Damages and Compensation for Patrimonial and Non-Patrimonial Loss in South African Law

Quantum of Damages and Satisfaction for Non-Patrimonial Loss (Injury to Personality)

Question 1 (Essay)

Quantum Of Damages And Satisfaction For Non-Patrimonial Loss (Injury To Personality)

You must present your answer in the form of an essay. Its marking rubric is in the folder for this examination.

Study the case of Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) and answer the question below.

In para [92], the court exclaimed [sic], “An unliquidated claim for damages must be pursued by institution of an action.” However, contrary to this accepted practice, the attorneys for the respondent brought the claim of damages for defamation in an application proceeding. Discuss fully, the reasons the court put forward in support of accepted practice, that general damages for defamation must be instituted in an action proceeding. Refer to relevant case law and legislation in your answer. (25)

Question 2 (Theory)

Collateral Source Rule And Compensating Advantages (Res Inter Alios Acta)

In this part question, we provide you with a description of certain concepts that relate with the collateral source rule. You are required to copy out each description and then state the legal concept it describes.

2.1 Evidence of a transaction between A and B that is disregarded in the calculation of damages B claims from C.

2.2 An act of generosity and/or payment received by the plaintiff from a third party in the absence of any service rendered which must necessarily be disregarded in the computation of his or her damages.

2.3 The idea that the insurer may assume the position of the insured in order to claim all the rights that the insured had against the third party.

2.4 Damaged property, the value of which is relevant in the assessment of the actual damage to the property.

2.5 The responsibility/expectation that one who claims damages must undertake reasonable steps to restrict his or her damage.

2.6 The idea that a certain benefit may or may not be considered in the calculation of damages is not cast in stone. However, legal writers have developed certain principles to be considered. Identify and discuss any five of these principles. Provide credible examples in each instance.

Question 3 (Set Of Facts)

Damages For Patrimonial Loss

Read the facts below and answer the questions set on them below. While driving his newly acquired Mercedes Benz C180, 2020 model, with registration number and letters AA 00 CD GP along R82, south of Johannesburg, South Africa, Cornor McGregor, a 38-year-old South African male, who also holds a US citizenship, was involved in a serious motor collision accident. The accident was entirely caused by the driver of the other vehicle, who lost control of his delivery  van, with registration number and letters BB 00 TT GP, and rammed into the back of Cornor’s car. There is evidence that the delivery van belongs to HHT Bakeries (Pty) Ltd. The company has conceded liability. This accident happened on or about 16 December 2019. At the time of the accident, Cornor was permanently employed as an orthopaedic surgeon at a local private hospital, earning in excess of R250 000 per month. He sustained numerous injuries, notably: a soft neck tissue, a fractured left-hand thumb, and left foot toe. On top of that, he sustained a deep wound on his left temple. He spent 21 days in comatose, subsequent to the accident. He had used up all his sick leave days for the year, and could not be granted further leave with pay. He then spent a further four months after being discharged, recuperating at home. Evidence from the psychologist was that he had an intermittent severe loss of memory. His employer terminated his contract as a result – as he could not carry out his normal duties in terms of the contract. The value of the wreck stood at R600 000. Before the accident, his vehicle had a market value of R1 200 000. Cornor also lost his USD 2500 worth of Apple watch, a brand only available in the US market at the time of the accident. It was damaged beyond repair in the accident. Shortly before being ferried away in an ambulance, a towing service provider offered to whisk away his car, but Cornor declined. Overnight, thieves broke into the car, while on the roadside, and stole its battery worth R45 000 and the four wheels and rims worth a combined figure of R80 000. Exactly 14 months after his dismissal from work, Cornor arrives in your office seeking advice on who to sue for his losses.

3.1 State two patrimonial claims he may institute against the Road Accident Fund and the documents he should provide to substantiate his claims.

3.2 State any three injuries in respect of which he may not claim non-patrimonial loss from the RAF and the reason why it is so. (4)

3.3 Cornor tells you that HHT Bakeries has turned down his claim for the combined loss of wheels and the battery. Explain to him why it is so.

3.4 Cornor wishes to claim against HHT Bakeries the value of his Apple watch in USD. Use authority to shed light on his chances of success.

3.5 Besides the value of the watch, what else can Cornor claim from the HHT Bakeries? Explain to him why he cannot claim it from the RAF. Provide authority to your answer.

3.6 Cornor tells you that he urgently needs money to pay for past hospital bills and for his subsistence while awaiting the outcome of the trial on the overall quantum of damages. Advise him on what he can do. Use legislation to support your answer.

3.7 What is the 2021 statutory limit in respect of claims for loss of income and loss of support?