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Article by listed attorney: Fawzia Khan

If you were involved in a motor vehicle accident and suffered bodily injury, under circumstances which was due to the negligent driving of the other motorist, or you were the victim of a medical negligence claim or any other type of what is usually termed “delictual claims”, the law will allow you to claim both patrimonial and non-patrimonial damages. Both these awards are designed to allow a claimant to receive monetary compensation for the loss he/she suffered as a result of the wrongful or negligent conduct of another.

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Patrimonial damages, is also called “special damages”. It means that you are allowed to claim the monetary equivalent of the actual loss you suffered. The rational being that a claimant must be put in the same position that he/she would have been in, but for the injury suffered. These special damages are considered liquid claims and one “sounding in money”. Examples of special damages claims are “Past and Future Medical Expenses”, “Past and Future Loss of Income”, “Loss of Earning Capacity” and “Loss of Support”. Non-patrimonial damages, also called “general damages” are those claims, which are illiquid and not immediately capable of determination. These will include claims for “pain and suffering”, “trauma”, “disfigurement” etc. All of these general damages claims are not easily capable of being quantified. The Victim's Charter is also relevant here.

How are delictual claims for future loss of income or loss of earning capacity, calculated? Well, firstly a claimant will need to prove the loss suffered, including future loss. In order to do this many claimants will need to engage the services of experts like an actuary to prove such future loss. An actuary specializes in making mathematical calculations based on proven facts and realistic assumptions about the future. Non –patrimonial loss such as pain and suffering is not proved through the use of such experts and is left to the discretion of the court.

The court will make its award based on the extent of the loss suffered. It can also make adjustments to allow for other relevant factors and contingencies that may affect the claim. The court is vested with a discretionary power to refuse or allow such claims. If a person, for example has some medical condition, which may negatively affect his ability of being employed until retirement age, the court will reduce his claim on future loss of income to take account of that contingency.


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