Difference between Damage and Damages
There is a very big difference between the two terms namely damage and damages, in which people often get confused. In order to make this difference clear, this is to be stated that damage are an injury or loss happened to a person or a property. Whereas the law of damages states that a damage refer to a claim made by a victim party to the case from guilty party to compensate for the injury of loss occurred due to the mistake of the guilty party.
As it is clear that an animal cannot be held liable for the injury occurred to a person caused by them and hence there are much difference between the remedies available in the cases of damage caused of human and damages caused of animals. A person cannot be held personally liable in case of injury occurred cause of his/her pet. However, there are some similarities too. A person can get a monetary remedy in the cases of damage caused by an animal, similar to in those cases where the reason behind a damage is a human.
Future patrimonial losses are not certain and therefore one can take the help of an expert to decide the same. Contingency is a concept where the judges evaluate the factors that can put an impact on the number of damages. These contingencies are the present factors that can have an impact in future and therefore court considers the same while granting any damages.
In the decision of the case of Coughlan NO v Road Accident that fosters cares are not related to the damages for the loss of support and the subjective grants arrived from the roots of constitutional rights developed in relation to the children in need. It was held that where constitution provides a right, an even consist of damage need not be there.
The concept of duty to mitigate demands that when a person suffers from a loss, he/she should try the best to minimize the level of damage. In the given case, Mendel can argue that Norman & Co. had a duty to mitigate and they might not rebuild the house but he will not succeed in his claim as Norman & Co. were performing the duty of care in respect to the customers of their houses.
In general, in cases of breach of contract, the other party can sue to guilty party for the damages, monetary as well as others and can ask for the damages for indirect but connected loss. In the given case, Norman & Co. has suffered from a direct loss of cost of demolishment and other material included in the development of house. Further, some indirect losses were also there as new bricks were costly in comparison to contacted one with Medal and hence court will consider both of the losses while providing damages.
Similarities and dissimilarities between remedies in cases of animal damages
Contemplation rule says that in cases of breach of contract, the victim should be granted reasonable damages only. In the given case, the difference amount of old and new bricks should not be granted as damages as the same would not be fair.
Market price rule says that if either party to the case suffer a loss cause of the difference between two subjective prices, then he/she will be held eligible to take the difference as damages if the same is a result if the act of the defendant. Here Y suffered from a loss of difference in two prices cause of x and therefore he can ask the difference amount from x.
Damages for inconvenience can be granted only in those cases where peace of mind of the claimant is the subject matter of the contract. It was held in the case of Jarvis v Swan Tours Limited, that the damages for inconvenience can be asked in case of disappointing holidays. In the given case, the transaction was simply a business contract and there was no factor of peace of mind. This is the reason that Y cannot claim Damages for the inconvenience
In the common law, it is well known that a person who is suffered from a loss can ask for the damages from guilty person. Under contract law, a person who is minor (has not attained the age of 18 years) cannot be the party of a contract and has no legal rights. However a minor can take benefits out of a contract. In such a situation, the guardian of a minor can ask for the damages form third party on behalf of a minor. Applying the provisions of common law and contract law, Y can claim the damages from the subjective hospital on behalf of X.
The final claim of B would be R 6120000. The claimant is a wife of B and is very beautiful. There is a probability of her remarriage. This is a contingency of future possibility. Using the contingency/Probability method to calculate the risk, this is to be stated that 20% of the amount will be reduced from the award cause of future probability.
While determining the fair value of damages, the court must consider all the factors such as objective and subjective one. In the given case, B was the wife of Y who was killed in a motorbike accident. It was a very objective factor but it has also been stated that she was very beautiful. It was a subjective factor of the case that needs to be review while granting the decision of this case.
There is a difference between certainty test and probably method to calculate the amount of final claim. The probably method is often known as a blind guess, which is correct. While using this method, judges of the courts consider those factors that are not certain and there is only a probability of the occurrence of the same. However, what if the probability does not get fulfilled. In such a situation, the victim party has to suffer the loss, which is not justifiable. This is the reason that a probability method to calculate future loss is a blind guess.
Case Laws
Coughlan NO v Road Accident 2015 ZACC 1
Jarvis v Swan Tours Limited [1973] QB 233
Other resources
Fawzia Khan (2018) Personal Injury Claims. < https://www.findanattorney.co.za/content_personal-injury-attorney>.
PL Monyamane (2018) Social security ‘benefits’ and the collateral source rule – an analysis of the three Coughlan decision < https://www.dejure.up.ac.za/index.php/volumes/49-vol-2-2016/notes/monyamane-pl>
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