Unit 2 - Harm

Question 1

Discuss the appropriation of delictual action.

Answer 1

• If harm is patrimonial, compensation will follow only if the elements of the lex acquilia are present.
• If it is pain and suffering, the elements of Germanic remedy must be met.
• Violation of personality interest, the elements of the actio iniuriarum must be satisfied.

Question 2

Define damages.

Answer 2

Damages is constituted of the compensation for equal value of the value lost by the plaintiff for patrimonial loss.

Question 3

Define satisfaction.

Answer 3

Damages is constituted of the compensation for equal value of the value lost by the plaintiff for injury to personality.

Question 4

How is patrimonial loss caused ?

Answer 4

• Loss of a patrimonial element.
• Reduction in value of a patrimonial element.
• Inrease of a debt and the creation or acceleration of an expectation of debt.

Question 5

What are the forms of patrimonial loss ?

Answer 5

• Damnum emergens and lucrum cessans.
• Damage to property and pure economic (financial) loss.
• Direct and consequential loss.

Question 6

Discuss damnum emergens and lucrum cessans.

Patrimonial loss.

Answer 6

• Lucrum cessans refers to the loss of profit, in the form of prospective loss and the loss of patrimonial expectancy.
• Damnum emergens refers to all other forms of damage and in particular damage suffered up to the date of trial.

Question 7

Discuss direct and consequential loss.

Patrimonial loss.

Answer 7

• Direct loss occurrs immediately after damage-causing event.
• Consequential loss flows from the direct loss.

Question 8

Discuss prospective patrimonial damage.

Answer 8

• Total or partial frustration of an expectation means not getting all or part of what you were expecting, whether it’s a benefit, asset, or a debt.
• You may not litigate twice on the same set of facts (once and for all rule).

Question 9

What are the forms of prospective loss ?

Answer 9

• Future expenses (Medication, Treatment, Rehab).
• Loss of future income (earning capacity reduced due to disability).
• Loss of business and professional benefit.
• Loss of prospective support (Death of Breadwinner).
• Loss of chance to gain benefit.

Question 10

What are the requirements before damages can be claimed regarding prospective loss ?

Answer 10

• If there is no damage that you have already sustained, you get nothing for your prospective damage.
• You need to wait for actual damage to occur and only then can you claim for prospective damage.

Question 11

How does the once and for all rule work ?

Answer 11

• Applies to compensation and satisfaction.
• Must claim all damage (patrimonial, non patrimonial, pain and suffering) already sustained and expected in the future.
• As a result of single cause of action.

Question 12

What are the exceptions to the rule ?

Once and for all rule.

Answer 12

• Act creates a nuisance, a claim may be instituted each time such a nuisance causes damage.
• Subsidence cases (a person causes damage through unlawful excavation).
• Continuing wrong (can claim as damage occurs).
• 3rd Party liability (future medical expenses paid as they are incurred).

Question 13

What are the different non-patrimonial rights of personality ?

Answer 13

• Pain and Suffering.
• Shock.
• Disfigurement.
• Loss of Amenities.
• Shortened life expectancy.

Question 14

Discuss the objective and subjective elements of non-patrimonial loss.

Answer 14

• Objective is where loss not only exists in the mind.
• Subjective is formed by the person’s reaction to the objective impairment of their interests.