Topic 16: Delictual remedies under the lex aquilia and the Germanic action

Nature and purpose of delictual damage award

 Once the P has proven the elements then the remedies become available
 Purpose is either to compensate for the harm that has occurred or to prevent future harm
from ensuing
 3 specific remedies
i) Damages
ii) Retraction and apology
iii) interdict

Damages:

 may be awarded in terms of one or more of the delictual actions

 calculating damages is a 2 step process
i) assess the harm by identifying and establishing the nature of harm that has been
suffered and its extent
ii) quantification – final amount adjusted for various reasons
 purpose
 compensate an aggrieved party
 under the actio legis Aquilia, a court will, as far as possible, put the aggrieved party
in the position they would have been in had the delict not occurred = negative
interest / sum formula
 Minister of Defence v Jackson:
 In awarding damages for past and future earnings, the court made
allowance for the fact that as a result of the accident the P would
not have to pay tax. This amount was deducted off the award to
ensure that he was not overcompensated
 in the case of actio iniuriarum the damages award serves to provide satisfaction
insofar as money is able to do
 the purpose of the Germanic action is to increase the P’s feeling of happiness
= called imperfect compensation / ‘reparation’
 our law does not recognise damages for a punitive function (punishment/penalty)
 this was confirmed by the CC in Fose v Minister of Safety and Security

Future loss and the once and for all rule

 harm includes prospective/future loss

 at the end of the trial the court will assess whether harm is likely to arise in future
 may include
i) future patrimonial loss
- loss of future earnings
- future medical expenses
- loss if support
- loss of profit
ii) future P & S
  process of speculation. But this must be done due to the once and for all rule, which
prevents the P from claiming damages before they actually materialise and the fact that
delictual claims prescribe after 3 years from the date of the delict

The once and for all rule

 originated in English Law

 person has to claim compensation for loss, past and future, and pat and non-pat all in one
single action
 not yet materialised but will in all probability arise in the future
 effect is that courts award damages in a lump sum
 2 approaches to the cause of action
i) The single cause approach: every harm causing event constitutes one cause of action
irrespective of the nature of the claim
ii) The facta probanda approach: the cause of action will arise as soon as all the
material requirements for the particular type of claim are present
 Has both advantages and disadvantages
o + brings the litigation to an end and prevents the same cause of action being taken
to court again
o – P has to claim all in one law suit and it is difficult to ascertain future loss…this
arises in speculation and guesswork

Green v Coetzee

o The plaintiff had previously sued in respect of damage to his motorcycle, which was involved
in a collision. He later sought to claim damages in respect of personal injuries sustained in the
same accident.
o The court granted the defendant leave to file a special plea of res judicata.
o The court found that a claim for damages under the lex Aquilia is a single cause of action and
not two – one for damage to property and the other in respect of bodily injuries

Oslo Land Co Ltd v The Union Government

o The plaintiff issued summons for losses suffered as a result of the defendant spraying locust
poison on the plaintiff’s farm. Cattle had died after being poisoned some three years before
the action was instituted. Other cattle died within the intervening period. In addition, the
plaintiff’s farm had been rendered unfit for pastoral use for at least ten years, and he had to
sell his surviving cattle at a loss.
o Faced with the problem of prescription, the plaintiff alleged that a separate cause of action
arose each time an animal died.
 o The court rejected this contention, holding that a right of action for damages arose
immediately after the spraying. This included the right to sue for prospective loss, and
prescription therefore began running as soon as the loss had been suffered.

Lombo v African National Congress

o The plaintiff contended that he had been assaulted on various occasions.

o The court found that every actionable form of maltreatment constituted a separate cause of
action and each was independently subject to extinctive prescription from the time of its
infliction.
o Claims relating to assault and maltreatment which had arisen three years prior to the issue of
summons had therefore prescribed

 The situations in Oslo Land and Lombo must be distinguished from one where a continuous wrongful
act causes continuous loss. As was stated in the Oslo Land case:
“There is a distinction between what may be regarded as a single wrongful act giving rise to one
cause of action and a continuing injury causing damage from day to day which may give rise to a
series of rights of action arising from moment to moment”

Slomowitz v Vereeniging Town Council

o Summons was served for the wrongful closure of a road some four years after the event. The
respondent contended that the claim was barred because of a local government ordinance
which required that such action be brought within six months of its cause of action arising.
o The court dismissed the respondent’s contention. Since the road had been reopened only
three months before summons was served, the plaintiff was, by reason of the continuance of
the wrongful act of keeping the road closed, vested with a cause of action against the
defendant throughout the period that the road remained closed.

 The once and for all rule is well-entrenched. Its advantages are that it prevents a multiplicity of
actions based upon a single event, and it also ensures that litigation is not prolonged.
 The term “cause of action” describes the factual basis (the material facts or facta probanda) which
give rise to a plaintiff’s legal right to sue. One must look at the totality of facts required to sustain the
facta probanda. A cause of action is determined by the material facts which need to be proved and,
if different material facts are to be proved, then different causes of action arise.
 In delict a cause of action consists of wrongful and culpable conduct, together with the occurrence
of some harm suffered as a result. Such harm is taken as being the whole loss which the plaintiff has
suffered in his or her universitas, and includes both accrued and prospective loss. The concept
contemplates the entire set of facts which gives rise to an enforceable claim, and includes all that a
plaintiff must set out in the declaration in order to disclose a cause of action.
 The case law reflects certain apparent anomalies. Personal injuries and damage to property
constitute a single cause of action. Both are forms of patrimonial loss, even though the factual detail
that needs to be proved is different. Courts have also accepted that a single cause of action arises
where damages are claimed for actual loss suffered and for pain and suffering in respect of bodily
injuries, even though the nature of the harm is different. In such an instance the factual basis of the
claim is the same. Claims for assault and deprivation of liberty are separate and distinct. And
although both involve patrimonial loss, a plaintiff’s claims in respect of personal injuries, and for loss
of support, are based upon separate causes of action. The facts from which a conclusion of
wrongfulness is to be drawn are entirely different

Exceptions
 Common law exceptions
 De Charmoy v Day Star Hatchery
 D and D deliveries
 Statutory exceptions
 Road Accident Fund Act Section 17

COLLATERAL SOURCES/ BENEFITS

 Not only suffers harm but receives some benefit as well (eg pension pay out etc)
 In assessing damages, courts have on occasion refused to consider a benefit to the plaintiff’s
estate, such as a donation or an insurance payout, on the ground that it is res inter alios actae,
collateral – meaning it is unconnected with the relationship between the plaintiff and the
defendant which the delict created
 Based on policy considerations of fairness, reasonableness and justice, the collateral source
rule serves as an ex post facto rationalisation of a judge’s conclusion that compensation, or a
benefit derived from a particular source of recoupment, is legally irrelevant to the claim
before the court.
 It is clear that the question of collateral benefits only arises where the benefit is somehow
linked to the wrongful conduct, alternatively to the loss of earning capacity: for example the
insurance or medical aid benefit paid in respect of harm suffered as a result of the defendant’s
wrongful conduct, or a charitable donation made to the plaintiff out of sympathy for the
plaintiff’s post-delict situation.
 What is not clear is whether courts are concerned with the assessment of the extent of the
harm, or the calculation of damages.
o From an assessment of harm point of view, any benefit accruing, or expected to
accrue, to the estate must be included in the universitas. Such assessment is made
at the time of the delict
o A charitable donation, a subsequent adoption of a child, or a contract concluded as a
result of the delict would not fall within the universitas: such benefits are derived
from a source or an event which is collateral to the parties.
o A right in terms of an insurance policy, or a medical aid or pension benefit in terms
of an employment contract would fall within the universitas.
 The answer comes down to a policy.
 THE FOLLOWING FACTORS SHOULD BE LOOKED AT:
o The nature of the benefit,
o The value of the benefit,
o The reasons for and basis of the benefit,
o The source of the benefit,
o The intention with which the benefit is given or received,
o The method by which the benefit is financed,
o Causation,
o Relevance of the benefit,
o The nature of the harm,
 o The nature of liability, and
o Whether or not a punitive element should be considered.
o Another factor may be added: whether the person providing the benefit would
have been able to recover that benefit from the defendant.

Dippenaar v Shield Insurance Co Ltd

o The plaintiff was a civil servant who had to retire as a result of serious injuries sustained by
him in a car accident. His claim for future loss of earnings against the third-party insurer of the
motor vehicle which had been driven by the wrongdoer was reduced in the trial court by the
amounts of pension and retirement benefits received by the plaintiff in terms of his contract
of service
o The AD confirmed the ratio of the trial court which can be summarised as follows: as the
plaintiff’s claim was based on his loss of income resulting from his loss of earning capacity, the
plaintiff’s real loss cannot be determined solely with reference to his loss of salary: the
pension and retirement benefits which are provided for in that same contract of service have
to be brought into consideration
o In this judgment the AD deviated from the standpoint according to which the fact that the
plaintiff’s loss has been totally or partially eliminated by his having received a pension or
retirement benefit is relevant in the process of ascertaining the quantum of his damages. This
type of benefit which falls die in terms of a contract of service thus cannot be ignored in
accordance with the res inter alios acta principle

See too Constantia Versekeringsmaatskappy Bpk v Victor NO (above)

Lex Aquilia: assessment and qualification of damages for patrimonial harm

 Principle of complete compensation

 This principle is tempered by the rules relating to accounting benefits, and mitigation of loss

………..

General factors that influence the award (may overlap)

Time with reference to which assessment is made

 Date when the delict occurs usually the point of reference for assessing harm
 Courts may also consider events which took place between the date of the delict and the
trial
 General accident insurance co v Summers……
 3 appeals heard together as all concerned the date to which damages had to
be discounted to present value
 Harm in each instance was prospective loss
 D’s argued that the loss should be discounted to the date of the delict, not
to the date of the trial *this would amount in smaller award of damages
than the split method advanced by the Ps
  The court held that although the point of departure regarding the date to
which harm is assessed will be the date of the delict, there may be instances
in which reference has been made to the date of trial
2. Taxation
 Courts will consider the fact that the P could, because of inability to work, save on
paying income tax, and they will deduct this from the amount awarded
 Minister of Defence v Jackson
 P injured in a collision between his veh and a military vehicle
 Variety of losses, both past and future
 Deduct savings from tax on both past and future earnings
 Underlying purpose of this is not to over-compensate the P and not to
punish the D; merely to put them in the position they would have been in
had the delict not occurred

3. Interest
 Interest rates are relevant when calculating future losses.
 When a court makes an award for future loss of earnings (loss of earning capacity), they
discount that amount to present value
 In order to do this a court has to consider interest rates which will be chosen according
to expert evidence (actuaries)/ actuarial or discount tables
4. Inflation
 Inflation causes currency to lose its purchase power and result in items becoming more
expensive as time goes by
 Ie a damages award will be worth less in future
 In cases of future loss of earnings should a court consider inflation?
 SA Eagle Insurance v Hartley
 P was involved in a motot vehicle accident
 Claimed for loss of past earnings
 Trial court considered inflation and awarded a sum of money adjusted to
compensate the respondent for the loss of the purchase power money since the
dates upon which his past losses of earnings had been incurred
 This portion of damages was the basis of the appeal
 AD held that inflation should NOT be considered with regard to past losses
 Used decision of General Accident Insurance (above) in which the court held that
it should assess harm with reference to the date of the delict. Necessary to
consider in cases of future loss but courts do NOT discount past losses and the P
receives the full amount
 = NO adjustment in cases of past loss
 Future loss, generally courts adopt a conservative approach
 Courts also adjust awards for NP loss often based on past awards, to factor in the
inflation rate
5. Currency
 Usually made in SA currency but a P may, in some circs, claim in a foreign currency
 Principle of nominalism applies and courts will award the actual amount lost irrespective
of inflation rate or fluctuations in currency
  Standard Chartered Bank of Canada v Nedperm
 P claimed damages of $2.5 Million
 Court held that this could be paid in foreign currency
 Loss was ‘felt’ in this currency
 Loss in dollars was reasonably foreseeable
6. Contingencies
 Future possibilities of some degree of probability which have an influence on the
assessment of the Ps future loss on future benefits to which he may be entitled
 They are therefore uncertain events which could affect the amount of damages awarded
and therefore courts, after calculating the amount for damages, adjust it according to
contingencies
 Eg if makes award bases on the expectation that the P will live for another eg 30 years…
they must make contingency adjustments to allow for the possibility of their
assumptions being wrong
 These adjustments will depend on what the court considers fair and just
 Some academics do not agree with contingency arguments but neverltheless courts do
take it onto account
 There are both ‘positive contingencies’ (benefit the p) and negative contingencies
(reduce the amount and prevent unnecessary benefit)
 Courts have never made upward adjustments
 No fixed formula, dep on circs of the case and expert evidence but ultimately the
discretion of the court
 Minister of Defence v Jackson
 Contingencies include the possibility of an error in the estimation of the
P’s illness, accident or unemployment which would have occurred in any
event, or which may in fact occur, and so affect the P’s earning capacity
and the inflation or depreciation of money in the future
 Natural the amount of any discount depends on the facts
 No standard rule
 Assessment is largely arbitrary
 In addition to these in Jackson…other egs
 Life expectancy – future income for a shorter period than expected
 Widows claim for loss of support – prospect of her marrying again or the
possibility of her and her H getting divorced if he had not have died
 Prospect of the P becoming unemployed due to economic recession or labour
unrest
 P’s business may have failed
 Likelihood of other non-fatal accidents

Retraction and apology

 May act as mitigating factors when assessing damages under the actio iniurum and reduce
the amount
  Historically was a complete alternative to claim of money but thought that this was
abrogated by disuse. However, it did reappear in SA law in 2002. But…still not used in its full
extent.

Interdict

 An interdict is a court order in which a P can prevent conduct that causes harm, or prevent a
continuation of harmful conduct that has already commenced
 Can be
i) Mandatory
 Compels positive action from the wrongdoer eg to destroy fake goods
ii) Prohibitory
 Requires the wrongdoer to desist from wrongful conduct or continuing
wrongful conduct eg stop a newspaper from publishing a defamatory article
 Can also be
i) Final
 Permanent ban
ii) Temporary
 Prohibits the conduct pending the outcome of another hearing
 Requirements
 A clear right
 An actual or threatened infringement of a right
 The absence of another suitable remedy
 It is not nec to prove fault on behalf of the D bc in this instance harm has not yet occurred

Conclusion

 Once the amount has been determined the court must decide whether the D is solely
responsible or whether it is appropriate to share this liability with someone else
iii)
 CASES

Fose v Minister of Safety & Security 1997 7 BCLR 851 (CC)

o The applicant (plaintiff in the Court a quo ) sued the respondent (defendant) for I damages
arising out of a series of assaults alleged to have been perpetrated by members of the South
African Police Services at the premises of the Vanderbijlpark Riot and Related Crimes
Investigation Unit.
o It was further alleged that the infringement of the plaintiff's rights formed part of a
widespread and persistent series of similar infringements by the police, in particular at
Vanderbijlpark.
o The plaintiff claimed damages arising out of the alleged assault for pain and suffering, loss of
amenities of life, insult and for past and future medical expenses.
o In addition, a sum of R200 000 was claimed under the head of 'constitutional damages. . .
which amount includes an element of punitive damages'.
o Order that leave to appeal be refused

RELEVANT SECTION

o The CC held here that damages award was no an appropriate remedy in the case’s
circumstances.
o i.e. where a person claimed ©al AND delictual remedies.
o ©al damages will be awarded only if it is necessary to do in order to vindicate an infringement
of a ©al right.
o The plaintiff had already been compensated at common law – an award of damages was not
necessary and another type of ©al remedy would be more appropriate.
o The requirements for an award of ©al damages not fulfilled in this case.

o This came leaves the door open to future litigants to argue that ©al damages may be awarded
in circumstances where the nature of the defendant’s fault precludes a delictual remedy.

Guardian National Insurance Co Ltd v Van Gool NO

Facts

o C, a minor daughter of the respondent, had sustained bodily injuries when a motor vehicle
driven by the respondent had collided with her and run over her. The motor vehicle in
question was insured with the appellant.
o The respondent, in his capacity as C's father and natural guardian, instituted action on her
behalf in a Local Division against the appellant as authorised insurer in terms of s21 of the
Motor Vehicle Insurance Act, claiming for 'estimated future medical and hospital expenses'.
o It was common cause that the respondent was financially able to support her and pay all the
estimated future medical and hospital expenses necessitated by the accident. The appellant
contended in a special plea that the respondent owed C a duty of support until her majority or
until she became self-supporting, which would include the duty to pay in his personal capacity
 all medical and hospital expenses reasonably incurred in respect of her, whereas the
respondent in his capacity as father and natural guardian had suffered no damages in respect
of such expenses: he should accordingly have sued in his personal and not in his
representative capacity.

Issue

o Whether or not C as a minor was entitled to claim compensation for future medical and
hospital expenses as prospective patrimonial loss in respect of her bodily injuries.

Law and Application

o The Court held that there were two legal rights available to C: (1) a right to claim from her
parents to pay, according to their means, her prospective medical and hospital expenses; and
(2) an additional right as the victim of a delict perpetrated against her to claim compensation
from the wrongdoer for general damages relating to non-patrimonial loss (such as pain and
suffering, loss of amenities, disfigurement and loss of expectation of life) as well as
prospective patrimonial loss such as future medical and hospital expenses.
o These two rights were co-existent: her right to personal support did not deprive her of her
delictual right against the wrongdoer.
o The Court pointed out that in the case of an infans below the age of seven years the practice
was that the guardian or curator ad litem sued on behalf of the infans in his representative
capacity, and that this was the procedure adopted by the respondent. Since the special plea
was directed at the fact that the respondent did not sue in his personal capacity, the special
plea had correctly been dismissed by the Court a quo

Conclusion

o Appeal dismissed with costs.

Minister of Defence v Jackson

Facts

o This is an appeal against the court a quo’s judgment where the respondent was awarded
damages of $450 950 against both the appellants jointly and severally. $380 000 of this award
was made up of loss of future earnings of earning capacity. Such arose from a motor car
collision
o Respondent was aged 25 at the time, was a medical practitioner employed in the Zimbabwe
National Army and was married with one child. He suffered a severe head injury, multiple
fractures of the ribs, a closed fracture of the left tibia and fibula, a mid-shaft fracture of the
right femur and multiple abrasions
o He made a slow and painful recovery but suffered permanent disability in the following
respects: a one-inch shortening of the left leg; weakness and impaired sensation in the right
leg and foot; a complete loss of his sense of smell; double vision; trouble with loss and
retention of memory; laboured speech and emotional disturbance.
o These disabilities rendered his carrying out of work in medicine extremely difficult: His
concentration is limited and he tires easily. The diplopia precludes him from engaging in any
 surgical work; and the lack of sense of smell impedes certain types of diagnosis. He has
difficulty in remembering anything read the previous day and, to overcome such lack of
memory, he is compelled to constantly make and refer to extensive clinical notes during
consultations with patients. This disability has destroyed his confidence and restricts the
patients he sees to those with fairly trivial ailments. He will never be able to practice medicine
for his own account.

Issue

o The appeal was directed solely at the quantum of damages awarded in terms of inter alia the
award for loss of earnings.
o Law and Application
o An appeal court will only interfere with the exercise of a trial court’s discretion if satisfied that
there was a material misdirection.
o In terms of loss of future earnings, the appellants took issue with the following:
o The calculation of the respondent’s anticipated future annual income but for his disabilities
o The calculation of the respondent’s anticipated future annual income with his disabilities
o The period for which the respondent would earn
o The percentage allowed as a deduction for general contingencies
o The trial court took respondent’s retiring age at 65, making the remaining span of his
anticipated working life 32 years.
o It assessed the respondent's average gross annual income but for his disabilities at $150 000,
and his average gross annual income with his disabilities at $44 000, and reduced these figures
by 50% and 25% respectively to take into account income tax liability. The average net annual
loss, that is $42 000, was then capitalised for a term of 32 years at eight percent, the
appropriate factor as shown in the actuarial tables being 11,435. This gave an amount of $480
270, from which 20% was deducted in order to adjust for contingencies; the total figure being
thereby reduced to $380000.
o The trial court held that his average earnings over the period of 32 years would not have been
less than $150 000 gross per annum. The court could not find fault with the trial court’s
postulation that without his disabilities the respondent’s average gross annual income was
likely to be this amount
o The court was inclined to agree that a 60% reduction would have been too high, but
considered the fixing at 50% far too low. The court felt that a reduction of 55% was fair to
both parties. This too is an arbitrary determination – “an informed guess if you like” -
necessitated by the absence of any material permitting of an arithmetically calculable
percentage. The judge noted that he had regard to the probability that within 16 years the
respondent's three children will attain majority and that although for a short period
thereafter, he may attract an allowance for dependants in respect of one or possibly two of
them, it would not, to any large extent, reduce the quantum of income tax he would remain
liable to pay.
o The defendant who relies upon the incidence of taxation for a reduction of damages payable
by him, must prove that the award of damages is not taxable. The respondent cannot
complain therefore if the arbitrary percentage the court considered equitable is higher than
that used by the trial court.

Conclusion

o The final calculations on this head of damage were:

o Loss of future earnings or diminished earning capacity per year = $26 574.
o Capitalised over the period of 32 years at 8% = $303 873,69.
o Reduced for contingencies by 20% = $243 098,95.
o Thus the final figure was $243 100.

Ngubane v South African Transport Services

o The appellant had suffered serious injury (a spinal fracture resulting in permanent partial
paralysis) when he fell off a train shortly after it had started moving to leave a station. In a civil
trial in an action in a Local Division against respondent, the owner and administrator of the
passenger rail services, for damages on the grounds of the negligence of the respondent or its
servants or both, it appeared that:
o the appellant had boarded a crowded third class coach on a morning train in order to go to
work;
o the coach was so crowded that he was obliged to stand close to the doorway of the coach
with his back to the centre post of the doorway, holding on the overhead strap nearest to the
doorway;
o while people were still 'pushing their way to get out' of the train and 'others were pushing in',
the train started with a jerk and continued moving forward; that passengers who still wished
to disembark or were in the act of doing so started screaming and pushing past and against
him, causing the appellant to lose his overhead hold and fall backwards out of the open
doorway of the coach and down between the platform and the train where he sustained the
spinal fracture.

o When a train stopped at a station, it was the duty of the ticket examiner, inter alia , to remain
on the platform until he was satisfied that it was safe and in order for the train to depart, ie he
had to make sure that all intending passengers had embarked on the train and that all
disembarking passengers had in fact done so. The guard had to satisfy himself that the ticket
examiner had boarded the train and, after the guard had entered the guard's van, it was his
duty to check again, by looking out of a window, that passengers were not entering or leaving
a coach before he operated the switch to close the doors of the coaches and giving the driver
the signal for the train to proceed.

o These procedures conformed to those laid down in the respondent's 'Interdepartmental

Working Instructions'. Evidence was adduced by the respondent as to the problem of crowd
control at stations and in trains, the difficulty of preventing overcrowding of coaches, the lack
of discipline of some passengers and the cost involved in introducing more ticket examiners
on each train and in using coaches with a door mechanism which could withstand the
malpractices of commuters.

o The Local Division had dismissed the appellant's claim, finding that the appellant had not
proved that the respondent had been negligent and had failed to prove that other reasonably
effective precautions could in the circumstances have been taken by the respondent to
prevent the appellant's fall from the train in the circumstances described by him and that the
respondent had proved that the risks to which the appellant had been exposed could not have
 been eliminated or minimised without substantial difficulties, disadvantages and exorbitant
costs, such factors outweighing the magnitude of the risk so that the reasonable man would
not in the circumstances have taken steps to prevent the risk of harm.

o The Court a quo , although it dismissed the claim, indicated the amount it would have
awarded under the various heads of damages, had liability been proved. Amongst these
amounts were an award to cover the costs of purchasing and maintaining a motor car (it
having been proved that it was reasonable for the appellant to return to live at his home in
Kranskop in rural Natal), and a nominal award for future medical expenses on the basis that,
although the need for future medical services had been proved, a nominal sum was all that
appellant was entitled to in order to cater for the isolated and exceptional instances when he
would not be able to make use of State medical services.

o The appellant appealed against the dismissal of his claim, contending that it had been proved
that the respondent had been negligent in failing to ensure that it was safe for the train to
commence moving. The respondent successfully applied for leave to cross-appeal against the
'findings' of the trial Court in respect of damages.

o Held, further, approving the statement of the law appearing in Joubert (ed) The Law of South
Africa vol 8 sv 'Delict' para 43 at 78 that, once it has been established that a reasonable man
would have foreseen the possibility of harm', the answer to the question whether he would
have taken measures to prevent the occurrence of the foreseeable harm depended on the
circumstances of the case and that there were 'four basic considerations in each case which
influence the reaction of the reasonable man in a situation posing a foreseeable risk of harm
to others:
1. the degree or extent of the risk created by the actor's conduct;
2. the gravity of the possible consequences if the risk of harm materialises;
3. the utility of the actor's conduct; and
4. the burden of eliminating the risk of harm' that, on the evidence, it could hardly be contended
that considerations (1) and (2) would not have prompted a reasonable man to take steps to
prevent the occurrence: the risk - in fact the near certainty - of serious, if not fatal, injury
resulting from starting a train when persons were in the act of leaving or boarding a coach was
as obvious as could be.

o Held, further, that, on the facts of the case and having regard to the ground of negligence
which was pertinent and relied upon, factors (c) and (d) were not material: the evidence
amply demonstrated that the act complained of created a high risk of serious injury and to
have prevented its occurrence, by carrying out the procedures prescribed, would have
involved no extra cost to the respondent; nor could the delay involved therein, if it was at all
significant, possibly weigh against the other considerations requiring the necessary safety
precautions to be taken.

o Held, further, that the Court a quo's line of reasoning had missed the point: the 'effective
precautions' which would have prevented the occurrence were really unrelated to difficulties
of costs and requirements of public utility; the overcrowded coach in the vicinity of the
doorway may have played some part in the appellant being thrust from it, but the real cause
 thereof was the conduct of the railway officials in ordering or allowing the train at that stage
to proceed.

o Held , accordingly, that it had been proved that the negligence of the respondent's servants
had caused the appellant's injuries. As to whether an award of damages to cover the cost of
purchasing and maintaining a motor car could be justified, that the evidence showed that in
the rural area where the appellant lived the roads were poor, there was no regular bus service
and buses were often crowded, it would be difficult for the appellant to board a bus and be
accommodated thereon in a wheelchair, there was no readily available taxi service, the bus
stop and taxi facilities were a considerable distance from his home, and after alighting he
would still have to find his way to his ultimate destination.

o Held , further, that the appellant would have to visit a hospital, probably in Durban, two or
three times a year to consult a urologist, he would have to pay monthly visits to a local
hospital to obtain medicines and for routine tests to be carried out on him and he would need
a physiotherapist from time to time.

o Held , accordingly, as it had been established that it would be reasonable for him to make his
home at Kranskop, the aforementioned considerations showed that he required a motor car,
and that an award for that purpose should be made.

Appeal allowed. The decision in the Witwatersrand Local Division in Ngubane v South African
Transport Services reversed.

Southern Insurance Association v Bailey NO

Facts

o Danderine Bailey, two years old, was knocked down by a motor vehicle and immediately became
deeply unconscious and suffered an epileptic seizure. She was taken to hospital and treated in
ICU. She regained consciousness two months after the accident and her progress was slow:
she was only discharged nine months after regaining consciousness.
o Her father instituted an action in a PD against appellant, insurer of the vehicle concerned, for
damages of R186 947, comprising many grounds (the one relevant for our purposes is the
claim of R110 579 for estimated future loss of earnings). The judge found in favour of plaintiff
and with regard to loss of earnings estimated that “Danderine would have earned an amount
of R36 a week as at 1981, duly adjusted for future increases due to inflation, from the age of
15 years onwards to the age of 60.”
o The appeal is thus one against the awards in respect of “loss of earnings.”

Law and Application

o In an action for damages based on negligence, the head of damages of loss of earnings is more
properly described as "loss of earning capacity".
o In cases where the damages are large, it is desirable, where it is possible to do so, to itemise the
amounts awarded in respect of pecuniary damages (such as loss of earning capacity) and non-
pecuniary damages (such as loss of amenities etc). In making separate awards, however, the
Court must guard against any overlapping and duplication.
o Any enquiry into damages for loss of earning capacity is of its nature speculative, because it
involves a prediction as to the future, without the benefit of crystal balls. All that the Court
can do is to make an estimate, which is often a very rough estimate, of the present value of
the loss.
o It has open to it two possible approaches. One is for the Judge to make a round estimate of an
amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork,
a blind plunge into the unknown. The other is to try to make an assessment, by way of
mathematical calculations, on the basis of assumptions resting on the evidence. The validity of
this approach depends upon the soundness of the assumptions, and these may vary from the
strongly probable to the speculative. It is manifest that either approach involves guesswork to
a greater or lesser extent. But the Court cannot for this reason adopt a non possumus attitude
and make no award.
o In a case where the Court has before it material on which an actuarial calculation can usefully be
made, the first approach does not offer any advantage over the second. On the contrary,
while the result of an actuarial computation may be no more than an "informed guess", it has
the advantage of an attempt to ascertain the value of what was lost on a logical basis;
whereas the trial Judge's "gut feeling" as to what is fair and reasonable is nothing more than a
blind guess. It is true that, in the case of a young child, the assessment of damages for loss of
earnings is speculative in the extreme. Nevertheless, even in such a case, it is not wrong in
principle to make an assessment on the basis of actuarial calculations.

o Where the method of actuarial computation is adopted in assessing damages for loss of earning
capacity, it does not mean that the trial Judge is "tied down by inexorable actuarial
calculations". He has a large discretion to award what he considers right. One of the elements
in exercising that discretion is the making of a discount for "contingencies" or the "vicissitudes
of life". These include such matters as the possibility that the plaintiff may in the result have
less than a "normal" expectation of life; and that he may experience periods of unemployment
by reason of incapacity due to illness or accident
o In assessing damages for loss of earning capacity, the practice of the South African Courts has
generally been to take inflation into account
o The AD has never attempted to lay down rules as to the way in which the problem of an award
of general damages should be approached. The accepted approach is the flexible one, namely:
"The amount to be awarded as compensation can only be determined by the broadest general
considerations and the figure arrived at must necessarily be uncertain, depending upon the
Judge's view of what is fair in all the circumstances of the case."

Conclusion

o The appeal is upheld with costs. The order of the trial Court is set aside and there is substituted
therefore the following: the defendant is ordered to pay the plaintiff the sum of R58 000 in
respect of loss of earning capacity
Collateral benefits

Constantia Insurance Co Ltd v Victor (Afrikaans)

Relevant Section

o “A dependant’s claim is limited to the actual pecuniary loss he has suffered as a result of the
death of the person upon whom he was dependant and the measure of his damages is the
difference between the dependent’s position as a result of the loss of support he has suffered
and the position he could reasonably have been expected to be in had the deceased not
died…From such difference there falls to be deducted any financial benefit accruing to the
dependant in consequence of the breadwinner’s death”

Ratio of Case

o There is no principle in our law which requires a minor's claim for loss of support arising from
the wrongful killing of his father to be extinguished or reduced if he should be adopted after
his father's death.
o The approach, in claims by widows for loss of support arising from the unlawful killing of their
husbands, that the possibility of remarriage should be taken into account in the assessment of
damages cannot be applied to the case of a minor (so that the possibility of adoption is not
relevant to the minor's claim for loss of support).

General factors that influence the award

General Accident Versekeringsmaatskappy SA Bpk v Uijs

o The plaintiff was a passenger in a vehicle driven by the defendant. The plaintiff had failed to
comply with defendant’s request to wear a seat belt, and was seriously injured in an accident
caused by the defendant’s negligent conduct.
o The court stated that, in many instances involving drivers, the causal negligence of one driver
may determine the causal negligence of another. It would therefore usually be equitable for a
plaintiff’s damages to be reduced by the degree of his negligence in such cases
o The court assessed that both the plaintiff and the defendant had deviated to the same extent
from the norm of the bonus paterfamilias.
o If the formula set out in Jones v SANTAM Bpk had been applied, the award of damages would
have been reduced by half. However, the AD felt that justice and equity demanded that the
plaintiff’s fault was to be considered different from that of the defendant, because the plaintiff
did not contribute to the accident
o The court found that a one-third reduction was proper in the circumstances.


Muller v Mutual and Federal Insurance Co Ltd

o In an action for damages in terms of the Multilateral Motor Vehicle Accidents Fund Act the
plaintiff, a professional winemaker who had sustained serious injuries in a motor vehicle
accident, claimed certain damages, under the head of loss of income, for losses which she had
sustained in her wine-making business which had been caused by the fact that the plaintiff
had been unable to attend to her business because of the injuries sustained.
o The Court awarded her an amount for such loss. The plaintiff claimed further the amount of
interest which she had had to pay on an additional loan from her bank on overdraft to cover
the aforesaid loss she had suffered in her business. The Court held that this claim was in
substance indistinguishable from a claim for interest on damages.
o The plaintiff was seeking in effect to recover pre-judgment interest on amounts equivalent to
the damages which the Court had awarded for loss of income. These amounts had at all times
been unliquidated prior to their final assessment in the present judgment. The Court held
further that to award the amounts claimed as interest thereon would be to allow the plaintiff
interest on such unliquidated damages prior to judgment, in conflict with the time-honoured
common-law rule which did not permit the recovery of interest on damages which were
unliquidated.
o The Court pointed out that, if the amount claimed were awarded, the plaintiff would in effect
receive interest on the amounts awarded in the judgment calculated as from a date and
running during a period of time when such amounts remained unascertained. The Court held
further that there were no exceptional circumstances existing which might have justified a
departure from the rule.