Source: HER LAW – Making the law work for you
By: Adv. M. Nagtegaal, J. Nagtegaal, V. Nagtegaal
Perhaps you’ve dreamed of suing that old lady who runs the corner shop and keeps telling you how healthy you’re looking and then asks how much weight you’ve gained. Or better still, accidentally slipping on some fabric softener in a supermarket and ensuring yourself a very comfortable retirement on Clifton Beach.
The reality is that it’s a little harder to get something for nothing than you may think. Here’s how it works.
Damages and the law
If someone else’s action or failure to act causes you to suffer damage, loss, or injury, you may claim compensation from that person,
In order to succeed with your claim, you must prove one of two things. You must either prove that you have a contractual claim against that person because of breach of contract on his or her part; or that you have a civil claim against that person, because of a delict being committed against you.
An example of a contractual claim for damages would be a case in which you hire a building contractor to make alterations to your house, but later the walls crack as a result of poor workmanship. You will then have a contractual claim for the amount of damages that you’ve suffered – the amount that it will cost to repair the walls. On the other hand, if someone drives like a madman and hits your car from behind, you would have a delictual claim against this person.
Breach of contract
If you claim damages because of a breach of contract against you, you must be able to prove all of the following:
§ That there has been a breach of contract by the other party. (You hired the building contractor to build walls without any cracks in it. Therefore, he’s in breach.)
§ That you suffered damage, as well as the exact extent of your damage. (If your beautiful new wall starts to crack, you’ve definitely suffered damages, because someone now has to repair it and that will cost you money. The extent of your damages will be the amount that it will cost you to have the cracks repaired.) A quote from a builder for repairing the cracks will prove the extent.
§ That you suffered damages as a direct result of the breach of contract. There must thus be a causal link between the breach and the damage, in that the damage has actually been caused by the breach. To give an example: If you and your building contractor agree on a certain expensive, durable building material to be used, but he uses a cheap alternative (without your knowledge or permission) instead, he is in breach of the contract. If the walls of the house start to crack a month later as a result of the cheap materials he used, you will be able to claim damages from him. This is a good example of where there is a causal link between the damages you suffered and the breach – one is a direct result of the other. However, should the walls of your house crack after an earthquake hits your town, it is very unlikely that you will be able to claim damages from the builder, as your damage was caused by the earthquake and not by the builder’s breach of contract. (If you can, however, prove that your walls would still be standing had he used proper materials, you might still stand a chance with a damages claim.)
§ That the damage you’ve suffered is a usual consequence of this type of breach. You must therefore prove that you and the other party, at the time of concluding the contract, had foreseen that a breach would result in this kind of damage. If damage of this sort is not a usual result of the breach committed, you must also be able to prove that you had an agreement that the damages that you’re concerned with would be compensated. Poor workmanship usually results in a financial loss when someone else must then repair the defect. It is therefore a usual consequence of this type of breach.
How much moola will you be awarded?
The way damages are measured depends on the type of claim. There is a difference between the way in which damages are determined in a case of breach of contract and in a case of a delict being committed.
THE MEASURE OF DAMAGES FOR BREACH OF CONTRACT
Damages for breach of contract are determined on this principle: through the awarding of damages, you must be put back into the same financial position that you would have been, had the contract been properly performed. In law we call this ‘positive interest’. This looks at the difference between your present financial state after a breach of contract has occurred, and the financial state in which you would have been if the contract had been carried out properly. In summary, the difference between your current financial state and the one in which you would have been had the contract been properly carried out, is the amount of damages (i.e. money) that you are entitled to.
THE MEASURE OF DAMAGES FOR A DELICT
On the other hand, ‘negative interest’ is the proper measure when one determines the amount of damages you’re entitled to in the case of a delict. The damages you’d be entitled to would be the difference between your present financial state after the delict has been committed, and the state you would have been in had the delict not taken place. The measure for damages applied in this case covers actual loss, probable future loss, as well as compensation for pain and suffering.
MITIGATION (REDUCTION) OF DAMAGES
It is not possible to claim damages for loss you could have avoided, had you taken the steps a ‘reasonable person’ in your position would have taken to mitigate (reduce) the damages. In other words, if the damages you suffered would have been fewer if you’d acted like a reasonable person and tried to reduce them, you can’t claim the entire loss.
For example, let’s say you had a contract with a plumber to fix a pipe in your house, and he committed a breach by not fixing it properly, and water is streaming everywhere. You cannot sit back, do nothing, and later claim for damage to your house. In order to mitigate your loss, you must stop the flow of water, even if it means contracting the service of another plumber and paying for it yourself. You can recover this expense (the cost of the second plumber) along with your claim for damages against the first plumber.
You are therefore allowed to claim any expenses from the wrongdoer that you incur in taking reasonable steps to minimise your damage. But the fact is that you cannot sit back and do nothing to reduce a loss that you can see looming ahead, and still expect to be compensated for the whole amount.
It is up to the other party (in this case, the incompetent plumber) to prove that you could and should have reduced your loss. If he or she is able to prove that, the amount of damages that you are entitled to will be reduced to the amount that they would have been if you had made the effort to mitigate your loss.