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Article 9/2022

In assessing damages for loss of earnings or support suffered by an ex-employee, with reference to a delictual as opposed to a labour law claim, it is usual for a deduction to be made for contingencies as well as general contingencies for which no explicit allowance has been made in the actuarial calculations.  What are contingencies and what is the approach to be adopted in respect of general contingencies?

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  • contingencies are ‘the art of foretelling the future’ – however, general rules have been established: the younger a claimant, the more time he or she has to fall prey to changes and uncertainties of life, such as a downturn in the economy, leading to a reduction in salary, retrenchment, unemployment, ill-health, death, etc; the longer the remaining working life, the more likely the possibility of an unforeseen event impacting on the assumed trajectory of the person’s remaining career – as a general principle, in a pre-morbid scenario, the younger the age of the claimant, the higher the contingency
  • In Road Accident Fund v Guedes 2006 (5) SA 583 (SCA), the court referred with approval to The Quantum Yearbook, by R Koch, under the heading ‘General contingencies’, where it states that when ‘…assessing damages for loss of earnings or support, it is usual for a deduction to be made for general contingencies for which no explicit allowance has been made in the actuarial calculation. The deduction is the prerogative of the court…’.

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  • contingencies are ‘the art of foretelling the future’ – however, general rules have been established: the younger a claimant, the more time he or she has to fall prey to changes and uncertainties of life, such as a downturn in the economy, leading to a reduction in salary, retrenchment, unemployment, ill-health, death, etc; the longer the remaining working life, the more likely the possibility of an unforeseen event impacting on the assumed trajectory of the person’s remaining career – as a general principle, in a pre-morbid scenario, the younger the age of the claimant, the higher the contingency
  • In Road Accident Fund v Guedes 2006 (5) SA 583 (SCA), the court referred with approval to The Quantum Yearbook, by R Koch, under the heading ‘General contingencies’, where it states that when ‘…assessing damages for loss of earnings or support, it is usual for a deduction to be made for general contingencies for which no explicit allowance has been made in the actuarial calculation. The deduction is the prerogative of the court…’.
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?