LPL4802
PORTFOLIO Semester 2 2024
Unique Number:
Due Date: 30 October 2024
QUESTION 1 (ESSAY) NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS
AND DAMAGES FOR PATRIMONIAL LOSS
1.1.
To succeed in a claim for emotional shock, or psychiatric injury, under South African law,
certain elements must be proven by the plaintiff. These elements are closely linked to the
general principles of delictual liability and have been shaped by both common law and
judicial precedent. A delict is a civil wrong that results in harm or loss, and to claim
successfully, all five elements of a delict must be present: conduct, wrongfulness, fault,
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QUESTION 1 (ESSAY) NATURE AND ASSESSMENT OF NON-PATRIMONIAL
LOSS AND DAMAGES FOR PATRIMONIAL LOSS
1.1.
To succeed in a claim for emotional shock, or psychiatric injury, under South African
law, certain elements must be proven by the plaintiff. These elements are closely
linked to the general principles of delictual liability and have been shaped by both
common law and judicial precedent. A delict is a civil wrong that results in harm or
loss, and to claim successfully, all five elements of a delict must be present: conduct,
wrongfulness, fault, causation, and harm or loss. In the context of emotional shock,
these elements are particularly scrutinized. Below is a discussion of what the plaintiff
must prove to succeed in such a claim, with reference to the case of Komape and
Others v Minister of Basic Education and Others [2020 (2) SA 347 (SCA)] and other
relevant authorities.
1. Conduct
The first requirement is the defendant’s conduct. This refers to any act or omission
by the defendant that causes the harm suffered by the plaintiff. In cases of emotional
shock, the plaintiff must demonstrate that the defendant’s conduct was the cause of
their emotional distress. This can occur when the plaintiff witnesses or hears of a
distressing event, such as the death or injury of a close relative. In the Komape case,
the plaintiffs witnessed the aftermath of their son’s tragic death when he drowned in
a pit latrine at school. The school's and government authorities' failure to ensure
proper and safe sanitation facilities amounted to the harmful conduct leading to the
emotional shock suffered by the plaintiffs(Reported case law).
2. Wrongfulness
Wrongfulness in delict refers to the breach of a legal duty not to cause harm. In
cases of emotional shock, the plaintiff must show that the defendant’s conduct was
wrongful, i.e., that the conduct was unreasonable and violated a duty of care. The
duty of care is often determined by the foreseeability of harm. In the Komape case,
the court had to consider whether the school authorities had a legal duty to ensure
the safety of their students, particularly in relation to the state of the pit latrines.
Given that the dangerous condition of the toilets was well known and that no action
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was taken to remedy it, the court found that the authorities’ failure to act was
wrongful. The harm suffered by the plaintiffs was reasonably foreseeable, as a
young child falling into a pit latrine was an obvious risk under the circumstances
(Reported case law).
3. Fault (Negligence or Intention)
To establish fault, the plaintiff must prove that the defendant acted either negligently
or with intent (dolus). In most cases of emotional shock, negligence is the form of
fault that must be proven. Negligence occurs when the defendant fails to exercise
the level of care that a reasonable person would in similar circumstances. The test
for negligence includes determining whether a reasonable person in the defendant’s
position would have foreseen the likelihood of harm and taken steps to prevent it.
In Komape, the court found that the education authorities were negligent in their
failure to address the hazardous conditions of the pit latrines despite numerous
warnings and complaints. The foreseeability of harm, particularly to young children,
was clear, and the failure to remedy the situation amounted to negligence. The
authorities' inaction directly contributed to the circumstances that led to Michael
Komape’s death and the subsequent emotional shock suffered by his family
(Reported case law)(Reported case law).
4. Causation
The plaintiff must also prove causation, which involves demonstrating a link between
the defendant’s conduct and the harm suffered by the plaintiff. There are two types
of causation: factual causation and legal causation. Factual causation refers to
whether the defendant’s conduct factually caused the harm, which is typically
determined by the "but-for" test (i.e., but for the defendant’s conduct, the harm would
not have occurred). Legal causation deals with whether it is fair and reasonable to
hold the defendant liable for the harm caused.
In the Komape case, factual causation was established because the authorities'
failure to maintain the school’s sanitation facilities led directly to Michael’s death and
the resultant emotional shock experienced by his family. The court also considered
legal causation, ultimately concluding that it was reasonable and just to hold the
defendants liable given the foreseeable nature of the harm(Reported case law).
