Delict Tutorial Question: 16 August 2004 ~ 20 August 2004 Damages Dennis and his daughter Sophie (aged 16) and his son Bill (aged 20) are walking along the pavement on Jan Smuts Avenue. Dennis is a successful accountant with his own accounting firm. Sophie is bright, energetic and doing very well at school. Sophie has just been accepted to study accountancy at Wits next year. She plans to work for her father when she graduates in five years time. Bill is an unemployed high school dropout and plans to live on the beach and surf for the rest of his days. Suddenly, a truck driven by a drunk driver swerves onto the pavement and collides with Dennis, Sophie and Bill. Dennis broke both his arms and legs. He spent two excruciating months in the hospital. ‘After leaving hospital he was unable to do any work for four weeks as he could not walk and could not write. He usually took home a salary of R 20 000,00 a month but was not paid while in hospital. As a further result of the accident he predicts his firm will lose profits of R 100 000,00 this year. Dennis’ doctors predict he will require a knee replacement operation in 10 years time, Sophie sustained severe brain damage and is in a permanently comatose state. Doctors predict that she will live out the rest of her natural life in this state. The doctors also predict that Sophie’s life expectancy is now 10 years. Dennis decides not to place Sophie in a nursing home but employees a full time nurse to care for her at home. The estimated cost of Sophie's care for the remainder of her life is R 1.000 000,00. Bill sustains a head injury and is unconscious for 5 days. He regains consciousness. He has no recollection of the accident. His doctors find that Bill has lost the ability to read.Dennis is a member, and Sophie and Bill are dependent members, of ABC Medical Aid. ‘ABC Medical Aid pays for their medical expenses. Dennis also holds an insurance policy with the General Indemnity Insurance which pays him R 20 000,00 for loss of income. Dennis institutes a delictual action on their behalf against the Road Accident Fund. (The Road Accident Fund is liable in law for claims relating to bodily injury that are caused by the driving of the motor vehicle). ‘The RAF admits its insured driver was negligent. Five weeks after close of pleadings and four years after the accident Sophie dies. ARter her death the executor of Sophie’s estate is joined as a Plaintiff in the action. With reference to the relevant cases: 1, Are Dennis and Sophie and Bill entitled to compensation? If so, what kinds of compensation is he entitled to? 2. What compensation is Dennis entitled to? If so, what kinds of compensation is he entitled to? 3. Is Sophie entitled to compensation for a loss of earning capacity? If so, how would the court quantify such loss? 4, Is Sophie entitled to compensation for pain and suffering and loss of life expectancy? If'so, how would the court quantify such loss? 5. Is Bill entitled to loss of earning capacity? If so, how would the court quantify such loss?DENNis oe 1. Brove both ave * legs 2. 2 months Ih nocp (excruciating ) @) No earnings /worte + 4 Weeks R 20 c06 p.m. Firm = @ Lost of proPits R100 ooo Tv Knee Feplaceament in lOuK SOPHIE Gmatoce ran TT I @ LiFe exp = to yes | Coe of fe exp) | eng ae “a 3. Fun - none nurse | Rl mil / ay ) S wie after clore of pl / 7G Yt after acdek she dies WF past ened ca) 7 pt siffenng prs wee + 7 Jost earnings Ss G 7 Nose of ameni G Aqui s sy tc earning capacity — |g G rh > future Medica! ep (prospechive tors ) a prs 7) pack medical exp 9) loss_of ameni her Ppt > expe 7 Ridure medical exp By OR. gh Bile < GC Ununt for 5 days 2. Lest ability to reag 7 pts =) par medica J ~7 )less. of ameniherx Medial avd payr for exp y Dennis has policy 7 pay Rte 000 for ingy as income * sue > RAF = Bodily Injury 7 so usec! to desenibe Noy patniny loss ; General‘, eS Special Pamages ‘b b Presumed to Flaw from an Uni Ach Speecfeally plecleal * proved { All non=pabumonial loss OS Well as, Prspechve patain loss L 1. Less of support I" Page endatecg = 2. Fille Medical €xp 2, Post toss oF earnings 3. Future Loss of earnings (lost earning capacity) 3. Ost & repairs 4. Funeral Expenses,DENNIS O % Damages can be claimed under cs Action for Pt Aquiltan Action ancl Rain era Suffering ! Loss of earnings, Beas, 2. Loss of profit 6. Lass & amenities of life 3. Past ymedticet ©xpP 4. Fubwe medical exp ¥ Special : fost Meclicatl Expenser ard Past lox of earnings General + Fue Medical Exp , Loss of poh , prs, loss of amenities PATRIMONTIAL COPost ond Futwe Medical & penses LA Dist gerne tase 8 [. Due to the ance arch Rr alt ale, all han current ard prspectve aa arising cut of ene harm coestray event must—he cdainect together. — [Green v Cet rer J s nts anc ryneny fen \ és 2 Past mectical exp? sthce this (5 special darage : Must be speafi cauly pleaceg | ancl prover —7 quctations) fecupts] | 3. Future medical exp: bree replacament—suigery tavoias— Prospective damage is proved on a balance of prob ® and _asessec] by the percentage of Kkelihoocl = Wid neect fo establish cost of operation date noo Faber act aly contrgency of inPtadion ~CNgubane J What of the facr thet meclical aid — patel for meeticet| exp? — Issue is Colateral Surce. Rule — Gitateral benefits arise When & celich lerdp itetf tea peneRit dH aolelition to q loss = [dea is thet, fap i compersatect lay > os a cert of the delict, fe har pot sustaneck at much damage ar cutside source Wrat the def caured — Patiome: Pre of detict is fo cemperrate, not | fo urish | Aug, Some callerterat Seureel SE fatten tte account | In aes extent” ef damage for which deF Will be lable - Potential collateral feeneFit- here is ABC Medical Pid payiag out medical SP > TW our law, only contractually or shabu tenly | granted mecticctl lenefitr are taken inte ace/ — IF a pl votunt subsenber fo a mectical aid | Rr which he pays monthly premiuss the mestica( benefitWill nok be Taken inte eee! bee ceut wilt not deny a cll to a pl who organreo hrs affairs MM such a way that he war protected agplase vist. CBotm v Rendatia I = AF Dennis’ medical benefrir were contrachiclly om Steahutarily rmposect, they wla be faker. Info account BUT a contingency wld be mace for pepechye loss Cexhaurtion of medical al Jor loss of benus | higher premiums etc) @ _Less f earnings ees farnngs. — D spent vo months in hosp and 4 wes feeevering (12 wes 1 total) , thus he war unable to carn Ro oco p.m — Ih the normal curse of events, D wld be entitled to. dain the full extent of — loss subject to © Mitigation of tess rue ang @ FD towel hie ox of cavniags on FU emp contract bu hig cantrach tec! bul In benefits Frome wlel neecl 1S he. fakes | foto dec COipperaar v Shierd J BUT ~ Fads reveal that Dennis het a policy which” pai aut R20 cco, Y 13 whether this shia be. Geducted from the cate of dofts damages— Law is that benefits under por mat contracts oF imuante are nok teen info acc/ Reason CRotha v Ronctalia 7 —$__ SPL managel hir affairr bk cuen a way frat hic wir wie be plectes ot any went, polity payr av bee Yeu Kept Up premiums, not bec of deli @ las of pofit — Company is a seperctte legeal entity, too far Ferree ; D can still earn a salary @ Adion for pain + suffering . — How do we quantify ? Non patimonial loss? determined ky Gmpar ative, method we look at ability | quality of impaked links bd onl after dotict — Generally, money not a tue qquidlent of — locs > Intended to provide solace . = Can daim Rr IZ wes pala tT suffenkg dh hosp 4 recovery and low of amenitrer Wniteol te the 12 wes that Ke dda walle or write — No Wmitahont as D was at all Hmer awase of infringementWick starr ast an eet lever salary J Changiag life cires ete For cg: She = Record to Bevrey © aciustment wid be trace to mdke allavany for jnflation (in Bailey a 25% dlecluction war made fr eta © conbhgencier © od 7 Sophie is & arck more. tkery ete so S adjustment on a beulance mini~vell ) but pl war 2 45 fo complete shaalier of proe Wick be Non — Patrmonial Pamage Non 7 fainmoal Pamage P+S; Less oF Amenities » Lass of Ue Expect © Wald clair for general camager be transmissible fo heirs 2? (Remember, Sophie cies) = Generatty where a pl dies , the claim dies with hing (a dependant's aehon WS a sep claim by the Surving dloperndants ) T[DuBeis 1 a claim is transmissilole —prouicteat close of pleselings Clits contesteutio) is (eachecl = b4 death — tn (DuBois ] issue was toss of |ife_ expect hed an eshnoted 1 PL only losing Lo ys Wor so ys te te | thus However, dam for txs of life expect was fimited fo the ( 5 Ys thet She led ancl not the 24 Urs She fost@ (dea beicg Hat there is no pont to non -patnhy (5, Hre ponr of whichis solace iF PI cannohk be consoled and the shemager will only Sone to enrich her heirs 2 PHS + Less of Amenitier of tife Re teat issue here is tat S war haw pers comatese state She Was an uncensicurs a — Our law hos 3 difP- approaches to claims of non pat dlumager of unc. pl. —~ law iS basech on S Appreacher fo asressment of non ~paiimon iol loss, @ Gerke v Racit Issue = Whether awareness of nun- pat lose shit affect quantum Yew Gay f Warhclespeartor, bot ater Used Funchonot APPMOACh + held that Ppresch is i ore a Objective (SOME cempensation musi be given 55 of happhnes: euen if pl cannot Feel (appreciate Ruy owarcl must be Aecreareg) Aeperchiag on the tmeasure of Capacity to APPEHCUE / Undl ex starol Whet Pl has (ost@ Reinecke vy mutual & Federal EE Peer Cre distinguished bhweer pts on the ene hand andl loss of Wife expect / less of amenities on the. other. Awarcl must be dependant on degree of which Pl can Mubjectvety Feel pay P+s Amenihes » Functional Appracin . Crt wil) awarck damages bec this iy On objective element of- pa pronai Which if los} whether pl Brews it or nok BUT rts will init bby looking ar following © Ghent te which aware will alleviate. vichias tek in fe DW ahat extert wilh Heel benefit heirs ®. ins v Admin Here crt tefsecot to aware any wmpens. to an unc pson for non = pat 055 — Felleveh purely subjective apprntin Cif someone cannot Feel hom, they Shion be wmptnrated for it) Wy application: = Crt is) Wkety TO award a mining | award for pts and a greater award for \oss of-amenitres [ Reinete J aire tiFe. exp Bur less oF amen + life exp wil) be limitect fo the Hime Sophie wed | sufferred and award wil Parte loe Reduced by He Pact that-a moet awardSOPHIE Aquilian Action Pain Suffering. 4 Medicetl Expenses 3. Loss of amenities of ihe (Past and Future ) 4. Pts 2. ; ren a ming realy 5. tay Pilih oepect * Special Past medical exp * General > Fudue Medliasl , Lose of earning cap, loss af amenities , prs + toss of life exp. D Perimoniat dam ages Se Meclical exp — Same ar dhoue - ® Loss of farming Capcter ty = LBaitey 7 loss of earning Sepacity war bared ON whet mother of Pl wick have ene Hetch that Clamoger quannified by estimates leareck ay ebjectve Facturs or AOL reports, “SHER, -Saphie “iy bright, energetic, aecounhyg F her dat val earns R20 coo Stuelying is an ceccountant anol pr. ~ S Wo eam fom age of 26 bo £35 yrs | © R26 coo Amnt must be. adiustect fallow for conhingenciescannot provide ber law and will only enrich heirs. ® Bonus wortS © 4o Wwost claing 7 Father shi rather brag sep action Gr \oss of support: BILL Aquitian Rekior P+S 1 Past = Medhical &xp 2 PES 3. Less oF Pmenites Special > Rast Medical &p + as above General: Less of Amen +t PS * Can daim pts Ca has to have been Felt but nok hee temembereai ) Less of Amenities t Rill domnt have a roy future He is a high school drop-aut ancl plans to live ey the beach ard surf. Ly does this mean he iy not-entitled fe damages for less of- amenities ? Ly No, ome needs to tead fo order food ect perhaps to study Rirther one dey rts will SHIV award ax amaint oulthoughy preurleectt lex than if he hal a future where reading war essential -