The applicability of the apportionment of Damages Act 34 of 1956 to contractual claims with emphasis on the development of apportionment laws in South Africa and similar foreign jurisdictions

Abstract

This study will follow the development of the rules pertaining to apportionment of damages, with particular emphasis on the Apportionment of Damages Act 34 of 1956 (‘the Act”) and its applicability to contractual claims. It furthermore delves into the current legal position in England, Australia and New Zealand. In Thoroughbred Breeders Association v Price Waterhouse 1999 (4) SA 968 (W), the Court decided that the Act was applicable to contractual claims and apportioned the damages payable by the defendant to the plaintiff. However, the matter was taken on appeal with the decision of the Court a Quo overturned. It will be argued that, although the reasoning at first glance seems sound, upon closer examination, the application of the Act need not be limited solely to delictual claims. The best manner in which to remedy this lacunae in our law is an amendment to Section 1 (1) and 1(3) of the Act, to explicitly extend the application thereof to contractual claims.