Individual issues and the class-action mechanism: Determining damages in single-accident mass personal injury class actions
Authors Theo Broodryk
Affiliations: Senior Lecturer and Manager: Legal Aid Clinic, Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 824 – 846
In a personal injury class action, the extent of the injuries and the quantum of damages suffered by each member are individual issues. The problem is that in a personal injury class action, if the class consists of a large number of victims and each victim is required to present oral evidence to prove his or her damages individually, the trial may take years to conclude, and some claimants could possibly pass away by the time the court delivers judgment. It would overburden proceedings and cause undue delay. Accordingly, it is necessary, in such circumstances, to utilise alternative innovative, practical and time-efficient procedures that would enable the determination of each individual’s damages. Our courts have not properly considered the approach to be followed when determining damages in mass personal injury class actions. This article evaluates certain alternative methods to determine damages in mass personal injury class actions in view of the existing procedural framework developed by our courts, with specific regard to the approaches followed by certain foreign jurisdictions.