnotes to support your
arguments in answering questions in the future.
1.2 DEFINITION OF THE LAW OF DAMAGES

Page 20 of 178
There is no single uniform definition of the law of damages out there. However, it is crucial to establish from
the outset that the law of damages is largely a field of the law of obligations.
The authors of your PT are of the view that it is the field of law that deals with the existence, extent and the
proper amount of damages that are awarded in each proven case of a delict, breach of contract or any other
legally accepted forms of damage (see page 1 of the PT). It is critical that you read other sources and
compare the definition in your PT and establish for yourself, what you think best defines the law of damages.
It may be too early in your studies to start formulating your own definitions, nonetheless we encourage you
to do the same as it enhances your understanding of this exciting module.
1.3 NATURE AND SCOPE OF THE LAW OF DAMAGES

The law of damages delineates the content of an obligation to pay damages and or satisfaction. Like any
other field of law you have studied thus far, it will always be impossible to demarcate with surgical precision,
the boundaries between the law of damages and other closely related fields of law.
1.4 THE OBJECT AND SYSTEM OF THE LAW OF DAMAGES

Read page 4 of the PT.
1.5 SOURCES OF THE LAW OF DAMAGES

On pages 6-9 of the PT, the authors deal with delict, contracts and legislation, as forming the basis of the
law of damages, alternatively as the sources of claims for damages and satisfaction.
Page 21 of 178
This is a reflective learning activity. You may opt to discuss your ideas with other students on the discussion
forum, or simply write your own understanding of the following questions:
ACTIVITY 1.1
Discuss the nature and sources of the law of damages.
Pages 9-25 of the PT deal with the history, development and specific terms used in the law of damages.
Like any other common law, it has a dual origin (Roman-Dutch and English law). It is important that you
read these pages. Presently there is a debate over the award of constitutional damages. The debate is
Page 22 of 178
whether such damages should ordinarily follow the common law principles or must develop their own
jurisprudence. We encourage you to contribute to this debate.
ACTIVITY 1.2
Relying on footnote 72, pages 7-8 of the PT, select any five statutes and indicate how they enable
individuals to rely on them to claim damages.
A quick look at any of the statutes you may have selected will show that these statutes in general, make
provision for the award of damages as a form of relief against specific wrongs committed by the defendant.
This goes to show that common law is not the only source of damages, but each field of law makes provision
for the use of damages as remedies for loss or harm suffered by the plaintiff.
Page 23 of 178
ACTIVITY 1.3
Log onto the Unisa library site or the Southern African Legal Information Institute (SAFLII) website at
www.saflii.org, download the following cases, read them carefully, and establish the attitude of our courts
towards constitutional damages.
ACTIVITY 1.4
Do you think that constitutional damages should be awarded for the infringement of the rights to one’s
dignity, freedom of movement and equality? Discuss with other students on the discussion forum.
Refer to the following:

Page 24 of 178
Fose v Minister of Safety and Security 1997 (3) SA786 (CC)

MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA)
Mahambehlala v MEC for Welfare, Eastern Cape Provincial Government 2002 (1) SA 342 (SE)
You may use other relevant recent court judgments in your argument.
A quick review of Fose will reveal that the Constitutional Court was reluctant to award constitutional
damages over and above common law damages as a means of punishing an organ of the state for their
failure to comply with their legal duties and deter future violations of citizens’ constitutional rights. The
Constitutional Court, however, left it open for the courts to create a fitting rubric upon which constitutional
damages could be claimed independent of any other common law damages. Constitutional damages could
not assume a punitive role, because presently, the South African justice system does not use normative
damages to punish the defendant. You should have further realised, that the Constitutional Court and other
Page 25 of 178
courts use the term “appropriate relief” to refer to constitutional damages.
1.6 CONCLUSION
In this lesson, the following concepts stood out: the nature and scope of the law of damages; its sources as
well as the fact that it dates back to Roman times. What is critical though, is the understanding of those
principles that govern the determination, assessment and quantification of damages in the modern South
African law of damages. It is our hope that each one of you correctly and effectively understood these
concepts.
Our next lesson looks at the concept damage. Summarise the most important aspects of this lesson in your
own words. This will be a constant feature throughout this module. It cements your understanding of the
concepts that have been learnt.
1.7 SELF-ASSESSMENT
To test and evaluate your knowledge of this lesson, complete the following self-assessment:
1.7.1. Write a summary of this lesson where you include the relevant sections of the textbook and other
Page 26 of 178
relevant authority mentioned in the lesson.

1.7.2. Go back to the lesson outcomes at the beginning and check if you have achieved them. In the event
that you did not, we advise you to re-read this section so as to get a good understanding of this lesson.
1.7.3 Make sure you have mastered the key concepts and terms that were listed at the start of the lesson.
1.8 REFERENCES
JM Potgieter, L Steynberg and TB Floyd Visser & Potgieter Law of Damages 3rd ed (2012) Juta.
You may use this link to log in online to the Unisa library website:
https://www.google.com/search?q=unisa+library+login&rlz=1C1CHNY_enZA889ZA889&oq=unisa+lib&aq
s=chrome.3.0j46j69i57j0l4j69i60.7445j0j4&sourceid=chrome
Page 27 of 178
LESSON 2
TITLE OF LESSON GENERAL PRINCIPLES OF THE LAW OF DAMAGES,

NATURE AND FORMS OF PATRIMONIAL LOSS
NOTIONAL STUDY 9
HOURS
NUMBER OF PLANNED 2
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)
NOTIONAL DESCRIPTION COMMENTS

STUDY (Insert relevant icons)
HOURS
Page 28 of 178
LESSON OUTCOMES
By the end of the lesson, students should be able to:
▪ define the concepts damage, patrimony and patrimonial loss

▪ establish different elements of patrimony
▪ identify and discuss various forms of patrimonial loss
▪ analyse the subjective and objective approaches to patrimonial loss
Lesson 2 will require nine hours.

Page 29 of 178
Use the textbook and other credible sources to compile the meaning of the following key concepts
and terms that would be used in the study of the law damages from now until the end of the semester.
understanding of this field of the law.
You will need to master the following key terms as part of achieving the learning outcomes for this
lesson:
Refer to the Multilingual Glossary provided under “Additional Resources” on the myUnisa module
site.
damage;
damages;
patrimony;
patrimonial loss;
non-patrimonial loss.
Page 30 of 178
INTRODUCTION
WAYS THROUGH
WHICH
PATRIMONIAL MEANING OF
LOSS MAY BE
CAUSED AND THE LOSS THE CONCEPT
VARIOUS “DAMAGE ”.
APPROACHES TO
SUCH LOSS
PATRIMONIAL
LOSS
2.1 INTRODUCTION
Welcome to Lesson 2 of the law of damages. The main purpose of this lesson is to set out the
working definition of damage as it is recognised in law and practice. It is important from the outset to
point out that there is no statutory definition of it at present. However, there is a preferred definition
Page 31 of 178
of the concept. Contrary to what may have been put forward by many writers, namely that damage
extends only over pecuniary or monetary loss, our case law has shown that this is not the case. Non-
pecuniary loss is considered as damage as well. It is critical that you also understand the concept
patrimony.
You should understand the difference between a juridical and factual concept of patrimony. You
should also find out why the juridical concept is preferred over the factual one.
You should further establish ways in which patrimonial damage may be caused. This is critical, in
that it informs the assessment thereof, which forms the subject of the next lesson.
In conclusion, you must distinguish between special and general damages in practice as well as
establish what subjective and objective views of damage (patrimonial loss) entail.
Read pages 27-50 of the PT to establish the meaning of damage.
2.2 MEANING OF THE CONCEPT “DAMAGE”

There is no single, uniform definition of the concept damage, the PT describes it as “the diminution,
Page 32 of 178
as a result of a damage-casing event, in the utility or quality of patrimonial or personality interest in

satisfying the legally recognized needs of the person involved”. It is crucial that you understand the
different elements of damage as outlined in your PT.
The concept damage (damnum), may be traced back to the Roman lex Aquilia in 287 BC. It has
developed over the years and is used in a number of legal fields in South Africa today, such as the
law of: delict; contract; insurance; enrichment and many others. It has also been described as the
difference between the present patrimony of the plaintiff and the patrimonial position which could
have been present had there been no damage-causing event. This definition overlooks the fact that
in South Africa, our courts accept a wide concept of damage which includes patrimonial and non-
patrimonial loss. The PT examines the differences between patrimonial and non-patrimonial loss. A
discussion on damage and wrongfulness sets the scene for an understanding of the relationship
between these two important concepts. Because it is accepted that damage in a sense reduces
legally recognised interests, it therefore follows that illegally obtained patrimony cannot be protected
by the law of damages. Damage is not dependent on fault, or blameworthiness of the defendant.
However, where contributory negligence is raised, the fault of the plaintiff and joint wrongdoers is
considered.
ACTIVITY 2.1
Page 33 of 178
2.1.1 Indicate the differences between patrimonial and non-patrimonial loss.

2.1.2 Is there a relationship between damage and fault? Discuss.
The PT provides a very clear distinction between patrimonial loss and non-patrimonial loss.
Basically, the first is easily convertible to money and does have a pecuniary effect on the estate of
the plaintiff, whereas, the other has no direct effect on the estate of the plaintiff and may not be
converted to monetary loss easily.
2.3 PATRIMONIAL LOSS
Read Pages 51-61 of the PT.
The authors deal with the concept, patrimonial loss. It manifests itself in the reduction of the utility of
the plaintiff’s patrimony. A number of definitions of patrimony are put forward. The authors accept
that patrimony entails the positive and negative elements of someone’s estate. This, they argue, is
Page 34 of 178
the legal concept of damage.
Pages 62-69 of the PT examines ways through which patrimonial loss may be caused and the
various approaches to such loss.
Activity 2.2
There is support in case law for a subjective approach to determining damages. Explain the
arguments in support of the objective approach. You will need to engage with the following cases.
Page 35 of 178
Log onto the Unisa library site or the Southern African Legal Information Institute (SAFLII) website
at www.saflii.org, download the following cases and read them carefully:
Rudman v Road Accident Fund 2003 (2) SA 234 (SCA)

Erasmus v Davis 1969 (2) SA 1 (A)
Damages are assessed from either an objective or subjective view. The subjective view looks into
the personal circumstances of the plaintiff after the damage-causing event, whereas, the objective
approach looks at what could reasonably be expected to be the consequence of a specific damage-
causing event. You should further understand that in any event, damages are determined on a case
by case analysis. Each case is unique.
2.4 CONCLUSION
Patrimonial loss consists in the diminution of a patrimonial interest in satisfying a legally recognised
Page 36 of 178
need of the person entitled to such interest. Legal recognition is key, in that certain loss, which is not
legally recognised is not seen as a damage to one’s patrimony (stolen property and illegal earnings
are not recognised in law and hence may not be compensated). It is our hope that you correctly
understood loss of patrimony, reduction in value, creation and acceleration of debt as ways by which
patrimonial loss occurs. Past and future damage as well as pure economic loss form the different
forms of loss which are distinguishable from the ways by which loss occurs. This lesson, as pointed
out above, prepares you for Lesson 3 which focuses on the assessment of patrimonial loss.
2.5 SELF-ASSESSMENT
To test and evaluate your knowledge of this lesson, complete the following self-assessments:
2.5.1. Write a summary of the most important aspects identified in this lesson.
2.5.2 Go back to the lesson outcomes at the beginning of this lesson and check if you have achieved
them all. In the event that you did not, we recommend that you re-read this section so as to get a
good understanding of this lesson. Make sure you have mastered the key concepts and terms that
were listed at the beginning of the lesson.
Page 37 of 178
2.6 REFERENCE
Page 38 of 178
LESSON 3
?
NATURE AND ASSESSMENT OF PATRIMONIAL LOSS

TITLE OF LESSON ASSESSMENT OF PATRIMONIAL LOSS
NOTIONAL STUDY HOURS 8
NUMBER OF PLANNED 2
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF ASSESSMENT- NONE

LINKED ACTIVITIES

ACTIVITIES
(Where

HOURS
Page 39 of 178
LESSON OUTCOMES
At the end of the lesson, students should be able to:

▪ explain the use of the comparative method in assessing patrimonial loss in practice
▪ discuss the sum-formula approach as a method of determining patrimonial loss
▪ evaluate the use of the concrete concept of damage in practice, as a way of assessing
damage
▪ distinguish between positive and negative interesse
▪ analyse specific principles used to measure damage in breach of contract
▪ establish, based on facts, when the proper date of assessment of damage may be fixed
▪ evaluate the influence of causation and contingences on the assessment of damage
Lesson 3 will require eight hours.

Page 40 of 178

Read the textbook and other credible sources to compile the meaning of the following key concepts
and terms that would be used in the study of the law damages from now until the end of the
semester. It is important that you study these terms extensively, as their knowledge and use imply
a better understanding of this field of the law.
damage-causing event;
the sum-formula approach;
concrete concept of damage;
positive interesse;
negative interesse;
contingencies.
You will need to master them as part of achieving the learning outcomes for this lesson:
Refer to the Multilingual Glossary provided under “Additional Resources” on the myUnisa module
Page 41 of 178
site as well.
SUM-FORMULA
ASSESSMENT
OF
CONTINGENCIES CONCRETE
PATRIMONIAL
CONCEPT
LOSS
ASESSEMNT IN
CASE OF
BREACH OF
CONTRACT
3.1 INTRODUCTION
Page 42 of 178
Welcome to Lesson 3 of the law of damages. The main purpose of this lesson is to understand
how patrimonial loss is assessed. Once damage or loss has been established, the next step is to
actually assess its impact on the plaintiff’s patrimony. This lesson focuses on how to assess or
calculate such loss. The correct approach is to assess the impact on one’s patrimony by comparing
what is left after the damage-causing event with what could have been but for the damage. This is
referred to as the comparative method.
Read pages 71-102 of the PT.
3.2 THE USE OF THE COMPARATIVE METHOD TO ASSESS PATRIMONIAL LOSS IN

PRACTICE
It is now settled that damages in delict and contract are assessed using the comparative method.
3.3 THE SUM-FORMULA APPROACH AS A METHOD OF DETERMINING PATRIMONIAL

LOSS
The sum-formula approach has been used for years to determine the nature and assessment of
patrimonial loss. It esssentially compares the present patrimonial loss with what could have been,
had there been no damage-causing event. On the other hand, the concrete concept of damage is
concerned with the deterioration of a particular part of someone’s patrimony. Even though there is
Page 43 of 178
no fundamental difference between negative interessse in delict and positive interesse in

contractual damages, there is a clear distinction betweeen positive and negative interesse in
contractual damages.
You must read and understand the sum-formula approach. This method presupposes that in order
to effectively measure the impact of damage, a calculation has to be made to establish by what
amount of money someone has to be compensated in order to place him or her in the same position
he or she would have been in (hypothetically), had it not been for the delict.
3.4 THE CRITICISM THAT HAS BEEN LEVELLED AGAINST THE SUM-FORMULA
APPROACH
You should understand the criticism that has been levelled against the sum-formula approach on
pages 76-78 of the PT.
3.5 MEASURING DAMAGE USING THE COMPARATIVE APPROACH AND INCORPORATING

THE USE OF THE CONCRETE CONCEPT OF DAMAGE
The ideal approach to measuring damage would be to use aspects of the comparative approach
and also incorporate aspects of the concrete concept of damage, which measures the diminution
or deterioration of a particular part of someone’s patrimony as a result of the damage-causing
event. In view of assessing the impact of the delict on patrimony, negative interesse is at issue,
whereas in calculating contractual damages, positive interesse takes centre stage.You must study
Page 44 of 178
and fully understand the differences between these two mutually exclusive concepts especially
when measuring contractual damages. The measure of contractual damages is fundamentally
unique in the sense that it takes into account various interests that the victim of a breach of contract
has, to claim from the defendant. You have to study and understand these concepts fully.
3.6 SPECIFIC PRINCIPLES USED TO MEASURE DAMAGE IN BREACH OF CONTRACT

We have already pointed out that positive interesse is used to assess damage in the case of
breach of contract. You should further understand a few other specific principles that are
incorporated into the assessment of damages, called interests. However, in instances where a
contract is cancelled by one party before it takes effect, there is reason to believe that negative
interesse is applied. Read case law and legal opinion on this matter. The prevailing view is that
negative interesse must be considered in instances where it is difficult to produce direct evidence
of positive interesse of the plaintiff.
3.7 PROPER DATE FOR THE ASSESSMENT OF DAMAGE

There lingers a question in litigants’ minds as to when the proper date for the assessment of
damage commences, once the damage has occurred. It is critical that the date must be established
so that the plaintff recieves the fullest possible compensation for the damage sustained. It must be
at the latest stage of the lawsuit where most, if not all, the evidence of damage has been submitted
to the court.The assessment of damage does not only deal with damnum emergens, but also
focuses on lucrum cessans. You are expected to analyse the different dates that have been put
Page 45 of 178
forward in both case law and legal opinion, in order to establish what is the best time to asses
damage.
3.8 THE INFLUENCE OF CAUSATION, HYPOTHETICAL CAUSATION AND CONTINGENCIES

IN THE ASSESSMENT OF DAMAGE
The last part of this lesson deals with the influence of causation, hypothetical causation and
contingencies in the assessment of damage. Causation entails what effectively causes damage
to one’s patrimony. In delict, it is the act that causes the deterioration or reduction in value and
utility of a particular part of the plaintiff’s patrimony. Various views are discussed on pages 94-96
of the PT. The ultimate conclusion is that damage is inseparable from causation. One cannot think
away one without the other disappearing and the establishment of one element necessarily leads
to the establishment of another. Read the examples in Chapter 4, paragraph 4.6.2 of the PT in
order to get a clearer view of this phenomenon.
A plaintiff may have a pre-existing condition that makes him or her more susceptible to injury and
the damage that occurs is then more extensive. In these cases, the so-called “thin skull” rule or the
“take your victim as you find him” rule applies. According to this rule, the defandant is liable for all
the damage that occurs even though the damage is now more extensive because of the pre-
existing condition. The effect of this rule is, however, tempered if it can be shown that the plaintiff
would have, later on, in any event, shown symptoms of the pre-existing condition. In such
instances, the courts will apply a contingency deduction which favours the defendant.
Page 46 of 178
Take note of the impact of supervening events in the assessment of damage. A fair and just
approach must be considered so as not to unnecessarily prejudice the plaintiff (see pages 99-100
of the PT). Also take note of the posible application of hypothetical causation, and the juridical
assessment of damage where hypothetical causation is established. Closely related to hypothetical
causation is the concept of past and future contingencies. These are likely events post the damage-
causing event. Future contingencies are applied in the assessment of lucrum cessans.
Activity 3.1
When is the best possible date for the determination of damage? Discuss fully. Consider important
cases such as General Accident Ins Co SA Ltd v Summers 1987 (3) SA 577 (A). Read also footnote
151 on page 92 of the PT.
Generally, damage is assessed as at the date of the wrong. However, some damage manifests
itself at a later stage. It is correct to assess damage at any time when all facts have come to light,
related to the extent of the damage caused by a single damage-causing event.
Page 47 of 178
A number of events happen between the date of the delict and the judgment date. Further, there
could be other pre-morbidities that affected the plaintiff prior to the damage-causing event. Such
events are factored into the assessment of damages as contingencies. It is crucial to realise that
these contingencies are not always negative events.
Activity 3.2
Consider the following scenario and answer the question.
Read also AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A)
X, an unemployed 35 year-old male, is involved in a motor vehicle accident and fractures his right
Page 48 of 178
leg. Doctors reveal that it has to be amputated. In a claim for loss of earning capacity, which past
and future contingencies may the court consider? In your answer, consider the evidence that
comes to light with regard to the plaintiff’s professional and social conduct before the damage-
causing event.
This activity tested your understanding of the application of the past and future contingencies in
the assessment of lucrum cessans and other future forms of damage. Indeed, issues very personal
and specific to the plaintiff that come to light during the trial, which issues have either a negative or
positive impact on his claims would be considered.
3.9 CONCLUSION
The assessment of patrimonial loss is not a straightforward process. As already shown, a number
of skills from various disciplines have to be employed to assist the court to make a fair and just
determination of the value of damage in each case. A number of juridical considerations also form
part of the matrix that is the assessment of patrimonial damage. It is crucial that you understand
the theory behind all these scientific and juridical considerations, so that you gain a better
understanding of the approach to computation of damages in practice. We hope that you
understood this part of the law of damages. Our next lesson focuses on the nature and assessment
of non-patrimonial loss. It must be very interesting, considering what you already know from this
Page 49 of 178
chapter. Most of these concepts, as you will find out, are interrelated.
3.10 SELF-ASSESSMENT
3.10.1 Write a summary of the lesson where you refer to relevant sections of the PT, case law, and
legal opinion, in order to establish your understanding of what was learnt.
3.10.2 Go back to the lesson outcomes at the beginning of the lesson and check if you have
achieved them. In the event that you did not, we advise you to re-read this section so as to get a
good understanding of this lesson.
3.10.3 Make sure you have mastered the key concepts and terms that were listed at the start of
the Lesson.
3.11 REFERENCES
Page 50 of 178
LESSON 4
TITLE OF LESSON NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS
NOTIONAL STUDY 9
HOURS
NUMBER OF PLANNED 3
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF 1
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)

HOURS
Page 51 of 178
LESSON OUTCOMES
▪ define non-patrimonial loss and explain its importance as part of the concept of
damage
▪ discuss the relationship between patrimony and personality interests
▪ Identify various forms of non-patrimonial loss caused by the infringement of physical-
mental interests
▪ discuss the theories on the nature of non-patrimonial loss caused by the injury or
impairment to the physical-mental integrity of the plaintiff
▪ assess the injury to personality in cases of iniuria affecting the body
▪ further identify and explain the criteria used to measure loss suffered as a
result of defamation, insult to dignity, and infringement of other personality
rights
Page 52 of 178
Lesson 4 will require approximately nine hours.
Use the textbook and other credible sources to compile the meaning of the following key
concepts and terms that would be used in the study of the law damages from now until the end
of the semester. It is important that you study these terms extensively, as their knowledge and
use imply a better understanding of this field of the law.
You will need to master the following key terms as part of achieving the learning outcomes
for this lesson:
Refer to the Multilingual Glossary provided under “Additional Resources” on the myUnisa
module site.
Page 53 of 178
non-patrimonial loss;
general damages;
personality interests;
actio iniuriarum;
damnum emergens;
lucrum cesans;
solatium.
Page 54 of 178
PATRIMONY
AND
PERSONALITY
RIGHTS
NATURE AND LOSS CAUSED BY

CRITERIA TO ASSESSMENT INFRINGEMENT
ASSESS INIURIA OF NON- OF PHYSICAL
CASES PATRIMONIAL MENTAL
LOSS INTERESTS
THEORIES ON
THE NATURE OF
NON-
PATRIMONIAL
LOSS
4.1 INTRODUCTION
Welcome back. This lesson is primarily concerned with the nature and assessment of non-
patrimonial loss. The concept non-patrimonial loss is sometimes referred to as immaterial
damage, injury to personality or simply non-pecuniary loss. The injury does not directly affect
Page 55 of 178
one’s patrimony. It consists in the diminution, as a result of a damage-causing event, in the

quality of a personality interest of the plaintiff in satisfying his or her legally recognised needs.
Read the definition on page 103 of the PT to get further clarity on the nature of this injury or
loss.
Further reading of the PT will reveal the characteristics of injury to personality, forms of non-
patrimonial loss on account of the infringement of the physical-mental interests and how these
are assessed. Lastly, you need to establish, upon reading paragraph 5.6.2, the different
theories that are used to asses non-pecuniary loss caused by the impairment of the physical-
mental integrity of the plaintiff.
Before we conclude, we refer you to the very important remedy, the actio iniuriarum in cases
of defamation. This part of the lesson is very important as it introduces you, briefly, to the law
of personality rights. The law of personality rights is a standalone field of law that you may
encounter only when you take this module at an advanced level. Suffice it to say that you will
only encounter a part of it right now, as far as it relates to non-patrimonial loss.
Page 56 of 178
4.2 NON-PATRIMONIAL LOSS AS PART OF THE CONCEPT DAMAGE

At the outset of these lessons, we pointed out that the South African legal system follows a
comprehensive concept of damage. If you have forgotten what this means, we recommend
that you revisit the first lesson. At the heart of this lesson is the discussion of the importance
of non-patrimonial loss in the concept damage.
4.3 THE RELATIONSHIP BETWEEN PATRIMONY AND PERSONALITY INTERESTS

Patrimonial and non-patrimonial loss form the comprehensive (or wide) concept of damage
that our courts and common law follow. However, the distinction between these two concepts
is not always apparent. In respect of non-patrimonial loss, the impairment of the personality
interests causes their utility to deteriorate. There are specific personality rights that are
recognised in South African law. Read Chapter 5, paragraph 5.3 of the PT. There is a very
close relationship between patrimonial and non-patrimonial loss, so much so that in certain
instances of damage, both these losses are evident. A case in point is the injury to the body.
Page 57 of 178
Non-patrimonial loss is experienced in pain and suffering, whereas, patrimonial loss is

manifested in the medical bills in case of hospitalisation. Please note also that non-patrimonial
loss can be incurred by juristic persons.
It is crucial to note that, the consideration of human consciousness leads to the examination of
both the subjective and objective elements of non-patrimonial loss. Identify the difference
between these two approaches on page 106 of the PT. Non-patrimonial loss is described as
general damage. Just like patrimonial loss, it consists of damnum emergens and lucrum
cessans.
Activity 4.1
What role, if any, does human consciousness or emotions play in the assessment of non-
patrimonial loss? In your answer, refer to the subjective and objective elements of non-
patrimonial loss.
We asked you this question to direct your mind to the ensuing discussion. There are various
Page 58 of 178
theories and contrasting judgments on this issue. On the one hand, a subjective approach will
be necessary to come to a conclusion that an unconscious person suffers no damage (non-
patrimonial) because there are no feelings to be considered. On the other hand, the objective
element is not affected by the loss of feelings. This concept will become clearer in the next
discussion.
4.4 NON-PATRIMONIAL LOSS ON ACCOUNT OF INFRINGEMENT OF PHYSICAL-

MENTAL INTERESTS
Physical injury is not loss, but it is only a source of actual loss. The loss is manifested in pain
and suffering, shock, disfigurement, loss of amenities and reduced expectation of life. Even
though the injury may manifest itself in a number of different forms, courts may award a single
or global amount of compensation. All pain, suffering and shock include both physical and
mental pain. Please note the intersection between this part of the law of damages with civil
procedure rules you learnt in your 2nd and 3rd level modules on civil procedure. In terms of the
Uniform Rules of Court 18(10) and Magistrates’ Court Rules 6(9), a plaintiff who claims for pain
and suffering must explain if the pain is temporary or permanent, and by which specific injuries
they were caused. We urge you to revisit these rules, as they form part of your examinable
Page 59 of 178
material.
We encourage you to do a thorough study of the concepts, shock, disfigurement, loss of
amenities and shortened life expectancy as forms of non-patrimonial loss, so as to understand
them fully. They form an integral part of the Road Accident Fund claims that we will study in
the next lessons which deal with third-party compensation law.
Read pages 113 -117 of the PT.
4.5 THEORIES ON THE NATURE OF NON-PATRIMONIAL LOSS CAUSED BY THE

INJURY OR IMPAIRMENT TO THE PHYSICAL-MENTAL INTEGRITY OF THE PLAINTIFF
This part of your PT deals with the theories on the nature of non-patrimonial loss caused by
the injury or impairment to the physical-mental integrity of the plaintiff. The understanding of
these theories have both theoretical and practical significance. These are the abstract
(objective) theory, personal (subjective) theory and the personal-function theory. There is
uncertainty as to whether only the subjective theory must be used to determine the loss
suffered by an unconscious plaintiff. English law makes provision for a nominal award and a
similar position is followed in Germany and Australia. There is doubt if South African law would
follow the same line of thinking, as our legal system does not subscribe to punitive damages.
Page 60 of 178
Study the following cases
Log onto the Unisa library site or the Southern African Legal Information Institute (SAFLII)
website at www.saflii.org, download the following cases, and read them carefully:
Southern Insurance Association Ltd v Bailey 1984 (1) SA 98 (A)

Collins v Administrator, Cape 1995 (4) SA 73 (C)
Activity 4.2
Identify and explain the different theories that are applied to establish the nature of non-
patrimonial loss caused by the impairment of physical-mental integrity.
Page 61 of 178
These theories are found on pages 113-116 of your PT. Please refer to case law to shed light
on how these important interpretational approaches have been used by our courts in the past.
On pages 114-117 of the PT, the authors examine a very important aspect of the assessment
of non-patrimonial loss where the individual is unconscious and has a changed personality –
the so-called cabbage and twilight cases. Right at the end of this sub-topic, the authors, relying
on legal opinion, propose that both the subjective and objective approaches must be used, to
collect all the evidence that point towards loss, in order to come to an award that would possibly
place the plaintiff in as close as a position he or she would have been before the damage or
loss.
It is difficult to follow their reasoning of trying to apply the principle of assessing patrimonial
loss in determining non-patrimonial loss. To begin with, one receives damages and the other
solatium. Patrimonial loss is easily quantifiable or comparable to money whereas the other is
not. It is suggested that we keep an open mind, at this stage, as to how quantification of non-
patrimonial loss will be explained in later lessons. Suffice it to say that it is not always easy to
determine non-patrimonial loss. Courts often use a round figure or global amount, based on
the evidence presented and proven facts of each case.
Page 62 of 178
Activity 4.3
Which theory must be applied to determine the quantum of non-patrimonial damages of a
patient lying unconscious in the hospital bed?
See paragraphs 5.6.3 and 5.6.4 of your PT. There is a proposal that our courts should apply a
nominal amount of damages as an award for objective satisfaction even though the plaintiff
may have very little or no form of consciousness. In practice, courts do not separate the sum
awarded for non-patrimonial loss as a result of affective loss from other non-patrimonial claims.
Page 63 of 178
4.6 INJURY TO PERSONALITY IN INIURIA AFFECTING THE BODY

Any substantial infringement of the body where the aspect of physical harm is paramount,
either accompanied by violence or not, is seen as an iniuria. Whereas contumelia is often a
part of the physical infringement that causes iniuria, it is not a requirement. Physical and mental
infringement resulting in iniuria, deprivation of bodily liberty and seduction are discussed in the
PT. Read and ensure that you understand them.
4.7 DEFAMATION
Our focus now shifts to defamation. Defamation consists in the impairment of the plaintiff’s
good name and/or reputation in the community, as a result of the defendant’s actions. The
reasonable person test is applied to determine defamation. Read Le Roux v Dey 2011 (3) SA
274 (CC) to establish if separate actions for iniuria could be applied where a single action by
the defendant causes more than one form of personality infringement. The use of the
reasonable person test (objective test) in determining defamation, provides for the
basis/theoretical foundation for the existence of loss (on account of defamation) suffered by
juristic persons.
Page 64 of 178
Infringement of dignity lies with the subjective feelings of dignity or self-worth of the plaintiff.
The plaintiff must prove that he actually felt insulted by the actions of the defendant. The extent
of the impairment of feelings is concomitant with someone’s standing in life. Infringement of
the right to feelings consists in different forms of iniuria other than that connected to dignity.
Read and write down your own notes on the various forms of infringement to feelings that are
recognised in South African Law.
4.8 CONCLUSION
Law has changed with regard to adultery as an iniuria. We will provide you with case law that
sheds light on this concept, later in the year. This lesson highlighted the various theories that
determine the nature and assessment of non-patrimonial loss. It became evident that non-
patrimonial loss is a form of damage, in that it disturbs the quality of the plaintiff’s legally
recognised needs. This means that the impaired interests can no longer satisfy the plaintiff’s
justified expectations. The use of a combination of subjective and objective approaches in
determining the extent of the loss suffered by the plaintiff results in a fair and objective
determination of an award in each claim for patrimonial loss. We further alluded to the various
forms of non-patrimonial loss caused by the impairment or infringement of physical-mental
interests. Upon reading case law, you should have realised that South African law does not
follow a penal system in the award of damages. As a result, nominal damages have not been
Page 65 of 178
commonly awarded in instances where the plaintiff is permanently unconscious. Now that you
understand both patrimonial and non-patrimonial loss, our next lesson focuses on the nature
of prospective damage, in respect of both patrimonial and non-patrimonial loss.
4.9 SELF-ASSESSMENT
4.9.1 Write a summary of the lesson where you refer to relevant sections from the PT, case
law, and legal opinion, to establish your understanding of what was learnt. You should pay
close attention to the nature of patrimonial loss, especially the different approaches that are
used to determine such loss.
4.9.2 Go back to the lesson outcomes at the beginning and check if you have achieved them.
In the event that you did not, we advise you to re-read this section so as to get a good
understanding of this lesson.
4.9.3 Make sure you have mastered the key concepts and terms that were listed at the
beginning of the lesson.
Page 66 of 178
4.11 REFERENCES
JM Potgieter, L Steynberg and TB Floyd Visser & Potgieter Law of Damages 3rd ed (2012)
Juta.
Page 67 of 178
LESSON 5
TITLE OF LESSON PROSPECTIVE DAMAGE AND LUCRUM CESSANS
NOTIONAL STUDY 7
HOURS
NUMBER OF PLANNED 2
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where

HOURS
Page 68 of 178
LESSON OUTCOMES
By the end of this lesson, students should be able to:
▪ define prospective damage
▪ describe, the impact of prospective loss on the entire concept of damage
▪ identify and describe various forms of prospective loss found in practice
▪ evaluate the principles that guide the recovery of prospective loss
Lesson 5 will require approximately seven hours.

concepts and terms that would be used in the study of the law of damages from now until
the end of the semester. It is important that you study these terms extensively, as their
knowledge and use imply a better understanding this field of the law. Also refer to the
Multilingual Glossary provided under “Additional Resources” on the myUnisa module site.
Page 69 of 178
for this lesson:
prospective damage;
lucrum cessans;
PROSPECTIVE
LOSS AND ITS
IMPACT ON
DAMAGE
APPLICATION
PROSPECTIVE FORMS OF
OF
DAMAGE AND PROSPECTIVE
PROSPECTIVE
LUCRUM LOSS FOUND
LOSS IN
CESSANS IN PRACTICE
PRACTICE
PRINCIPLES
THAT GUIDE
RECOVERY OF
PROSPECTIVE
LOSS
Page 70 of 178
5.1 INTRODUCTION
Welcome once again. This is our fifth lesson on the law of damages. We hope you are
beginning to understand where we are going with this module. What we discussed
previously, was aimed at laying the foundation of some of the practical aspects of assessing
damage that we will continue with in this lesson. In this lesson, the focus will be on the
concept prospective loss. Prospective loss has not been extensively defined in legal
literature. Some writers have defined it as loss which has not been sustained at the time of
assessment. It includes a range of concepts, among others, a frustration of future
expectations, future expenses and any other loss, which with a sufficient degree of
possibility, will materialise after the date of assessment, which itself is a result of an earlier
damage-causing event. Damage is not always a past event. It is critical that you realise that
prospective loss consists of present and future elements. The assessment of prospective
loss should be based on the comparison of the hypothetical course of events before and
after the damage-causing event. You will have to read material on this concept in-depth.
This concept will be followed by a discussion on different and recognised forms of
prospective damage. We will conclude this lesson with a detailed analysis of a range of
principles that guide the assessment of prospective loss.
Page 71 of 178
5.2 NATURE OF PROSPECTIVE LOSS

Prospective loss or damage consists of patrimonial and non-patrimonial loss. Damage may
fall into different time intervals or periods. Read page 130 of the PT (second paragraph), to
get the sense of the specific times or periods during which damage occurs. We have already
indicated that prospective damage has a present and future element. Make sure you
understand what this means. Suffice it to say that, even though prospective damage will
manifest itself in the future, its basis is to be found in the plaintiff’s current circumstances
which have been caused by the damage-causing event. In practice, there is a difference
between damage that will materialise over a period of time in future, and the damage that
would come as a complete package. Read footnotes 22-23 on page 131 of the PT to get a
full picture of these two related concepts.
Paragraph 6.3 (in Chapter 6 of the PT) dealing with the assessment of prospective loss, is
closely related to the sum-formula approach that we have discussed in previous lessons.
Should you have problems understanding it, we encourage you to go back to the lesson on
Page 72 of 178
the nature and assessment of patrimonial loss, especially the principles connected
therewith.
5.3 FORMS OF PROSPECTIVE LOSS RECOGNISED IN LAW AND PRACTICE

Future damage, notwithstanding the idea that it only manifests later in time, is assessed on
the date of the trial. We hope you understand the distinction between damage and damages.
If you have since forgotten, go back to the glossary of terms provided as well as the ones
you compiled in the previous lessons. The question you may have in mind is why award
damages on the date of the trial for damage that is yet to occur? The answer lies in the
“once and for all rule” that we will deal with in the next lesson. Make sure that you understand
its application, because it is always applied by the courts when they award damages. As a
legal practitioner, you will do well to put together both past and future damages for your
clients before the trial court since you only have a single chance to claim all the damages
which arise from a single cause of action.
There are five instances of prospective loss recognised in practice which all emanate from
a damage-causing event, namely:
Page 73 of 178
1. future expenses
2. loss of income
3. loss of business, contractual or professional profit
4. loss of prospective support
5. loss of chance
Please note that prospective loss may arise in respect of injury to personality in a similar
fashion as the recognised past losses where an infringement of someone’s physical integrity
(for example, due to an accident and physical assault) has occurred. Such loss is
compensable as well. Examples of those losses include, future pain and suffering, nervous
shock, loss of amenities of life as well as disfigurement. Shortened life expectancy is
generally regarded as an example of future loss.
It is trite that prospective loss is not a standalone claim. Read footnote 62 on page 136 of
the PT. The cause of action must have created present or past loss already.
Activity 5.1
Read and engage with the following scenario:
Suppose that X, who is HIV positive, engages in unprotected sex with B, thus exposing her
Page 74 of 178
to AIDS-related diseases. Furthermore, suppose that there is a less than 30% proven
chance that B will subsequently suffer a terminal illness. Would you, as a legal practitioner
advise B and or her children that they should sue X for prospective shortened life
expectancy? Would the situation be different if B immediately suffers an illness associated
with HIV? Suppose B dies shortly afterwards, would B’s legal practitioners be able to claim
future loss on her behalf posthumously? Discuss with your peers in the group forum. Read
page 138 of the PT to get a view of what is preferred in practice.
By now you should have a very clear idea that prospective loss is not a standalone claim. It
is based on damage that has already happened. In the case of X, she is yet to suffer an
HIV-related illness. There is no damage to base her claim. A further indication that there is
less than 50% chance of falling sick, further makes the claim a remote possibility. The
situation would have been different if she fell sick immediately after being exposed to HIV/
AIDS. It is not possible to claim for shortened life posthumously.
We recommend that you make notes from the discussion forum on this topic.
Read page 138 of the PT to get a view of what is preferred in practice.
Page 75 of 178
5.4 PRINCIPLES OF ASSESSING PROSPECTIVE LOSS

In practice a variety of specialist witnesses are called to assist the court to arrive at a
decision with regard to the computation of future loss. However, the ultimate award given
by the courts depends on speculation. Please note that, even though it is a requirement that
the plaintiff claims once and for all, including future damages, third-party compensation law
makes provision for the payment for future hospital expenses as and when they arise,
including payment for loss of support and income in instalments.
Read paragraph 6.7.2 to understand the application of probabilities in the quantification of

future losses, and proof thereof required on a balance of probabilities.
Our courts also apply contingencies in the assessment of future loss. Contingencies include
possible relevant independent events (not connected to the defendant’s actions), which if
they were to materialise, would affect the plaintiff’s recognised legal interests. They are
taken into account over a particular period of time. Provision for contingencies falls on the
discretion of the court. The burden of proving a contingency is on the defendant, and the
Page 76 of 178
plaintiff should rebut it. General contingencies are no more than 20%. Actuaries must reveal
on what they based their calculations for general contingencies. You should understand
what special contingencies are and how they are assessed. The theoretical explanation of
contingencies is that although the damage-causing event is the cause of the loss, there are
other circumstances that could have caused the same if not similar loss in future.
Courts also consider events that arise between the dates of the damage-causing event to
the trial date. Facts are more valuable than pure speculation. Any change in the
circumstances from the time of damage to the date of trial, must be taken into account in
order to arrive at a fair value of damages. The taking into account of all these events, you
must understand, stems from the fact that the assessment of general damages cannot be
proved with mathematical precision.
CONFLICT OR CONFLATION OF ISSUES? DECIDE
Activity 5.2
It is a general principle that damages must be assessed at the time of the damage-causing
event. The authors of your PT think that the principle of considering events between the date
of delict and date of trial is in conflict with this general principle. Do you agree? Discuss fully.
Page 77 of 178
Speaking frankly, this principle might have thrown you back. Read footnote 125 on page
147 of your PT. You will realise that the general principle of computing damages at the time
the delict happened does not nullify the consideration of supervening events. The answer
therefore to the above question is NO. Far from what the authors of the textbook seem to
suggest, the general principle of assessing loss as at the date of the delict is not applied to
all situations, especially where there is evidence that circumstances have arisen that have
had an impact on the assessment of prospective damage, since the damage-causing event.
Discounting, capitalisation and annuity calculation are used in the computation of future
loss. Specific annuity and discount tables are used to reduce what the plaintiff receives in
advance, in order to counter the advantage of receiving the income prior to its date of
realisation. There seems to be no agreed interest rate in computing annuity. Parties often
agree and will apply expert opinion where there is a dispute.
Please note that actual and not potential profits must be proven in loss of profit on account
of damage to property or business. With regard to the loss of chance, the court makes a
reasonable and fair award. Further take note that the duty to mitigate damage, inflation,
interest, tax and collateral source rule are critical in the assessment of loss of business and
Page 78 of 178
profit.
5.5 CONCLUSION
We hope you understood this lesson. As a matter of fact, the assessment of both patrimonial
and non-patrimonial future loss requires very close attention to detail, with regard to all the
important events that would assist the court to come to a fair and just award, based on the
circumstances. It is critical to note that expert evidence in such circumstances is valuable
and important to the court. This calls on legal practitioners not only to realise the importance
of mathematical skills, but to further understand how such skills come to bear on their day
to day activities that involve the computation of damages. We further draw your attention to
our next lesson, that deals specifically with the “once and for all rule” as a principle that
bears on the computation of damages.
5.6 SELF-ASSESSMENT
5.6.1 Write a summary of the lesson where you refer to sections from the PT, case law and
Page 79 of 178
legal opinion in order to establish your understanding of what was learnt. Include the most
important principles of assessing prospective loss you leant in this lesson.
achieved them. In the event that you did not, we advise you to re-read this section so as to
get a good understanding of this lesson.
5.7 REFERENCES.
Juta.
Page 80 of 178
LESSON 6
TITLE OF LESSON THE ONCE AND FOR ALL RULE
NOTIONAL STUDY 7
HOURS
NUMBER OF 2
PLANNED SELF-
REFLECTIVE
ACTIVITIES
NUMBER OF 1
ASSESSMENT-
LINKED ACTIVITIES

ACTIVITIES
(Where necessary)

HOURS
Page 81 of 178
LESSON OUTCOMES

• explain the “once and for all rule”
• analyse the criticism levelled against the application of the “once and for all rule” in
practice
• evaluate the practical importance of the “once and for all rule”
• understand the concept “cause of action”
• identify circumstances where the “once and for all rule” does not apply

Page 82 of 178
knowledge and use imply a better understanding of this field of the law. Also refer to the
for this lesson:
prescription;cession;
concurrence of claims;
cause of action;
nuisance;
subsidence cases;
subrogation;
Page 83 of 178
NATURE OF
ONCE AND
FOR ALL RULE
THE ONCE CRITICISM

EXCEPTION TO AGAINST THE
THE RULE AND FOR ONCE AND
ALL RULE FOR ALL RULE
iTS
IMPORTANCE
TO A CLAIM
OF DAMAGES
6.1 INTRODUCTION
We are glad to welcome you once again. As mentioned previously, this lesson focuses on
the “once and for all rule”. This rule was derived from the English law principles, and has
been applied in South Africa over a long period of time. Upon reading and understanding
Page 84 of 178
this principle, you will have to defend its application against the negative criticism that it
has received from other authors. You will only be able to do so after you have discovered
its practical implications, from reading your PT and case law that supports its application.
You will further notice that the application of “the once and for all” principle intersects with
the cause of action. You are therefore expected to deconstruct and interpret the concept
cause of action, with a view to establishing its practical significance in the application of
the once and for all rule. The last part of this lesson requires you to consider some practical
examples of causes of action where the “once and for all rule” either applies or does not
apply.
Read page 153, footnote 1 of the PT.
6.2 “THE ONCE AND FOR ALL RULE”

The “once and for all rule” has practical legal implications. This part of your text discusses
these implications. In the activity below, explain the practical implications on the left-hand
side of the column and the authority or case law that supports it on the right-hand side of
the column.
Page 85 of 178
Activity 6.1
Re-organise information you gathered from footnote 1 about the practical importance of
the “once and for all rule” into a table form.
Practical implications Authority
For example, a plaintiff cannot claim Custom Credit Corporation v Shembe 1972
compensation in a piece meal fashion. (3) SA 462 (A) 472.
Please note that each case mentioned in the footnote deals with a specific reason for the
support of the application of the “once and for all rule” in the claim for damages. You are
advised to record these reasons as they appear in these cases.
At this point you have gathered support for the application of the “once and for all rule”
Page 86 of 178
from case law. We encourage you to log onto the Unisa library website, download and read
those cases in-depth. It is not enough that you simply record them as you did in the table
above. If you are to gain an in-depth understanding of this concept, study those cases
further, establish the ratio decindi of the court and not just record the principle.
6.3 CRITICISM LEVELLED AGAINST THE APPLICATION OF THE “ONCE AND FOR
ALL RULE”
Read the criticism that some authors have levelled against the application of this rule on
pages 154-155 of the PT. Make suitable notes.
Activity 6.2
Write a well-balanced argument where you defend the continued use of the “once and for
all rule”. Share your views with the other students in the group discussions.
This activity required you to discuss the views you collected and placed on the table in the
previous activity. We simply ask you to draft a very clear argument that utilises those ideas.
Page 87 of 178
6.4 PRACTICAL IMPLICATIONS OF THE “ONCE AND FOR ALL RULE”.
Read paragraph 7.3 of the PT for practical implications of the “once and for all rule”. Make
suitable notes.
Prescription begins to run, in all cases of delictual and contractual damages, when the
cause of action arises and the obligation or debt with regard to payment of damages
accrues. Debt does not denote cause of action. Read footnote 27, page 155 of the PT to
get a clearer understanding of the difference between these two terms. Also read section
12(3) of the Prescription Act 68 of 1969 to get an understanding of when prescription in
general, begins to run.
Read Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) and establish if
section 12(3) of the Prescription Act applies to third-party compensation claims or Road
Accident Fund claims. In general, a claim prescribes after three years. Where damage has
Page 88 of 178
occurred, the plaintiff is supposed to claim once and for all, for all damage already
sustained and the damage that is expected in future. No cause of action that has prescribed
may be sought to be introduced in a fresh claim.
A plaintiff has to make a proper assessment of all his or her claims (present and future)
which arise from the same cause of action and claim all of them at once. Thus there is only
one opportunity to claim for all loss.
In instances of cession, it is critical that you note that claims that arise out of the same
cause of action, cannot be ceded separately.
6.5. CAUSE OF ACTION
Read Chapter 7, paragraph 7.4 of the PT.
The cause of action exists when all the facta propanda, thus facts related to its existence
are present. In delictual and contractual claims, facta probanda entails the substantive
elements of each case. See footnote 49 for the facta probanda of loss of support and pain
and suffering. These in fact (the elements) make up the claim. Go back to the first lesson
Page 89 of 178
and refresh your memory on the elements of damage. That way you will have a better
understanding of what elements make up the facta probanda for a delictual cause of action.
The next question that needs to be answered is when does a cause of action arise?
Prescription begins to run when the cause of action has arisen. In the law of damages, it
is safe to say that prescription begins to run when the first damage has occurred.
The next question to consider is when different claims are based on a single cause of
action? Read Chapter 7 paragraph 7.4.3 of the PT and investigate the instances when this
is possible. Following the decision of Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A),
it is generally accepted that the claims for bodily injury and loss of support are based on
different causes of action in third-party compensation cases. The one cause of action is
the date of the accident, and the other cause of action, is the date of death of the
breadwinner respectively.
6.6 APPLICATION OR NON-APPLICATION OF THE “ONCE AND FOR ALL RULE”
Read pages 165-185 of the PT for practical examples where the once and for all rule
applies and or does not apply. Read and discuss the following:
Page 90 of 178
1. Nuisance and continuing wrong – here study cases wherein it was held that it does
not apply.
2. Subsidence cases – the “once and for all rule” does not apply.
3. Where two losses (patrimonial and non-patrimonial loss resulted from a single
cause of action) it applies. Read case law here to understand what the reasoning of
the court was, despite the fact that the facts of the case were comparable to English
law. Further take note that in South Africa, the Road Accident Fund Act 56 of 1996
(RAF Act) has changed the position of non-patrimonial loss in regards to bodily
injuries suffered as a result of the motor vehicle accidents.
4. Third-party claims in terms of RAF Act 56 of 1996. Read section 17 of the Act and
the discussion that follows on pages 170-176 of the PT.
5. Breach of Contract – it applies. Establish the double-barreled principle in claims of
breach of contract, namely claiming specific performance and/or cancellation of the
contract with damages. Take note that fulfilment, cancellation, and damages do not
fall in a single cause of action. Each requirement for each contract constitutes a
cause of action in contractual damages.
6. Subrogation.
7. Statutory and other action.
8. Actions on iniuria.
9. Acts that infringe more than one personality right.
Page 91 of 178
Please note that the “once and for all rule” does apply generally but is inapplicable in a
number of instances identified for you above. Study these carefully as they play a
prominent role in the Multiple-Choice Questions that we set.
6.7 CONCLUSION
In claims for compensation or satisfaction arising out of delict, breach of contract and other
causes of action, the once and for all rule dictates that the plaintiff must once and for all,
claim damages already sustained and the ones expected in future which necessarily are
based on a single cause of action. You have traced, evaluated and defended the use of
this rule in practice. No doubt still lingers, that whereas it may not be applicable in some
situations, its importance far outweighs the criticism some authors have levelled against it.
We hope that you fully understood this lesson, as a norm, we then require you to
summarise it below. Our next lesson focuses on the principles that govern the
determination of damages in patrimonial loss. This is a very exciting topic. We will meet
you then.
6.8 SELF-ASSESSMENT
Page 92 of 178
To test and evaluate your knowledge of this lesson, complete the following self-
assessment:
law and legal opinion in order to establish your understanding of what was learnt.
6.8.2 Go back to the lesson outcomes at the beginning of this lesson and check if you have
achieved them. In the event that you did not, we advise you to re-read this section so as
to get a good understanding of this lesson.
start of the lesson.
6.9 REFERENCES
Juta.
Section 12(3) of the Prescription Act 68 of 1969
The RAF Act 56 of 1996
Page 93 of 178
LESSON 7
NATURE, ASSESSMENT, OBJECT AND FORMS OF DAMAGES FOR PATRIMONIAL LOSS

TITLE OF LESSON
NOTIONAL STUDY 6
HOURS
NUMBER OF PLANNED 3
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF 1
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)

HOURS
LESSON OUTCOMES
Page 94 of 178

• define the concept damages
• investigate the nature and form of damages
• analyse the object and operation of damages
• distinguish between satisfaction and punitive damages
• understand the nature of contractual damages
Lesson 7 will require approximately six hours.

concepts and terms that would be used in the study of the law of damages from now until the
end of the semester. It is important that you study these terms extensively, as their knowledge
and use imply a better understanding of this field of the law. Also refer to the Multilingual
Glossary provided under “Additional Resources” on the myUnisa module site.
Page 95 of 178
for this lesson:
affective loss;
restitution;
damages;
diminution;
aggravated, punitive, exemplary damages;
vindictive and penal damages;
nominal damages;
surrogate of performance;
mora interest;
in duplum rule.
Page 96 of 178
NATURE AND
FORM OF
DAMAGES
NATURE OF OBJECT AND

CONTRACTUAL DAMAGES OPERATION OF
DAMAGES DAMAGES
SATISFACTION
VS PUNITIVE
DAMAGES
7.1 INTRODUCTION
We are certainly thrilled to welcome you back to our seventh lesson. We encourage you to
cast your eyes on the first lesson we gave you on this module where we discussed the
concept damage. We further advise that you revisit the glossary of terms provided as well as
the ones you drafted where you defined the concept, damage. This will help you ease into
Page 97 of 178
this important lesson that introduces you to damages. As said earlier, damages do not
connote the plural of damage. You will have to study most of the sources that are set out on
pages 185-186 of your PT which define damages so as to establish your own working and
practical definition of damages. Damages must always be expressed in monetary terms.
There is a need for you to analyse the object and operation of damages so as to understand
the application of the various principles of calculating damages in respect of patrimonial loss.
It is further expected of you to establish South Africa’s position on punitive or penal damages.
Lastly, you must apply the principles of contractual damages to a set of facts.
7.2 DAMAGES AND QUANTIFICATION OF LOSS
For this part of your study, you should view damages as monetary compensation, obtainable
by success in an action for delict and or breach of contract, which compensation is payable
as a lump sum to the plaintiff. Please note that damages can take the form of instalments
and other forms of payment as advocated for in some statutes and other forms of relief. Its
aim is to neutralise loss by augmenting the existing patrimony. Restitution and interdict, just
to mention a few, are some forms of remedies where the plaintiff has suffered loss.
Page 98 of 178
Assessment of damages entails the process by which a specific amount of damages is

reached, where the law has found that damage (loss) did in fact exist. Once an amount of
damages has been determined, a few other principles are applied in order to arrive at a final
sum of damages.
Activity 7.1.
Read footnote 34, page 188 of the PT and list those principles that are applied in order to
arrive at a final sum of damages. Explain briefly what each of them means.
This is a means by which we seek to find out if you are still following the discussion. It is an
activity you should do in your workbook, and then continue with the lesson. In that same
footnote, you are referred to numerous paragraphs in your PT which you should consult to
complete this activity.
Page 99 of 178
Damages are paid in South African rands, and where they are expressed in foreign currency,
a conversion needs to take place. Read Chapter 8, paragraph 8.4 of the PT to find out when
the conversion should take place. Generally, damages are paid in a lump sum. However, you
should read section 17(4) of the RAF Act to establish the deviation from the norm that is
expressed in this statute. Read further, the Uniform Rules of Court 34A with regard to interim
payments. This aspect of damages is important for your understanding, as interim payments
have practical implications in a number of actions for damages where the individual needs
money on an urgent basis and the defendant has conceded liability.
Activity 7.2
Set out the factors that the court will consider in declaring an interim payment of damages in
an application made by the plaintiff, where liability for personal injury and/or death of a person
has been conceded by the RAF Act.
Read footnote 52 on page 191 of the PT to answer this question.

Page 100 of 178
7.3 THE OBJECT AND OPERATION OF DAMAGES

The object of damages is to place the plaintiff in as far as it is practicable, by payment of a
sum of money, in the same position he or she would have been in but for the delict. In cases
of patrimonial loss, a natural monetary equivalent and money may therefore allow actual
restoration of loss. Damages provide the fullest possible compensation for damage, not
absolute compensation. It is critical that you understand that the Aquilian action is available
only for patrimonial loss and not for affective loss, as the latter is covered by other actions.
Furthermore, damages cannot be used to compensate inconvenience that has no direct
monetary loss. Please note that the position with regard to claims for non-patrimonial loss is
covered in the next lesson.
It is trite that damages for compensation for the same loss may not be paid twice. Read
Chapter 8, paragraph 8.6 of the PT to understand this concept.
7.4 SATISFACTION AND PUNISHMENT IN DAMAGES

It is no longer possible to punish the defendant by means of an action for damages. Read
Page 101 of 178
the relevant provisions on the Conventional Penalties Act 15 of 1962. It is important that you
understand that those penalties are aimed at compensating the creditor as opposed to
punishing the debtor.
Activity 7.3
Read Fose v Minister of Safety and Security 1997 (3) SA 786 (CC). There is an ongoing
debate as to whether punitive constitutional damages should be awarded against
government entities where there is a clear and reckless intrusion of one’s protected
constitutional rights.
Evaluate what the court said about the application of punitive constitutional damages in the
current climate of neglect of people’s human rights. Share your thoughts with other students
in the group.
Punitive constitutional damages have not been awarded to date. In Fose the court conceded
that a new method of applying constitutional damages may be developed by courts. But it
Page 102 of 178
declined to issue punitive damages, which were additional to common law damages. The
applicant had sought to request the court to declare punitive constitutional damages in order
to show its disapproval and disgust at the lack of concern for human rights on the part of an
organ of state. Later cases have shown that indeed constitutional damages may be issued;
but it has as yet not issued punitive constitutional damages.
7.5 DAMAGES FOR PATRIMONIAL LOSS UPON BREACH OF CONTRACT
The object of damages in instances of breach of contract is to place the plaintiff in a position
he or she would have been in had the defendant performed properly and timeously in terms
of the contract. There is doubt as to whether damages may be used as an alternative to
specific performance. Read Chapter 8, paragraph 8.9.2 of the PT to understand the different
views of this argument. To enrich your understanding, read the differences between
compensatory, restitutionary and complementary damages.
Mora interest, calculation of mora interest as well is the in duplum rule, are important
principles that govern the assessment of contractual damages. It is important that you read
the sections of the PT that deal with them in detail in order to understand their application in
Page 103 of 178
the law of damages.
This marks the end of our lesson.
7.6 CONCLUSION
We hope that you understood the principles that govern the assessment of the damages in
patrimonial loss cases. What you should take from this is that damages is the word that is
used to describe a sum of money that a court may award to a successful plaintiff in an action
of delict or breach of contract. Further note that the object of awarding damages in delict is
slightly different from breach of contract. The principles are slightly different as well. We also
hope that you realised, upon reading the case law we referred you to that in the current legal
dispensation, punitive constitutional damages have not been awarded in South Africa. We
hope that you clearly understood the principles of contractual damages as indicated in the
body of the lesson. Our next lesson focuses on the assessment of damages and satisfaction
in non-patrimonial loss cases.
7.7 SELF-ASSESSMENT
To test and evaluate your knowledge of this lesson, complete the following self-
Page 104 of 178
assessment:
law and legal opinion in order to establish your understanding of what was learnt. Include the
important principles that govern the assessment of damages in cases where patrimonial loss
has been proven to exist. These summaries will help you prepare for the exams at the end
of the semester.
7.7.2 Go back to the lesson outcomes at the beginning and check if you have achieved them.
In the event that you did not, we advise you to re-read this section so as to get a good
understanding of these objectives
7.8 REFERENCES
Juta.
Road Accident Fund Act 56 of 1996
Conventional Penalties Act 15 of 1962
Page 105 of 178
LESSON 8
TITLE OF LESSON THE NATURE AND ASSESSMENT OF NON- PATRIMONIAL LOSS
NOTIONAL STUDY 7
HOURS
NUMBER OF PLANNED 3
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)
NOTIONAL DESCRIPTION comments

STUDY
HOURS
LESSON OUTCOMES
Page 106 of 178
• explain reparation of non-patrimonial loss

• discuss satisfaction in respect of non-patrimonial loss
• analyse the theories on the compensation of non-patrimonial loss
• differentiate between the concepts of damages and satisfaction as reparation for damage
• evaluate the relationship between compensation and non-patrimonial loss

Read the PT as well as other credible sources and compile the meaning of the following key
concepts and terms that would be used in the study of the law of damages from now until the
end of the semester. It is important that you study these terms extensively, as their knowledge
and use imply a better understanding of this field of the law. Also refer to the Multilingual Glossary
provided under “Additional Resources” on the myUnisa module site.
Page 107 of 178
You will need to master the following key terms as part of achieving the learning outcomes for
this lesson:
actio iniuriarum;
reparation;
satisfaction;
compensation.
Page 108 of 178
REPARATION OF
NON-
PATRIMONIAL
LOSS
SATISFACTION THEORIES OF
APPLICATION IN COMPENSATION
IN NON-
REAL LIFE IN NON-
EXAMPLES PATRIMONIAL PATRIMONISL
LOSS LOSS
DIFFERENCES
BETWEEN
DAMAGES AND
SATISFACTION
8.1 INTRODUCTION
We welcome you to our platform where we enquire into the most important aspects of the law of
damages. This is another exciting instalment of your module, where we visit one of the most
important forms of reparation for damage – satisfaction with regard to non-patrimonial loss.
We have said over and over again, that the South African legal system follows a comprehensive
Page 109 of 178
form of damage, namely that it recognises both patrimonial and non-patrimonial loss. This lesson
serves to introduce you to the assessment of non-patrimonial loss. The actio iniuriarum and the
action for pain and suffering are the main remedies available for non-patrimonial loss. We look
at the following concepts in this lesson:
• Satisfaction with regard to non-patrimonial loss
• Theories of compensation for non-patrimonial loss
This is certainly one of the shortest, but most important lessons in this module. We trust that you
will find it as stimulating as any other lesson you have had thus far.
8.2 SATISFACTION IN REGARD TO NON-PATRIMONIAL LOSS

The starting point in this lesson is that, whereas damages are a monetary equivalent for
patrimonial loss, reparation for impaired interests in non-patrimonial loss does not have a direct
monetary value and thus cannot be naturally expressed as a sum of money. However, in
practice, money is used to compensate such loss, and it is left to various theories, that we are
yet to cover in this lesson, to provide a sound explanation for this phenomenon. We encourage
you to actively participate in the activities that will come as you study this lesson – their aim is to
cement your understanding of the theory of assessment of non-patrimonial loss.
Page 110 of 178
The object and form of damages in patrimonial loss cases has a close relationship with damages
in non-patrimonial loss. Satisfaction has no fixed form. It seeks to provide a peaceful solution to
any dispute. It neutralises the plaintiff’s feeling of outrage and revenge. It is contingent on the
idea that aggrieved citizens must not take the law into their own hands, but must use a legal
process to obtain solutions to their problems.
Activity 8.1.
Draw a table with two columns where you list the difference between damages and satisfaction
as reparation for damage.
It is critical that you understand the theoretical differences between these two concepts. This
discussion is covered in paragraph 9.4, page 212-214 of the PT.
Page 111 of 178
The actio iniuriarum is used specifically to obtain satisfaction. It is used in cases of injury to
personality where compensation is not as effective. Instances of personal injury include, among
others, defamation, infringement of privacy, loss of dignity, and so on. A view is advanced that
satisfaction should not be seen as a form of punishing the defendant for his or her egregious
behaviour. Reliance is placed on case law to support this view.
Activity 8.2
8.2.1 Read footnote 41 on page 216 of the PT and draw a mind map, or spidergram of the ideas
that are put forward by individual judgments in support of the use of the actio iniuriarum to obtain
satisfaction as opposed to effecting punishment on the wrongdoer.
A number of cases are listed in footnote 41 that put forward the reason why punitive damages
are not favoured in cases of iniuria.
8.2.2
Discuss these above-mentioned ideas with your peers in the group discussion.
Page 112 of 178
At this level of your academic progress, it clear that collaborative learning is critical to your
growth. We encourage you to engage in a meaningful discussion and share your ideas
concerning the use of money to satisfy non-patrimonial loss where a plaintiff’s personality rights
have been infringed. These discussions help you develop your own understanding of the law of
damages as well as develop your collaborative skills.
It is imperative that you read the cases (in full) that are quoted in this footnote on page 216 of
the PT.
Page 113 of 178
Furthermore, read paragraph 9.4.5 of the PT so that you understand the difference between
satisfaction in terms of the actio iniuriarum and the action for pain and suffering.
Now that you have made notes on the above showing that you have understood these two
actions, our focus shifts to the theories that seek to explain the award of monetary damages to
plaintiffs in instances of non-patrimonial loss.
8.3. THEORIES ON COMPENSATION FOR NON-PATRIMONIAL LOSS

As already pointed out from the outset of this lesson, there is no direct relationship between
compensation for non-patrimonial loss and the loss actually suffered. Various theories try to
explain the use of money in cases where non-patrimonial damage is concerned.
Read and tabulate the features of the three theories on compensation for non-patrimonial loss
mentioned in the pages you are expected to study in this part of your lesson.
Page 114 of 178
Activity 8.3
8.3.1 Tabulate the features of the three theories on compensation for non-patrimonial loss.
8.3.2 Which of these theories do you think correctly explain the use of money in the payment of
compensation for non-patrimonial damage? Discuss fully.
8.3.3 Discuss your views regarding 8.3.1 with your peers online.
Various theories are advanced for the use of money for compensation and satisfaction. Key
amongst them is that money creates a sense of happiness, and thus may be used to soothe hurt
feelings. You must have realised that this is not always the case, especially to reach people who
may not need that money at all. The question still lingers if such people should be compensated
using money at all.
Page 115 of 178
8.4 CONCLUSION
We trust that you enjoyed this lesson. It must be clear to you that because there is no direct
equivalence between money and the non-patrimonial loss, the amount of money payable to the
plaintiff is often arrived at by guesswork. The trial court often has a wide discretion, based on
the context of each case, to award the ultimate sum of compensation for non-patrimonial loss.
Our next lesson is based on the collateral source rule and compensating advantages. We hope
to meet you then.
8.5 SELF-ASSESSMENT
8.5.1 As a norm, write a summary of the important aspects you took from this lesson. Try by all
means to use your own words to paraphrase information from your PT. These summaries will
help you prepare for the exams at the end of the semester.
achieved them. In the event that you did not, we advise you to re-read this section so as to get
a good understanding of this lesson.
8.5.3 Make sure you have mastered the key concepts and terms that were listed at the beginning
Page 116 of 178
of the lesson.
8.6 REFERENCES
Page 117 of 178
LESSON 9
TITLE OF LESSON APPLICATION OF THE COLLATERAL SOURCE RULE IN THE LAW OF DAMAGES
NOTIONAL STUDY 5
HOURS
NUMBER OF PLANNED 2
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)

HOURS
LESSON OUTCOMES
Page 118 of 178

▪ describe the collateral source rule
▪ examine and discuss the application of the collateral source rule in different scenarios
in practice
▪ evaluate and discuss the impact of the collateral source rule on the final amount
awarded for damages in certain areas where damage has been found to exist
Lesson 9 will require approximately five hours.

Read the PT and other credible sources to compile the meaning of the following key
knowledge and use imply a better understanding of this field of the law. Also refer to the
Page 119 of 178
for this lesson:
res inter alios acta rule;

insurance premium;
factual and legal causation;
social insurance;
liability insurance;
non-indemnity insurance;
pension.
Page 120 of 178
COLLATERAL
SOURCE RULE IN
SPECIFIC
SCENARIOS
APPLICATION
OF COLLATERAL COLLATERAL
CONCLUSION SOURCE RULE IN SOURCE RULE IN
THE LAW OF INSURANCE
DAMAGES
ITS APLICATION TO
QUANTIFICATION
9.1 INTRODUCTION
Welcome to this important lesson in your module. We have to say from the outset that this
lesson will require you to work on your own, to read and apply the collateral source rule in
specific examples of damage. We will help you describe it and point out its relationship with
the res inter alios acta rule, and then simply refer you to selected examples you need to
Page 121 of 178
study extensively and those you only need to read for understanding. The reason is that,
other than the concept collateral source rule, all the other examples used in the lesson or
which are referred to in your PT are not entirely new to you. All you need to do is to read
them and establish if the rule applies to them or not. All the best. We are always available
on our e-mails, telephones and group discussion to clarify any areas of difficulty that you
might meet in this lesson that requires your individual concentration.
9.2 APPLICATION OF THE COLLATERAL SOURCE RULE IN THE LAW OF DAMAGES
The existence of the collateral source rule in the law of damages cannot be doubted.
However, many legal writers and judges agree that its application is on a case by case basis.
Further take note that your PT uses examples to describe it. Our view is that you need to
understand its effect on the total of damages payable by the defendant. Its effect is that
some benefit or payment that the plaintiff receives from other sources, subsequent to
suffering some damage must be excluded (not considered) in the calculation of damages.
The underlying principle is that what happens between X and Y does not affect the obligation
that B owes to Y. Where such benefit is considered in the calculation of damages, the
Page 122 of 178
collateral source rule is said not to apply. The other way round is true (where such benefit
is not considered, the collateral source rule is said to apply).
The application of this principle is subject to:

1. The fact that a plaintiff may not receive double compensation.
2. That the wrongdoer and his insurer may not be relieved of their duty to compensate
the plaintiff on account of a fortuitous event that happened to the plaintiff, subsequent
to damage.
The effect of the application of the collateral source rule is that some benefits are res inter
alios acta.
On page 233, your PT refers you to two decided instances where benefits are treated as
collateral and are not considered in the computation of damages: insurance payouts where
the plaintiff paid premiums; and any other payment received as a solatium.
As stated at the beginning of this lesson, ours is to point out what you should study. Herewith
are the sections of your PT you should focus on by studying to get a deeper understanding
of the application of this principle.
Study and make notes on the following:

Page 123 of 178
1. The entire paragraph 10.3 that deals with cases of generosity from various sources.
2. The entire paragraph 10.4 that deals with insurance benefits.
3. The entire paragraph 10.5 that deals with pension benefits.
Activity 9.1
9.1.1
Read Dippenaar v Shield Insurance Co 1979 (2) SA 904 (A) in its entirety and then read the
criticism of this decision on pages 242-243. Indicate fully, what you think the correct view
must be in cases where pension is paid to the plaintiff on account of a damage-causing
event to reduce his or her dependency on what he or she could have earned as a salary but
for the damage.
9.1.2 This discussion is provided for in the group discussion where you can join the other
students to provide your views.
Page 124 of 178
The contrasting views on this matter indicate that the application of the collateral source rule
is not so simple. There still remains a chance that the position in Dippenaar may be changed.
The position presently is that pension that is deducted at the behest of the employer is
deducted from the total damages awarded, whereas voluntarily contributed pension is
treated as a collateral benefit.
Read paragraph 10.6 of the PT that deals with the deduction of medical aid benefits from
the damages that accrue to the plaintiff on account of hospitalisation.
Read the following and make notes:

Paragraph 10.7 of the PT.
Study paragraph 10.8 of the PT that deals with the payment of inheritance, insurance money
or pension from the deceased estate to dependents’ of the deceased – establish whether
Page 125 of 178
such benefits are collateral to the damage they have suffered. You only have to understand
the other examples.
Activity 9.2
9.2.1 Summarise the different views that are expressed on pages 266-273 of the PT on the
collateral source rule.
Boberg, Reinecke and Van der Walt are some of the authors who attempt to establish the
rationale for the application of collateral source rule in specific cases. What is clear though
is that courts always have a chance to decide which benefit, received by the plaintiff
subsequent to the damage-causing event, must be treated as collateral to the computation
of damages.
9.3 CONCLUSION
We conclude this lesson by quoting Boberg in your PT on page 266. “The existence of the
collateral source rule can therefore not be doubted; to what benefits it applies to is
determined casuistically: where the rule itself is without logical foundation, it cannot be
Page 126 of 178
expected of logic to circumscribe its ambit.”
It will do you good to memorise some of the cases or instances where this rule applies and
where it does not apply. This marks the end of our discussion.
Our next lesson focuses on some other general principles regarding the recovery of
damages. This is a very practical lesson. You will need your basic knowledge of calculations
to solve some problems. However, it does not mean that you have to enroll for an advanced
mathematics course.
9.4 SELF-ASSESSMENT
9.4.1 Write a summary of the lesson where you refer to sections from the PT, case law and
legal opinion to establish your understanding of what was learnt.
9.4.2 Go back to the lesson outcomes at the beginning and check if you have achieved
them. In the event that you did not, we advise you to re-read this section so as to get a good
understanding of this lesson.
9.5 REFERENCES
Page 127 of 178
Juta.
Page 128 of 178
LESSON 10
TITLE OF LESSON SELECTED PRINCIPLES REGARDING RECOVERY OF DAMAGES AND SATISFACTION
NOTIONAL STUDY 5
HOURS
NUMBER OF PLANNED 2
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)

HOURS
LESSON OUTCOMES
Page 129 of 178

• identify and discuss selected factors that may affect one’s ability to claim damages and
satisfaction
• investigate and discuss various forms (instances) by which one may be sued as a defendant
• determine what a plaintiff may do to mitigate loss in various instances where he or she has
suffered loss
• evaluate the impact of contributory fault on the amount of delictual and contractual damages
• analyse the influence of remoteness of damage on the ultimate sum of damages claimed in
selected cases
• discuss the influence of inflation on the amount of compensation to be awarded
• consider the COIDA and RAFA principles that limit liability of the wrongdoer in specific
instances
• summarise a few instances of concurrence of actions
• solve problems related to the regulation of liability for damages by means of an agreement
• indicate how prescription limits the claim for damages and satisfaction
Lesson 10 will require approximately five hours.

Page 130 of 178
Read the PT and other credible sources to compile the meaning of the following key concepts and
terms that would be used in the study of the law damages from now until the end of the semester.
understanding of this field of the law. Also refer to the Multilingual Glossary provided under
“Additional Resources” on the myUnisa module site.
this lesson:
joint estate;
transmissibility of a right;
insolvency;
litis constestatio;
recourse;
joint wrongdoer;
duty to mitigate;
Page 131 of 178
contributory fault;
remoteness of damage.
MITIGATION OF
LOSS
SELECTED
Persons who
PRINCIPLES
may claim
REGARDING
damages or PRESCRIPTION
RECOVERY OF
satisfaction for
DAMAGES AND
loss
SATISFACTION
OTHER
PRINCIPLES
THAT AFFECT
COMPUTATION
OF LOSS
Page 132 of 178
10.1 INTRODUCTION
We welcome you to this very important aspect of the law of damages. It is not enough for a
student of this module to only know the principles that establish and govern the existence of
damage without enquiring into the principles that regulate the recovery of damages where
damage has been found to exist. With the knowledge you have so far, you surely can explain
to a client what constitutes damage and damages for both patrimonial non-patrimonial loss. But
we are very sure, unless you are a repeat student, that presently you have no idea of what
factors the court will consider before it reduces or increases the initial amount of damages and
satisfaction awarded. The following principles, which are not a closed unit themselves, form
what in criminal procedure would be treated as aggravating and extenuating circumstances,
argued by the state and the defence shortly before the court sentences the convict. In the same
vein, we discuss the different principles that govern the action of damages. The differences
between these principles will become clearer during the course of the lesson.
10.2 PERSONS WHO MAY CLAIM DAMAGES OR SATISFACTION FOR LOSS

Ordinarily, the person who suffers loss is the one who may claim damages or satisfaction.
Page 133 of 178
Unborn children, who are for example, later born with a disability because of harm sustained to
him or her while a foetus are eligible to claim damages as well. You will also realise that in a
breach of contract, it is the innocent party, who as a result of damage caused by such breach,
can claim damages from the other party. You should be able to trace and establish the changes
that have taken place with regard to the power of a spouse to sue for damages against another,
since Van der Merwe v Road Accident Fund 2006 (4) 230 (CC).
There is authority that a parent may only claim using his name against a wrongdoer who caused
bodily injuries to his child for past medical expenses. The other claims could only be made by
the child or the parent on behalf of the child. Dependents’ of the deceased may claim loss of
support (damages) only when they can show that the death of the deceased caused them such
loss and that they had a right of support against the deceased. This is a very important principle
you may have discussed in level 3, Law of Delict.
Both the owner of a thing sold in an instalment sale agreement and the bona fide possessor of
a thing may claim damages for the damage of a thing to the extent that they have been
prejudiced. You should also understand the influence of cession or rather when cession of the
rights to claim may be instituted for both patrimonial and non-patrimonial loss. In respect of
transferability of claims, please note that an almost similar principle applies to cession; namely
that claims for patrimonial loss may be freely transferred to the deceased estate before or after
litis contestatio whereas claims for non-patrimonial loss may only be transferred after litis
Page 134 of 178
contestatio. Insolvent persons are competent to claim compensation for non-patrimonial loss,
and any value that they get from such litigation is not a part of the insolvent estate.
Upon reading and understanding the concept of right or recourse, compile and list examples of
rights of recourse available to specific individuals in the field of damages.
We hope that you are able to establish various examples of people who may claim damages
(technically the plaintiffs) in both patrimonial and non-patrimonial loss.
10.3 POSSIBLE DEFENDANTS IN A CLAIM FOR DAMAGES

We now shift our focus onto who could be defendants in a claim for damages. Generally,
he who is responsible for damage must pay the damages. However, the deceased person’s
estate may defend against claims of damages at any time during the lawsuit in patrimonial loss
claims and only after litis contestatio in non-patrimonial loss claims. However, please note that
the RAF Act brings in another dimension to the third-party compensation claims. An insolvent
estate is not liable for claims but the person who committed such delict is. Claims for a delict
and contractual breach committed before sequestration must necessarily be paid from the
Page 135 of 178
estate. Establish what is meant by joint wrongdoers and the manner in which claims are made
against them.
Activity 10.1
Differentiate between the cession and transferability of non-patrimonial and patrimonial loss claims.
Refer to relevant authority in your discussion.
We have already discussed this matter above. However, read paragraph 11.1.6 of the PT and
footnotes 72 and 73 on pages 284-285 of the PT to find case law that establishes different times
and stages during which claims for patrimonial and non-patrimonial damages may be transferred.
Paragraph 11.1.5 discusses cession. Set out a convincing discussion of these two important factors
that affect the computation of damages at different stages of the trial.
10.4 THE IMPORTANT DUTY TO MITIGATE LOSS

We now focus on the important duty to mitigate loss. The plaintiff will not recover from the
defendant, damages for loss, which was factually caused by the defendant, if the plaintiff could
have reasonably prevented such loss or further loss, but failed to do so. There is a requirement
Page 136 of 178
that the plaintiff should take reasonable steps to prevent such loss. Such steps may be
compensated by the defendant. Compensation will only be to an extent that the plaintiff had
suffered loss. Extravagant steps will not be compensated. Read to find out who carries the burden
to prove that the defendant could have, but failed to take reasonable steps to mitigate loss.
10.5 THE CONCEPT OF CONTRIBUTORY FAULT

Closely related to the concept of mitigation of loss is the concept of contributory fault. One
compels the plaintiff to act positively to mitigate loss whereas the other is an argument that the
plaintiff somehow, through his action or inaction, contributed to his loss or damage. Find out all the
principles that are used to assess ones’ contributory fault to his or her loss. The defendant’s liability
is not unlimited. There comes a point in the chain of events where the court needs to draw a line
and say, from this point onwards, the defendant will not be bound or liable any further.
Activity 10.2
10.2.1 Appraise the various theories that are applied to determine legal causation in practice.
10.2.2 Which one do you think answers the question, which of the consequences of the defendant’s
actions may not be imputed to him?
10.2.3 Involve other students in this discussion on the group discussion forum.
Page 137 of 178
They are the flexible approach, adequate causation and direct consequences theories. Evaluate
these theories and determine which one of them adequately answers the question that deals with
“which consequences may be attributable to the defendant’s actions”? Generally, there is no single
theory that could be used in all situations. Each situation must be dealt with in accordance with its
merits. What that means therefore, is that a flexible approach is the best in all circumstances. The
adoption of a single theory or approach would too dogmatic and unnecessarily oversimplify a rather
complicated process of legal causation. Read pages 309-311 of the PT and the footnotes on these
pages to get a clear view of these theories. Further note that issues connected to novus actus
interveniens and the talem-qualem rule are part of the matrix that is the determination of legal
causation. Read about them on pages 314-315 of the PT.
In contractual damages, the principles of general and special damages take a different twist when
Page 138 of 178
it comes to determining legal causation. General damages refers to all consequences of breach of
contract that are naturally presumed to flow from the contract, thus both parties knew about them
at the time that the contract was entered into. Special damages refers to those damages claimable
from a breach of contract, which do not naturally flow from the terms of the contract, but are
generally foreseeable or the parties ought to have foreseen, and in some instances are the basis
for entering into a contract. Read pages 316-321 of the PT to understand them. In contractual
damages, not only the nature of damage, but the extent thereof, must have been within the
contemplation of the parties.
To conclude, the liability of a party in breach of contract extends to loss which the person foresaw,
or should reasonably have foreseen, when breach of contract occurs. Read all the cases in footnote
290, on page 322 of the PT.
10.6 LIABILITY OF THE DEFENDANT FOR INCOME THAT WAS UNLAWFULLY EARNED
There is a debate on the liability of the defendant for income that was unlawfully earned. Read
paragraph 11.6 of the PT to establish the views of the court.
Appraise the merits of each argument. It is critical that you add your voice on the raging argument.
Read the cases that are stated in footnotes 295-314, on pages 322-325 of the PT, and then write,
Page 139 of 178
as part of your notes, opposing arguments on the limitation on recovery of damages for income or
loss of support that was unlawfully earned. This is a worthwhile reading activity, for critical
self-reflection.
10.7 OTHER RELEVANT PRINCIPLES THAT AFFECT THE COMPUTATION OF DAMAGES

AND SATISFACTION
There is a further discussion of other principles that affect the computation of damages and
satisfaction in these pages. Read them for your understanding. Multiple-Choice Questions may be
asked based on the knowledge of these principles. What you should take from these pages though,
is the idea that depending on each case, there is always a wide range of principles that would be
applicable. It is critical for a damages legal practitioner to get the latest position on these principles.
10.8 CONCLUSION
In practice, various principles and theories are used to assist the courts to come up with the fairest
of judgments and orders in cases of delictual, contractual and statutory damages. As we have
already pointed out, it is the knowledge of various theories that assists the legal practitioner to
Page 140 of 178
make sound judgments about taking specific lawsuits to court. Whereas it is the duty of a legal
practitioner to only advise the clients what to do, but in reality, sound advice comes from a deep
knowledge of both theory and practice in the law of damages. It is our hope that you understood
the importance of this lesson. In our last four lessons, starting with the very next one, focus now
shifts to the quantum of damages. We have established what damage and damages are as well
as the principles applicable to the assessment of damage. Now we look at the actual computation
of damages. The next lesson deals with quantum of damages in cases of breach of contract.
10.9.1 Write a summary of the lesson where you refer to relevant sections from the PT, case law
and legal opinion to establish your understanding of what was learnt. Make sure you write a
summary of the principles on pages 325-348 of your PT.
10.9.2 Go back to the lesson outcomes at the beginning and check if you have achieved them. In
the event that you did not, we advise you to re-read this section so as to get a good understanding
of this lesson.
Page 141 of 178
of the lesson.
10.10 REFERENCES
Road Accident Fund Act 56 of 1996
Page 142 of 178
LESSON 11
TITLE OF LESSON QUANTUM OF DAMAGES IN SPECIFIC CASES OF BREACH OF CONTRACT
NOTIONAL STUDY 8
HOURS
NUMBER OF PLANNED 1
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)

STUDY
HOURS
LESSON OUTCOMES
Page 143 of 178

• identify and discuss the general principles that are used in the assessment of contractual
damages in various cases of breach of contract
• apply the general principles that are used in the assessment of contractual damages in various
cases of breach of contract
• identify the remedies and/or damages that can be claimed in instances of breach of contract of
sale
• analyse the quantification of damages where a contract of lease has been breached
• evaluate the influence of conventional penalties in signed agreements
• analyse the quantification of damages arising out of the Consumer Protection Act 68 of 2008,
the Alienation of Land Act 68 of 1981 and insurance contracts
• asses the development and/or changes of damages connected with breach of promise to marry
Lesson 11 will require approximately eight hours.
We suggest that you compile a glossary of the important terms mentioned in Chapter 12 of the PT.
Page 144 of 178
Some of the terms have been identified for you below. We have a standard glossary of terms on the
myUnisa site under “Additional Resources”. Feel free to consult it for a brief explanation of some of
these terms but it will make sense if you write your own, so as to improve your understanding.
Mora debitoris; mora creditoris; repudiation; rescission; breach of contract; performance;

contemplation of parties; merx; market value or market price; eviction; warranty; res vendetta; latent
defects; actio redhibitoria; actio quanti minoris misrepresentation; holding over; penalties; waiver of
rights; non-indemnity insurance.
The mind map, Figure 11.1, below seeks to give you a synopsis of the entire lesson. Please interact
with it before engaging with this lesson. All the best.
Page 145 of 178
INSURANCE,
BREACH OF
PROMISE TO
MARRY AND
PROFESSIONAL
LIABILITY
QUANTIFICATION VARIOUS
SELECTED OF DAMAGES IN
FORMS OF
STATUTORY CASES OF
BREACH OF BREACH OF
DAMAGES
CONTRACT CONTRACT
CONTRACTS OF
SALE
AND LEASE
Figure 11.1
Page 146 of 178
11.1 INTRODUCTION
Welcome to our lesson on the quantum of damages in specific cases of breach of contract. At the
heart of this lesson, is a discussion of the main principles that regulate the quantification of damages
where one party has breached a material contractual term, which breach resulted in patrimonial loss
on the part of another. It should be clear to you that non-patrimonial loss is not claimable using these
principles, but through other remedies which are not discussed in this lesson.
This lesson has a number of new Latin and English terms which are rather important. Refer to the
glossary of terms referred to above.
Read pages 351-371 of your PT.
11.2 VARIOUS FORMS OF BREACH OF CONTRACT

This part of your lesson is captured on the right-hand side arm of the mind map above. You should
establish, among others, that a claim for damages for breach of contract must meet three basic
Page 147 of 178
requirements. These requirements are discussed within the above pages of the PT. The assessment
of patrimonial loss in cases of breach of contract, is through a comparison of the innocent party’s
current position with the position he or she could have been in had there been proper and timeous
performance. Analyse instances where breach of contract may cause damage in paragraph 12.3 of
your PT. As is the case in delict, the final monetary value awarded for contractual damages is subject
to a number of principles and considerations. We encourage you to determine what (is generally within
the contemplation of the parties and specific statutory and common law principles) affects the award
of contractual damages in some contracts. At the outset of reading material from your PT, you are
introduced to different ways by which a contract may be breached. Now we direct your focus on the
assessment of damages.
11.3 SELECTED STATUTORY DAMAGES
Between pages 357-370 of the PT, trace and appraise the discussion on the assessment of damages
in cases of poor performance, repudiation, delivery of defective merx, mora debitoris and mora
creditoris.
Page 148 of 178
Activity 11.1
The market price rule is used to determine damages for a breach of contract of sale, where the merx
was not delivered. Discuss its general principles and operation. Further indicate its limitations in
specific situations. This must be done online in the group discussions before writing your answer.
An analysis of the market price rule is found in paragraphs 12.7.1 – 12.7.7 of your PT. It is critical that
you understand that where the market price could not be established, other available evidence,
including the auction price of the merx may be used. Furthermore, make sure that you understand the
principles of auction sale that determine the price at which a merx may be sold. We hope that you
understood this part of your lesson.
Read pages 373-81 of your PT.

Page 149 of 178
11.4 CONTRACTS OF SALE AND LEASE

We now shift our focus to the contract of sale. A contract of sale is one that springs to mind when one
thinks of commercial contracts. Each one of us has bought something in life, and some of our
experiences have left us with many unanswered questions as to what our recourse was in those
circumstances. Study the general principles regarding the damages claimable for a material breach
in a contract of sale which, among others, include: eviction; latent defects and the actio redhibitoria;
latent defects and the actio quanti minoris; misrepresentation and warranties.
Closely related to the contract of sale is the contract of lease. Establish what remedies and/or
damages are claimable if one of the parties of a lease is in breach of a material term of the lease.
11.5 SELECTED STATUTORY DAMAGES ON ACCOUNT OF BREACH OF MATERIAL TERMS

OF THE CONTRACT
There is a wide range of statutes that establish damages and the principles that ought to apply in the
quantification thereof, where a material breach of contract has occurred that resulted in patrimonial
loss for the innocent party. Please refer to the discussion of the following legislation to establish what
Page 150 of 178
damages are available for the innocent party where there has been a breach of contract (see pages
387-405 of your PT).

National Credit Act 34 of 2005
Alienation of Land Act 68 of 1981
Consumer Protection Act 68 of 2008
Labour Relations Act 66 of 1995
11.6 INSURANCE CONTRACTS, BREACH OF PROMISE TO MARRY AND PROFESSIONAL

LIABILITY
Contract of insurance, like that of sale, is probably one of the leading contracts that give rise to
contractual damages. You have to understand the difference in the nature of damages between non-
indemnity and indemnity insurance. Please note that the RAF Act is briefly discussed under third-party
insurance. We will focus on it at length in the later lessons. Further take note that in a case where a
promise to marry has been breached, the innocent party can only claim for actual loss suffered. Lastly,
please refer to the discussion on the liability of legal professionals. It is critical that you understand it
thoroughly.
Page 151 of 178
11.7 CONCLUSION
We hope that you understood the various principles of assessment and quantification of damages in
selected cases of breach of contract. We also hope that you understood the few statutes which
principles of damage and claim for damages were briefly discussed in the PT. More than anything
else, we encourage you to read further on in those statutes so that you may gain a deeper
understanding of the principles of loss in terms thereof. They are exciting fields of practice. Our next
lesson is a very short one. It focuses on the computation of damages based on selected forms of
delict.
11.7.1 Write your own summary of this lesson, paying particular attention to the outcomes that are
mentioned at the beginning. Always make sure that your summary addresses the critical skills and
knowledge that are contained in the lesson outcomes.
10.7.2 Make sure you have mastered the key concepts and terms that were listed at the beginning of
the lesson.
Page 152 of 178
11.8 REFERENCES
National Credit Act 34 of 2005
Alienation of Land Act 68 of 1981
Consumer Protection Act 68 of 2008
Labour Relations Act 66 of 1995
Page 153 of 178
LESSON 12
TITLE OF LESSON QUANTUM OF DAMAGES FOR PATRIMONIAL AND NON-PATRIMONIAL LOSS CAUSED BY
CERTAIN FORMS OF DELICT
NOTIONAL STUDY 12
HOURS
NUMBER OF PLANNED 3
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)

STUDY
HOURS
LESSON OUTCOMES

Page 154 of 178
• establish and discuss the quantification of damages for patrimonial loss caused by certain
forms of delict
• examine and discuss the principles and factors that are considered in the quantum of
patrimonial loss caused by bodily injury, death or infringement of personality rights
• apply appropriate remedies in a set of facts to solve problems connected to the quantum
of damages and satisfaction for non-patrimonial loss
Lesson 12 will require approximately 12 hours.
We suggest that you make use of credible English/Latin Legal dictionary to define the following
terms that are used extensively in this lesson. Also refer to the Multilingual Glossary provided
under “Additional Resources” on the myUnisa module site.
Page 155 of 178
this lesson:
pure economic loss;
fraudulent and negligent misrepresentation;
servitudes;
actio de pastu;
actio de pauperie;
duress;
defamation;
earning capacity;
loss of support.
Page 156 of 178
QUANTUM OF
DAMAGES FOR
PATRIMONIAL LOSS
CAUSED BY CERTAIN
FORMS OF DELICT
QUANTUM OF QUANTUM OF
DAMAGES AND DAMAGES FOR
SATISFACTION PATRIMONIAL LOSS
SUMMARY OF
CAUSED BY BODILY
DAMAGES IN CERTAIN INJURY, DEATH AND
FORMS OF INFRINGEMENT OF
PERSONALITY
DELICT
QUANTUM OF
DAMAGES AND
SATISFACTION FOR
NON-PATRIMONIAL
LOSS
Page 157 of 178
12.1 INTRODUCTION
This lesson combines a number of important principles concerning the computation of damages
and satisfaction. It is in fact a culmination of all the principles that make up the structure of the
law of damages.
Now that you have studied the nature and assessment of both patrimonial and non-patrimonial
loss, we would like to introduce you to the principles concerning the computation of the awards
that are made by the courts, where damage has been established. This lesson is divided into
three broad topics, namely the quantum of damages for patrimonial loss in selected forms of
delict, the quantum of damages (compensation) for patrimonial loss caused by bodily injuries,
death or infringement of personality, and lastly the quantum of damages and satisfaction for non-
patrimonial loss caused by injury to personality.
We hope that you will use all the knowledge you have learnt thus far to solve practical damages
problems, arising from loss. Before you start on this lesson, we advise that you focus briefly on
the synoptic mind map in Figure 12. 1. It seeks to give you an idea of the contents of this lesson.
We have already pointed out that this lesson focusses on practical examples using existing
knowledge from previous lessons. You should not have any difficulty understanding the outcomes
Page 158 of 178
of this lesson.
Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C)
Damages claimed in delictual actions for injury to property are assessed on the principle that the
plaintiff must by monetary compensation be placed in as good a position financially as he or she
would have been had the damage not been inflicted. Indeed, this is the basic principle for all
computation of damages where property with a determinable commercial value has been
damaged. Find out how the principle of market value is used to determine the value of the property
in question.
In practice, the reasonable cost of necessary repairs is used to compute damages. In some
instances, the market value of the thing damaged may be used where it is be precisely
established. You are expected to establish exceptions to the use of the reasonable cost of repair
of the property. Where property is destroyed or stolen, the market value of the property is used
to determine damages.
Page 159 of 178
Damages on account of fraudulent and negligent misrepresentation which induce a contract are
computed by placing the plaintiff in a position he or she would have occupied, financially, had
such misrepresentation not taken place. Read the case law referred to on pages 430-438 of the
PT and observe how our courts have established the correct method of computing damages in
cases of misrepresentation in a contract.
Like misrepresentation, duress also induces a contract. The damages for the victim are calculated
in the same way (namely, what the plaintiff’s financial position would have been had there been
no duress). Paragraphs 13.7 and 13.8 of the PT deal with statutory quantification of damages.
Read them for your own understanding.
With the actio de pauperie, medical costs, loss of income, loss of earning capacity as well as what
could be claimed, in terms of the action for pain and suffering may be claimed by the plaintiff. Find
out which principles are applied in the quantum of damages in instances of damage that are listed
on pages 444-451 of the PT.
Activity 12.1
Collate all the examples of statutory damages that are mentioned in footnote 229, page 452 of
the PT and summarise them in the form of a table. On the left-hand side of the table list the
statute, and the provision in full. On the other side, state what could be claimed as damages in
Page 160 of 178
each instance by the plaintiff.
This is a straightforward question that seeks to broaden your knowledge of examples of damages
in terms of what could be claimed using a number of statutes in the Republic of South Africa. To
many students, damages are only restricted to RAF claims and COIDA. Very few are aware that
there is a variety of statutes and common law damages, people may use to claim when they suffer
loss. This part of the lesson sought to give you that view.
12.2 QUANTUM OF DAMAGES FOR PATRIMONIAL LOSS CAUSED BY BODILY INJURY,

DEATH OR INFRINGEMENT OF PERSONALITY RIGHTS

Page 161 of 178
A number of wrongful or negligent actions may cause bodily injury, illness or death that may result
in patrimonial loss. Such patrimonial loss may take different forms, like medical and related
expenses, loss of income, loss of earning capacity, loss of support, funeral expenses and loss of
service.
Please note that loss caused by bodily injury sustained in a motor vehicle accident is dealt with
in terms of the RAF Act. Paragraphs 14.1-14.6 in your PT deal with the different classification of
claims that may be claimed for patrimonial loss in terms of the said Act. Also note that the
principles of the collateral source rule, contingencies and the duty to mitigate are applicable in the
quantification of these claims. Loss of earning capacity is approached from various angles. In
some instances, judges make a round figure, in others, scientific actuarial calculations are
involved. It is imperative that you gain knowledge of the operations of these methods. In practice,
work that needs scientific calculations is done by specialists but an attorney must be able to deal
with basic mathematical problems. We do ask questions that demand such basic knowledge of
mathematics.
In calculating the damages for loss of support, the basic principle is to subtract the current
patrimonial position of a dependent from the patrimonial position he or she would have enjoyed
had the breadwinner not been killed. You should understand both the annuity and fair estimate of
loss that operates to determine the actual loss to be compensated. It would be sufficient for you
to understand the operations of the basic formula as described on page 480 of the PT. Further
Page 162 of 178
examine the influence of some advantages, some specific disadvantages, loss of social
advantages, and other factors that the courts consider to determine an equitable adjustment of
damages.
The RAF Act makes provision for payment of loss of support in instalments and has a threshold
limit of what can be paid out as loss of support. Read and understand how compensation is
calculated in terms of a few statutes on pages 491-496 of the PT.
Activity 12.2
Read the following scenario and answer the questions.
X and Y, who lost their father in a motor vehicle accident approach you, as an attorney for advice.
They tell you that their father was the only breadwinner at home and took care of both of them,
as minor children. They have been told that the final sum of money that would be awarded as
damages for loss of support may be reduced or increased upon consideration of a number of
factors. They have no idea what these factors are. Write a draft note that you will use to explain
to them what these factors are and how the courts use them to either reduce or increase the final
award for damages for loss of support.
Page 163 of 178
These factors are discussed in paragraph 14.7.5 on pages 485-488 of the PT.
12.3 QUANTUM OF DAMAGES AND SATISFACTION FOR NON-PATRIMONIAL LOSS
The action for pain and suffering which is used to claim compensation for non-patrimonial loss on
account of an infringement of bodily integrity and the actio iniuriarum are prominently used in this
part of the law of damages. Rule 18(10) of the Uniform Rules of Court and rules 6(9) and 6(10)
of the Magistrates’ Court Rules require that an individual claiming for personal injury has to specify
the nature and the extent of the injuries, their effects, and the duration of the resultant disability.
Page 164 of 178
Courts have a wide discretion. The compensation must be, among others, in proportion with the
intensity of the injuries, effective, fair and conservative, and so on. Previous awards are
considered in similar cases. Read the principles related to previous awards and evaluate their
practical influence on the awards made in compensation for pain and suffering. Read the
principles on pages 506-512 of the PT to determine how the five different claims under the action
for pain and suffering are computed. Analyse the discussion on the factors that influence the
quantum of compensation for defamation on pages 513-530 of the PT. Further analyse the factors
that either increase or decrease the final award that is made in this regard. You will realise that
the principles that relate to quantification in cases of defamation claims apply mutatis mutandi to
claims for insult. Please note that the breach of promise to marry can give rise to the actio
iniuriarum and contractual damages. Read pages 537-539 of your PT to establish under which
grounds these remedies may be used.
The factors that are considered in the quantification of claims for infringement of the right to
privacy; unlawful and malicious deprivation of liberty or arrest; malicious prosecution and
malicious civil proceedings; assault that includes rape are discussed on pages 543-553 of the PT.
Read the cases mentioned in the footnotes carefully. They crystalise what needs to be considered
in each case. Please note that at the time of publication of the PT, constitutional damages were
yet to be awarded. Recent case law suggests that judges award constitutional damages as
appropriate relief in certain instances.
Page 165 of 178
There is a growing concern that the award of constitutional damages against organs of state will
ultimately bankrupt the state. However, the growing abuse of authority by state functionaries
necessitates a balance of state action with the infringement of fundamental human rights. In the
end, judges are left with a challenge of balancing the scales of justice (on one hand, the need to
award the litigant the relief he or she seeks and the reality that state resources must be used for
more pressing matters than pay large sums of money to successful litigants on the other hand).
Activity 12.3
Visit the library online, download cases post-2012 where constitutional damages have been
awarded. Use at least three cases to formulate an argument that supports the award of
constitutional damages as appropriate relief in specific situations against organs of state.
Page 166 of 178
Whichever cases you refer to, what comes out clearly from the recent case law is that plaintiffs
must rely on “appropriate relief” in order to claim constitutional damages where there has been a
clear infringement of a fundamental right, M and Another v Police Minister 2013 (5) SA 622 (GNP).
In Ngomane v City of Johannesburg Municipality 2019 (3) ALL SA 69 (SCA), the court conceded
that constitutional damages must be given where private law is insufficient to cover the claim.
This is only a guideline. Your answer must sufficiently cover the question.
12.4 CONCLUSION
We already pointed out that this lesson marks the end of the discussion on principles of damages.
You will be glad to know that this is your penultimate lesson. We hope that you understood the
principles that are applied in quantifying damages for patrimonial and non-patrimonial loss. We
further hope that you understood the factors that the courts consider in order to come up with a
just and fair award in cases of iniuria. Our next and last lesson covers the procedural matters
connected to pleadings, and a brief discussion of international private law. We trust that you have
enjoyed this module.
Page 167 of 178
12.5.1 Write a summary of the important principles that inform the quantum of damages in both
patrimonial and non-patrimonial loss cases.
12.5.2 Use your summary to gauge your understanding of the learning outcomes at the beginning
of this lesson.
of the lesson.
12.6 REFERENCES
Page 168 of 178
LESSON 13
TITLE OF THE LESSON PROCEDURAL MATTERS AND PRIVATE INTERNATIONAL LAW
NOTIONAL STUDY 8
HOURS
NUMBER OF PLANNED 1
SELF-REFLECTIVE
ACTIVITIES
NUMBER OF NONE
ASSESSMENT-LINKED
ACTIVITIES

ACTIVITIES
(Where necessary)

STUDY
HOURS
Page 169 of 178
LESSON OUTCOMES
• Differentiate between the pleading of general damage from the pleading of special damage
• set out in detail, the pleadings of damage caused by bodily injuries and death
• use the appropriate Uniform Rules of Court and/or the Magistrates’ Court Rules to claim
interim payments of damages
• discuss circumstances under which an appeal and cross-appeal of damages may occur,
the circumstances include the power of the trial court to apply the apportionment of
damages in cases of contributory negligence, contingencies and the power to make an
award
• analyse the various factors that influence the declaration of costs in a damages law suit
• briefly explain the monetary and territorial jurisdiction of courts in damages law suits
• discuss by, indicating clearly, when foreign principles of delict would be used in a South
African Court of law
Lesson 13 will require approximately eight hours.

Page 170 of 178

Compile a list of special terms used in this last part of the PT and define them using a credible
source or legal encyclopedia from the library. Knowledge of these terms will cement your
understanding of the theory of the law of damages which will be of use in practice. Also refer to
the Multilingual Glossary provided under “Additional Resources” on the myUnisa module site.
this lesson:
Territoriality; costs; appeal; cross-appeal; pleadings; jurisdiction.
Page 171 of 178
SETTING OUT
OF PLEADINGS
IN A DAMAGES
LAWSUIT
APPEAL
PROCEDURE,
AGAINST AN
INTERNATIONAL COSTS AND
AWARD OF
PRIVATE LAW INTERNATIONAL
DAMAGES OR
LAW
SATISFACTION
COSTS,
DAMAGES TO
MINOR
PLAINTIFFS AND
JURISDICTION
Figure 13.1
Page 172 of 178
13.1 INTRODUCTION
We welcome you to the very last lesson in your study of LPL4802, Law of Damages. We trust that
this was an exciting and fruitful academic journey for you. We are also happy to have contributed
to your soon to be successful attainment of your LLB degree. This lesson is a brief introduction to
any damages claim in practice. Obviously, you will need more than the knowledge you will get in
this lesson to be a successful law of damages specialist lawyer. But without a doubt, we can
exclaim that the principles that you will learn in this lesson will set you on a good course to
becoming one.
Briefly, in this lesson you will find information contained in the mind map in Figure 13.1.
13.2 SETTING OUT OF PLEADINGS IN A DAMAGES LAWSUIT
PLEADINGS
Page 173 of 178
Uniform Rules of Court 18, 19, 33 and 34A, and corresponding Magistrates’ Court Rules 6(9) and
18A.
Generally, claims for unliquidated damages are brought before the court through action
proceedings. We recommend that you revisit your level 3 Civil Procedure Module and determine
the differences between action and application procedures. A plaintiff must give sufficient
particulars with regard to the cause of action for damages lawsuit. There is obviously a procedural
difference in the claims for general and special damages. Read pages 559-560 of the PT to
establish these differences.
Please note that over and above the general procedural rules that a plaintiff needs to comply with,
in an action for damage caused by bodily injuries and/or death, such plaintiff must utilise Uniform
Rule 18(10)-(12) to set out his or her quantum for damages. You have to read it, familiarise yourself
with the separate heads of damages applicable therein. Further take note that, certain other
principles, already discussed, will be considered in the quantification of these damages.
Amendment of the claim for damages is allowed in appropriate circumstances. Read to get a
clearer view of these in paragraph 16.1.5 of the PT.
Generally, a plaintiff must prove damage on a balance of probabilities. Study the relevant pages
of the PT to establish how the plaintiff needs to prove either damages capable of mathematical
calculation and satisfaction or compensation incapable of precise calculation.
Page 174 of 178
13.3 APPEAL AGAINST AN AWARD OF DAMAGES OR SATISFACTION
Please note that an appeal on the merits of the case will involve knowledge and the study of the
Law of Delict (please refresh your memory by going through the learning material for this module).
The focus herein is on the amount of damages awarded by the trial court. Establish for yourself,
when a court of appeal will hear, and change, if possible, the amount of damages awarded by the
trial court. This part of the module is critical, and you can expect a number of practical questions
both in the exam and in the assignments based on this part of the module. This, however, does
not suggest that other parts of the module are less important and will have fewer questions set on
them. Far from that. Questions may come from any part of the PT that was a part of the 13 lessons
you have studied so far.
Page 175 of 178
13.4 COSTS, AWARDS TO MINOR PLAINTIFFS AND JURISDICTION
The general rule is that the successful litigant is entitled to costs. However, there are certain
instances when costs are not awarded on that basis. Study the pages indicated herein to establish
those exceptions to the general rule.
Activity 13.1
13.1.1 Consider the statement below and answer the question that follows:
Courts may determine the manner by which damages awarded to a minor plaintiff should be
administered. Discuss, with the aid of relevant legal authority, the administration of a minor
plaintiff’s award of damages.
13.1.2 Share your ideas regarding 13.1.1 with other students in the group on the Discussion forum.
Page 176 of 178
FEEDBACK
Read through paragraph 16.5 on pages 577-578 of the PT. You must have realised that there are
various ways by which awards to minor plaintiffs could be managed. The court does have an
interest in the manner in which guardians and other people who may have represented the minor
plaintiffs ultimately use the money awarded in damages.
Jurisdiction of the court is based either on territory or the total amount that the plaintiff has claimed
in his or her actions for damages. As a future legal practitioner and a student of the law of
damages, you should have both practical and theoretical knowledge of the principles that govern
the choice of the court that may hear a specific matter. The result is that if an action is brought to
a wrong court, the defendant may accept to it to the detriment of your client.
Page 177 of 178
13.5 INTERNATIONAL PRIVATE LAW
In this part of the lesson, you are expected to establish circumstances when local courts (South
African) would enforce a foreign judgment. Private law regulates people’s private affairs. By nature,
people migrate from one place to the other for different reasons. As a result, litigants may bring to
court, issues connected to damages or damage incurred and concluded in some jurisdictions. Our
courts would be guided by the principles laid down herein to decide such cases. Make sure that
you understand the application of the principle of lex loci delicti commissi in the determination of
jurisdiction, involving foreign judgments.
13.6 CONCLUSION
This marks the end of this lesson and the study of the module, LPL4802, Law of Damages. We
are upbeat about your chances of success. We encourage you to revise all the principles you
learnt in these lessons, in preparation for your exams. In as much as we indicated in the FAQ, this
Page 178 of 178
module is an NQF Level 8, Honours Module. We did not demarcate issues in terms of what must
be studied and what can only be read. The reason is that you are expected to know and understand
all the issues discussed in these lessons. We therefore expect you, as an Honours level student
to grapple with and understand everything that this module has to offer. Should you have any
queries, as your lecturers, we are always willing to assist. The road we have travelled together will
assist you to gain a deeper understanding of this module. We wish you well.
13.7.1 Write a summary of the most important issues dealt with in this lesson. Use the learning
outcomes at the beginning of the lesson to establish if you understood what the lesson set out to
achieve.
13.7.2 Make sure you have mastered the key concepts and terms that were listed at the start of
the lesson.
13.8 REFERENCES
JM Potgieter, L Steynberg and TB Floyd Visser & Potgieter Law of Damages 3rd ed (2012) Juta
Uniform Rules of Court 18, 19, 33 and 34A.
Magistrates’ Court Rules 6 (9) and 18A

Lessons LPL 4802 - Study Guide

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Lessons LPL 4802 - Study Guide

Uploaded by

Copyright:

Available Formats

Page 1 of 178

LLP 4802: LAW OF DAMAGES

MODULE TITLE COMMENTS

NOTIONAL STUDY HOURS (NSH)

DELIVERY MODE (ONLINE OR BLENDED)

ASSESSMENT STRUCTURE OF THE MODULE (Activities and Formative Assessment)

PURPOSE OF THE MODULE

marker was too generous with marks, despite your complaint.

ESTIMATED TIME FOR LESSON

KEY CONCEPTS AND TERMS

READ TEXTBOOK MATERIAL

CRITICAL AND REFLECTIVE THINKING

URL link icon

Comments tool icon

Self-reflective activity icon

Assessment activity icon

Qualification/module site Things to remember

will respond to your query.

The purpose of the module is to:

NUMBER OF E-TUTOR N/A

NOTION DESCRIPTION COMMENTS

▪ discuss the nature and scope of damages

▪ explain the sources of claims of damages

Lesson 1 will require seven hours.

KEY CONCEPTS AND TERMS

THE OBJECT AND NATURE AND

Pages 1-25 of the PT (hereinafter referred to as the “Prescribed textbook”).

1.2 DEFINITION OF THE LAW OF DAMAGES

1.3 NATURE AND SCOPE OF THE LAW OF DAMAGES

1.4 THE OBJECT AND SYSTEM OF THE LAW OF DAMAGES

1.5 SOURCES OF THE LAW OF DAMAGES

Refer to the following:

Fose v Minister of Safety and Security 1997 (3) SA786 (CC)

courts use the term “appropriate relief” to refer to constitutional damages.

relevant authority mentioned in the lesson.

TITLE OF LESSON GENERAL PRINCIPLES OF THE LAW OF DAMAGES,

NUMBER OF E-TUTOR N/A

NOTIONAL DESCRIPTION COMMENTS

▪ define the concepts damage, patrimony and patrimonial loss

Lesson 2 will require nine hours.

KEY CONCEPTS AND TERMS

Read pages 27-50 of the PT to establish the meaning of damage.

2.2 MEANING OF THE CONCEPT “DAMAGE”

as a result of a damage-casing event, in the utility or quality of patrimonial or personality interest in

2.1.1 Indicate the differences between patrimonial and non-patrimonial loss.

2.3 PATRIMONIAL LOSS

Read Pages 51-61 of the PT.

the legal concept of damage.

Rudman v Road Accident Fund 2003 (2) SA 234 (SCA)

NATURE AND ASSESSMENT OF PATRIMONIAL LOSS

NOTIONAL STUDY HOURS 8

NUMBER OF ASSESSMENT- NONE

NUMBER OF E-TUTOR N/A

NOTIONAL DESCRIPTION COMMENTS

At the end of the lesson, students should be able to:

Lesson 3 will require eight hours.

KEY CONCEPTS AND TERMS

Read pages 71-102 of the PT.

3.2 THE USE OF THE COMPARATIVE METHOD TO ASSESS PATRIMONIAL LOSS IN

3.3 THE SUM-FORMULA APPROACH AS A METHOD OF DETERMINING PATRIMONIAL

no fundamental difference between negative interessse in delict and positive interesse in

3.5 MEASURING DAMAGE USING THE COMPARATIVE APPROACH AND INCORPORATING

3.6 SPECIFIC PRINCIPLES USED TO MEASURE DAMAGE IN BREACH OF CONTRACT