Overview of damages Flashcards
What do damages seek to do?
Damages seek to compensate a plaintiff for a legally recognised harm — to restore the status quo ante.
How is patrimonial loss under the Acquilian action determined?
Includes loss already suffered and loss that will emerge in the future. It is calculated by finding the difference in value between the plaintiff’s estate before the commission of the delict, and the value of the plaintiff’s estate had the delict not been committed. This calculation seeks to restore the plaintiff to the position that they would have been in had the delict not been committed.
The plaintiff may claim:
- loss of earnings and future earnings
- damages for the loss suffered (at the date of the delict, but sometimes up to the date of the trial)
The plaintiff must take reasonable steps to mitigate their patrimonial loss.
How are sentimental damages under the actio iniuriarum determined?
No need to prove actual loss or damages. Factors to be considered include the:
a) character and status of the plaintiff
b) nature of the words used
c) effect that they have
d) extent of the publication
e) subsequent conduct of the defendant, in particular, their attempts to rectify the harm done
How are non-patrimonial damages under the action for pain and suffering determined?
May be claimed under a variety of headings:
1) physical pain
2) mental suffering
3) disfigurement
4) loss of amenities of life
5) disability and/or loss of health generally
6) loss of expectation of life
7) any other similar headings
Courts must take into consideration:
a) the extent of the harm (intensity, nature, duration)
b) the specific purpose of the award
c) general considerations of equity
d) parity with previous awards
What are the three approaches to determining damages?
a) subjective
b) objective
c) functional
Elaborate more on the a) subjective approach
The personal experience of the plaintiff should determine the award of damages. This runs the risk of denying damages to unconscious persons, however, because there is no measure of what they may be experiencing, if any harm at all.
Elaborate more on the b) objective approach
Provides that fixed monetary awards are to be awarded for specific harms e.g. a broken arm.
Elaborate more on the c) functional approach
Regard is had for the ability of the compensation to remedy the harm suffered by the plaintiff. Because such damage is incalculable, there must be some evidence that damages for physical pain can assist in purchasing pain medication.
What is the once and for all rule?
The claim for damages must be in one single action. It cannot be several actions over a period of years.
What is the lump sum rule?
The payment of damages must be a lump sum. It cannot be paid in installments over time.
What role do collaborative benefits play in a reduction of damages?
Whether the loss has been ameliorated by another party through insurance, charity or friend support will not warrant a reduction in damages. However, medical benefits, pensions, other social grants and remarriage do count as adequate reasons to order a reduction in damages.
