Exam (elaborations)

LPL4802 October/November 2024 | Due 30 October 2024

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Course
Law of Damages (LPL4802)

Institution
University Of South Africa (Unisa)

LPL4802 October/November 2024 | Due 30 October 2024. All questions answered. QUESTION 1 (ESSAY) NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS AND DAMAGES FOR PATRIMONIAL LOSS (4 pages, including rubric) PLEASE NOTE: You must present your answer in the form of an essay. Its marking rubric is ...

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lpl4802 octobernovember 2024

Institution
University of South Africa (Unisa)
Course
Law of Damages (LPL4802)

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 Question 1

1. Study the case Komape and others v Minister of Basic Education and Others 2020 (2) SA 347
(SCA) a copy of it is attached here and answer the questions below.

1.1. Discuss what the plaintiff needs to prove to be successful in a claim for shock (psychiatric
injury) as a head of damage for non-patrimonial loss. Refer to relevant authority in your answer.

To address the plaintiff's burden in a claim for emotional shock or psychiatric injury, we can refer to
both the legal principles established in South African delictual law and the specific case of Komape
and Others v Minister of Basic Education and Others 2020.

Legal Framework in South Africa
Historically, claims for emotional shock in South African law faced challenges. Emotional shock
was initially seen as a normal part of life, with the courts hesitant to allow claims unless significant
damage, such as a physical injury, had occurred. However, over time, courts began to recognize
psychiatric injuries as actionable under delict. Two leading cases demonstrate this: Bester v
Commercial Union and Barnard v Santam.

 The Requirement of Psychiatric Injury: The key element a plaintiff must prove is the
presence of a "recognizable psychiatric injury" or "psychiatric lesion." In Bester v Commercial
Union, the court recognized psychiatric injury as a "bodily injury," thus paving the way for
compensation for purely emotional or mental harm when caused by another's negligence.
Similarly, Barnard v Santam solidified that claims for emotional shock could succeed if the
plaintiff could demonstrate a detectable psychiatric injury, distinguishing this from mere grief
or emotional distress.

 Proof of Negligence and Causation: In cases of psychiatric injury, the plaintiff must
demonstrate a clear link between the defendant's negligent conduct and the resulting
psychiatric harm. Negligence is typically established through the common elements of delict:
duty of care, breach of that duty, causation, and harm. If the defendant breached their duty,
causing psychiatric injury to the plaintiff, compensation could follow.

Komape Case Insights
In the Komape case, the plaintiffs were the parents and siblings of Michael Komape, a five-year-old
who tragically drowned in a pit latrine at his school due to the collapse of the toilet structure. The
family sought compensation for emotional shock and psychiatric injury they experienced upon either
witnessing Michael’s body or learning of his death. The claim centered on emotional shock claims
related to the trauma of his death.

 Facts Relevant to Shock: Michael’s parents and siblings were deeply affected by the horrific
circumstances of his death. His mother, father, and sister witnessed his body in the latrine pit,
while his other siblings learned about the tragedy after the fact. All family members were
diagnosed with post-traumatic stress disorder (PTSD), and Michael's parents additionally
developed a depressive disorder.

,  The Court's Ruling on Psychiatric Injury: The court highlighted that to succeed in a claim
for emotional shock or psychiatric injury, the plaintiffs needed to prove a "recognizable
psychiatric injury." The High Court initially dismissed their claim on the grounds that this
injury had not been sufficiently demonstrated, but the Supreme Court of Appeal (SCA)
overturned this decision. The SCA found that the evidence of PTSD and depression constituted
sufficient proof of psychiatric injury.

Requirements for a Successful Claim for Shock
To successfully claim for emotional shock as a head of non-patrimonial loss, plaintiffs need to meet
specific requirements:

 Recognizable Psychiatric Injury: As stated in Barnard v Santam and reaffirmed in the
Komape case, the plaintiff must show that they suffered from a detectable psychiatric injury,
such as PTSD, depression, or a related disorder. Emotional distress or grief alone, while
relevant for assessing damages, is insufficient.

 Negligence: The plaintiff must demonstrate that the defendant’s negligent conduct caused the
psychiatric injury. In the Komape case, the court accepted that the defendants' negligence led to
Michael's death and, by extension, the psychiatric injuries suffered by his family.

 Proximity: While South African law does not impose the same restrictions as the United
Kingdom on proximity (e.g., the plaintiff must witness the incident), the relationship between
the plaintiff and the victim plays a significant role. In Komape, the relationship between
Michael and his family was close enough to warrant claims based on emotional shock.

 Causation: The plaintiffs must show that the psychiatric injury was directly caused by the
defendant's negligence. In the Komape case, the plaintiffs argued that the state’s failure to
provide adequate sanitation led to the death of Michael, causing their psychiatric injuries.

 Public Policy and Reasonableness: Courts often consider whether allowing such claims
would open the floodgates to litigation. However, in cases like Komape, where the negligence
is severe, courts are more willing to recognize claims.

Conclusion
In conclusion, to succeed in a claim for emotional shock in South African law, a plaintiff must prove
the presence of a recognizable psychiatric injury, caused by the defendant’s negligence, and show a
clear link between the injury and the negligent act. In Komape, the SCA recognized that the
plaintiffs had proven a psychiatric injury in the form of PTSD and depression, and the claim for
emotional shock was upheld, with significant damages awarded. This case reinforces the evolution of
South African law to acknowledge that psychological harm, when tied to a negligent act, is
compensable.

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Exam (elaborations)

LPL4802 October/November 2024 | Due 30 October 2024

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