Learning Outcome 1: Discuss the compensatory function of the law of delict:

• The law of delict provides those who have suffered harm due to the wrongful
act of others. The primary aim is to restore the victim to their pre incident
position as far as possible by awarding compensation, this can take place in
the form or damages or satisfaction.

• Damages is a monetary equivalent of damage awarded to a person with the

object of eliminating as fully as possible his past as well as future patrimonial
and, where applicable, non-patrimonial damage.
• Money is thus intended as an equivalent of damage.

• If damage or loss is incapable of being compensated because money cannot

be a true equivalent of impaired interest(s).
• Satisfaction implies reparation of damage in form of injury to personality by
inter alia effecting retribution for wrong suffered by plaintiff and by
satisfying plaintiff's and / or community's sense of justice.
• Usually satisfaction = defendant being ordered to pay a sum of money to
plaintiff in proportion to wrong inflicted on him.

Learning Outcome 2: Differentiate between the terms "damage"/"harm" and

"damages"/"compensation":

• Damage/harm/loss is detrimental impact upon any patrimonial or

personality interest deemed worthy of protection by law.
• Damages relates to the remedy that is claimed for the harm that was caused
by defendants conduct
• Damages is a form of compensation for the loss/harm suffered
Learning Outcome 3: Describe "patrimonial/harm":

• Definition = patrimonial loss is detrimental impact on any patrimonial

interest deemed worthy of protection by law.
• Patrimonial loss may also be seen as loss or reduction in value of a positive
asset in someone's patrimony or creation or increase of a negative element
of such patrimony (a patrimonial debt).

Learning Outcome 4: Briefly describe the concept of “patrimony", including its

positive and negative elements:

• Positive elements = all of a person's patrimonial rights such as real rights,

immaterial property rights and personal rights (e.g. to a contractual
performance).
• Monetary value of such rights is determined by market value of object in
question as well as any limitation on such rights.
• Expectations of patrimonial benefits are also part of a person's estate and
this is legally accepted expectation to acquire patrimonial rights in future –
this refers to a chance or possibility which is of such a nature that law affords
it protection e.g. potential to earn money in future i.e. a person’s earning
capacity
• Negative elements = e.g. a debt which someone incurs
• Someone's patrimony is burdened or reduced by creation, acceleration or
increase of a monetary debt or liability.
• An expectation of debt (i.e. opposite of an expectation of benefit) is also part
of a person's patrimony – this refers to situation where a person will
reasonably have to incur a debt as a result of a delict e.g. cost of future
medical treatment as a result of bodily injuries
Learning Outcome 5: Describe the sum-formula approach to the assessment of
harm:

• The sub formula approach to the assessment of harm compares the value of
the plaintiffs estate as a whole prior to the incident which institute of the
claim, to the value of the estate after and if there is a negative impact harm
as occurred.

Learning Outcome 6: Describe the concrete approach to the assessment of

damage:

• The concrete approach involves a practical and realistic evaluation of the

actual harm suffered by the plaintiff, rather than a theoretical or abstract
calculation.
• The court aims to put the injured party in the position they would have been
in if the wrongful act had not occurred.

The concrete approach considers the following factors:

1. Actual loss: The plaintiff's proven financial losses, such as medical expenses,
lost income, and property damage.
2. Realistic hypothetical scenario: The court considers what would have
happened if the defendant had not committed the wrongful act.
3. Causality: The court assesses whether the defendant's conduct caused the
plaintiff's losses.
4. Reasonable expenses: The court considers whether the plaintiff's expenses
were reasonable and necessary.
5. Future losses: The court may award damages for future losses, such as future
medical expenses or lost income.

By taking a concrete approach, the court aims to compensate the plaintiff

fairly and realistically for the harm suffered, rather than relying on abstract
formulas or assumptions.
Learning Outcome 7: Explain the "once and for all rule" and describe the
implications thereof:

• According the once and for all rule, a person has to claim compensation for
all loss, past and future, patrimonial and non- patrimonial in a single action,
if the harm is based on a single cause of action
• The plaintiff will claim damages for harm that has not yet materialized, but
that will in all probability arise in the future.

• An action - process for claiming a remedy.

• Cause of action - a set of facts upon which an action is based.

Implications of the once and for all rule:

1. Prescription in regard to a claim for damages commences as soon as a cause

of action accrues and debt in respect of payment of damages is claimable.
• This means that all elements of a delict are present (some damage must have
occurred) and that plaintiff is aware of or should reasonably be aware of
identity of debtor and facts of cause of action.
• Generally speaking, prescription is concluded after 3 years – this implies that
where some damage has already occurred, plaintiff must generally within 3
years institute an action in which he claims damages for all damage already
sustained as well as that expected in future.
2. A plaintiff who has sued with or without success for a part of his damage, may
not thereafter sue for another part if both claims are based on a single cause
of action.
 Exceptions to the once and for all rule:

• Common law exceptions:

• Nusiance - a plaintiff may institute a claim every time the nuisance causes
harm, because one cannot anticipate future harm that may arise out of the
nuisance.
• Subsidence - where harm is caused by wrongful excavation, a cause of action
arises every time the harm arises. South African law recognizes the right of
the landowner to lateral support and if a person causes subsidence on a
neighbour's land as a result of excavations on the property, he or she could
be liable for damages.

• Statutory exceptions: Road Accident Fund:

• The Road Accident Fund Act creates liability for harm resulting from bodily
injury or death caused by or arising from the driving of a motor vehicle. The
Fund is not liable for damage to property and so the victim may sue the
driver separately using the action legis Aquiliae.
• In respect of certain expenses the Fund may compensate the plaintiff only
once the expenses have been incurred which deviates from the lump-sum
payment rule.
• The Road Accident Fund Act also makes provision for the payment of loss of
future income or support in installments.
Learning Outcome 8: Identify those benefits that are considered res inter alios acta:

• Benefits that are considered res inter alios acta are those that courts do not
deduct from the damages claim.

Examples:

1. Benefits received from insurance (both indemnity and non-indemnity)

2. Medical aid benefits where medical aid has discretion whether or not to pay
benefit
3. Paid sick leave where employer has a discretion whether or not to grant sick
leave
4. Ex gratia payment – see Byleveldt
5. Pension payments where decision to pay is discretionary
6. Solatium award

Learning Outcome 9: Identify those benefits that are not regarded as res inter
alios acta:

Benefits not considered res inter alios acta and may be taken into account when
calculating damages:

1. Medical aid benefits received under contract or statutory right

2. Sick leave payment under employment contract or statutory right
3. Pension paid out subject to contractual or statutory right
4. Free medical care in provincial hospital
5. Savings on income tax as a result of lost income
6. Social welfare grants paid to single mother iro children are deducted from
claim for damages for loss of support
Learning Outcome 10: Explain the principle that a plaintiff has a duty to mitigate
loss:

• When someone suffers harm as a result of delictual conduct, that person is

expected to take reasonable steps to limit the loss suffered, this is known as
mitigation of loss.
• Should a person incur expenses in attempting to limit the loss, the person
can recover these expenses as part of the damages award.
• We do not expect the plaintiff to take on usual steps to mitigate loss,
however, where the plaintiff does not take such steps, the plaintiff can
recover compensation for reasonable expenses only.
• Where are plaintiff does not take any steps, the plaintiff will not be entitled
to recover damages for loss that could reasonably have been prevented.
• The plaintiff does not need to prove that the steps taken with reasonable.
The onus is on the defendant to prove that the plaintiff did not take
reasonable steps to mitigate the loss, or that the steps the plaintiff did take
were unreasonable.

Learning Outcome 11: Define non-patrimonial loss/harm:

• Non-patrimonial damage = detrimental impact on personality interests

deemed worthy of protection by law and which does not affect patrimony
(estate).
• Rights of personality :
1. Physical-mental integrity
2. Reputation
3. Dignity
4. Privacy
5. Identity
6. Feelings
Learning Outcome 12: Identify the forms of injury to personality with respect in
physical-mental integrity:

• Pain and suffering : plaintiff may claim compensation for all pain, suffering
and discomfort flowing from injury, as well as consequent medical treatment
– this includes both physical and mental pain and suffering in past and in
future.
• Shock (psychological injury / lesion) : consequences of emotional shock are
usually identified with pain and suffering but may also cause further harm
through conditions such as insomnia, anxiety neuroses, hysteria or other
mental illnesses – only emotional shock of a relatively serious nature is
actionable, whereas shock of short duration which has no substantial effect
on persons health is usually ignored.
• Disfigurement : includes all forms of facial and bodily disfigurement – scars,
loss of limbs, a limp caused by a leg injury, or facial or bodily distortion
• Loss of amenities of life : refers to any disability (physical or mental,
temporary or permanent) which diminishes victims enjoyment of life,
preventing him from participating in and enjoying life as he previously could
– compensation is claimed for past as well as future loss of amenities.
• Shortened life expectancy : fact that plaintiffs life expectancy has been
reduced by his injuries is also in some cases considered to be a form of harm
for which damages may be awarded.
Learning Outcome 13: With reference to case law, explain the nature of the
foreseeability of harm, including the difference between the abstract and
concrete approach thereto:

The concept of foreseeability refers to the reasonable anticipation of harm or

injury.

There are two approaches to foreseeability:

*Abstract Approach:*

- Focuses on the reasonable person's hypothetical foreseeability. - Asks

whether a reasonable person in the defendant's position could have
foreseen the harm.
- Emphasizes the general likelihood of harm, rather than specific
circumstances.

*Concrete Approach:*

- Focuses on the defendant's actual foreseeability, considering their specific

knowledge and circumstances.
- Asks whether the defendant themselves could have foreseen the harm, given
their individual circumstances.
- Emphasizes the defendant's personal knowledge and experience.

Case law illustrates this distinction:

- *Abstract Approach:* In the case of Kruger v Coetzee (1966), the court held
that the defendant was liable because a reasonable person in their position
should have foreseen the harm.
- *Concrete Approach:* In the case of Administrator, Natal v Edkins (1991), the
court held that the defendant was not liable because they had no specific
knowledge or reason to foresee the harm.