Facilegis – Legal Forms and Templates

Action based on damages

Action based on damages

A plaintiff suing for damages shall set them out in such manner as will enable the defendant reasonably to assess the quantum thereof: Provided that a plaintiff suing for damages for personal injury shall specify his date of birth, the nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise to such damages, and shall as far as practicable state separately what amount, if any, is claimed for –

– medical costs and hospital and other similar expenses and how these costs and expenses are made up;

– pain and suffering, stating whether temporary or permanent and which injuries caused it;

– disability in respect of –

                 – the earning of income;

              – the enjoyment of amenities of life; and

                 – disfigurement.

A plaintiff suing for damages resulting from the death of another shall state the date of birth of the deceased as well as that of any person claiming damages as a result of the death.

Damages, whether general or special, must therefore in all cases be alleged and set out in such a manner as will enable the defendant reasonably to assess the quantum thereof. Uniform Rule 18(10) and Magistrates’ Court Rule 6(9) stipulates the minimum particulars to be furnished by a plaintiff regarding personal injuries to enable a defendant reasonably to estimate the quantum thereof, and to plead thereto. A defendant, however, is not entitled to insist on specific particulars and information which would enable him/her to make precise, measured and accurate calculations of the plaintiff’s damages nor could he insist on an abridged exposition of the plaintiff’s proposed evidence in support of the various claims.

It is imperative, however, that the requirements of Uniform Rule 18(10) and Magistrates’ Court Rule 6(9) be met, since the provisions of Uniform Rules 18(12) and 30, and Magistrates’ Court Rules 6(13) and 60A, enable a defendant to apply for a pleading to be set aside if the required particulars are not furnished, such pleading, so it seems, constituting an irregular proceeding. This necessity to meet the requirements of Uniform Rule 18(10) and Magistrates’ Court Rule 6(9) is supported by the fact that it is no longer possible to supplement an incomplete or defective statement by a request for and      furnishing of further particulars. The degree of particularity required, however, depends on whether the damages are general or special, and in the latter event upon the circumstances of the case. In any event the amount claimed as damages, even though general, must be stated.

General damage is presumed, and it is accordingly not necessary to do more than to allege it generally. A defendant is not entitled to any further particularity.

As far as claims based upon fatal injury are concerned, damages claimed by dependants for loss of support are classed as general damages; but at the same time funeral expenses constitute special damages.

Patrimonial loss suffered as a result of bodily injury, such as medical and hospital expenses and a past loss of earnings, is categorised as special damage; whereas all non-patrimonial loss, such as pain and suffering, loss of amenities, disfigurement and a diminished life expectancy, and related prospective patrimonial loss and disbursements, in respect of a future loss of earnings and medical expenses, is termed or classified general damage. The rule clearly requires, at least as far as claims for bodily injury are concerned, full particulars also of the general damages. This requirement is compatible with a requirement previously alluded to, that is, that even in the case of general damages particulars must be set out in such a manner that the defendant can reasonably assess them and make a tender if he she or it should think fit. A defendant was previously entitled to particulars of general damage for the purpose of preparing for trial.

Special damages being losses which the law do not presume to be a necessary consequence of the act complained of but which depend upon the ircumstances of the case, must, as has been pointed out previously, be specially pleaded and fully established by evidence. A failure to allege special damage where this is the sole claim will therefore make a declaration / particulars of claim  bad in law. Thus, when a plaintiff alleged that owing to the defendant’s negligence in performing certain work further expenditure became necessary, but omitted to state that it had been incurred, the declaration /           particulars of claim was held to be bad in law.

When special damages are claimed for breach of contract the question may arise whether such damages are not too remote. This question depends on whether or not, at the time the contract was entered into, such damages could fairly be said to be within the contemplation of the parties as a consequence of breach of contract. It is therefore necessary to allege that such damages were within the contemplation of the parties at the time the contract was entered into and failure to do so would render the declaration / particulars of claim excipiable. An allegation that the defendant had knowledge of certain circumstances is not sufficient, and there must in addition be an allegation that the contract was entered into on the basis that the plaintiff would suffer the damages alleged in the event of the breach taking place.

Mere expectation of loss, however probable, is not enough and can never form the basis of an action for special damages, though in certain cases it may be a ground for the award of general damages in addition to an interdict.

Not only must there be an allegation of actual loss incurred but it must also be alleged that the special damages are the direct result of the defendant’s acts or negligence as the case may be. No damages can be recovered for actual loss sustained unless it is alleged and proved that such loss is the necessary consequence and direct result of the defendant’s acts or negligence, or at least one that he contemplated and intended. All other damage is too remote.

No general rule can be laid down as to the degree of precision required in pleading special damages. The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.

Where the damages are liquidated the precise amount only must be claimed, but when they are unliquidated the plaintiff is not entitled to leave the sum at large. He must assess the amount by fixing the figure which he claims, no matter how difficult it may be to do so.

When damages are claimed on separate causes of action the amounts claimed should be apportioned to each and not lumped together. To do the latter may render the declaration / particulars of claim or counterclaim excipiable.

In an action for damages for defamation the declaration / particulars of claim should set out the words used and not merely their effect. In some cases, the pleader may add (after giving particulars of the words alleged to be used) ‘or more or less those words were used’, or he may add ‘or words to that effect were used’. The same applies to claims for damages for injurious falsehood.

For more go to Notes on action (trial) proceedings