Law relating to damages is one of the areas of law that governs the rules applicable to claims for loss suffered as a result of the wrongdoing of another. This article will cover damages flowing from the unlawful wrongdoing of another person.

Damage? Importantly; damage, loss or injury ("Skade" as it is called in Afrikaans), is the reduction of value in a specific right, can manifest itself physically, psychologically, or it can manifest itself in the loss of or damage to property. The event which causes the damage is ordinarily referred to as the event causing the damage or delict– as known in law. It is the combination of the above factors in law that enables you to claim for damages or loss, which essentially is the mode at which such damage or loss is made right.

What is there to think about

The question is how many times can you claim for damages as a result of damage arising from the same event causing the damage? You may realise after a year that certain damages were not claimed. When will you be able to claim twice or more from the same event causing damage. You may not even be aware that you are entitled to claim for specific losses. They are all fundamental questions as an unsatisfactory assessment or settlement of a claim can have a crippling effect on any business, landowner or any private person.

The norm

In terms of the once and for all rule it is generally accepted that a claimant only has one opportunity to claim from one event causing damage. Last mentioned refers to a court of law, whether the claimant was successful or not, may not claim again from the same event causing damage. The claimant needs to assess his damages in full and all reasonable future damages or loss arising from the same event causing the damage. To prevent the other party from raising the defence of res judicata (meaning "a matter already finalised by order of a court"). The claimant must ensure that all his reasonable damages flowing from the same event causing damage are claimed for in one go- all of it.

The exception

Two or more consequences can flow from the same event causing damage, but the latter's prerequisites are substantially different from the first. Another scenario is when the event causing the damage is continuous. In this instance, the claimant would be able to claim more than once or, it would be ideal for the claimant to institute two different actions. There are many exceptions to the above rule, for instance, but not limited to:

• Statutory insurance that applies to a specific events causing damage. The Road Accident Fund provides compensation for persons suffering damages as a result of bodily injuries sustained in the negligent driving of a motor vehicle. It is important to note that such claimants will be able to claim for material damages in a separate claim or action for damage to property.
• On the same facts as above the claimant is compensated by the Workmen's Compensation Commission for loss suffered as a result of injuries sustained during the course and scope of employment, and in this instance: the claimant will be able to claim for damage to property in a separate claim.
• On account of the death of the breadwinner, and loss on account of bodily injury emanating from the same event causing the damage must be claimed in two different claims as both have different requirements.
• Where a landowner causes a nuisance to his neighbour, the event causing the damage is only complete once the neighbour suffers a loss. The event causing damage will be complete on every occasion the neighbour suffers a loss- this can result in different claims.

In the Botha v RAF  the appellate division had to determine whether the Appellant could have a second bite of the cherry. An application initially brought to vary a settlement by order of a court to increase the claim for damages against the Respondent due to an apparent mutual mistake, which was initially dismissed and taken on appeal. The dispute arose when the Appellant realised the court order by agreement between the parties did not incorporate all the damages suffered by it. This resulted in the Respondent raising the res judicata against the Appellant's claim. The Appellate division essentially dismissed the appeal on the basis that the Appellant had already claimed in other words the matter being finalised. It emphasises the importance of a proper assessment of damages.

Conclusion

It is imperative that a claimant fully considers his damages and all possible consequential damages as a result of damage causing event. To avoid prescription and when a matter is capable of being settled as is apparent in the above paragraphs.

Let Schoemanlaw Inc assist with any civil claim or insurance related matter.

Written by Hamlet Heneke, Professional Assistant, Attorney, Schoeman Law