LAW OF DAMAGES FINAL PORTFOLIO
EXAMINATION 2024 SEMESTER 2
THIS ANSWERS ARE 100% EXCELLENT BASED STRICTLY ON PRESCRIBED
STUDY MATERIALS FOR THIS EXAM. TO WIT:
1. Visser PJ and Potgieter JM, Law of Damages (3rd edn, Cape Town: Juta
2012)
2. Komape and Others V Minister of Basic Education and Others 2020 (2)
SA 347 (SCA)
RULES OF REFERENCING ARE STRICLY FOLLOWED IN TERMS OF OSCOLA
RULES OF LAW REFERENCING!!!!!
NAME: XXXXXXXXXXXXXXX
STUDENT XXXXXXXXXXXXXXXXX
NUMBER:
MODULE CODE: LPL4802 (Law of Damages)
SIGNATURE: XXXXXXXXXXXXXXX
DATE: 30 OCTOBER 2024
,QUESTION 1 (ESSAY)
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS AND DAMAGES
FOR PATRIMONIAL LOSS
The case of Komape and others v Minister of Basic Education and Others 2020 (2)
SA 347 (SCA) dealt with claims for damages arising from the tragic death of 5-year-
old Michael Komape, who drowned after falling into a pit toilet at his school. This
essay will discuss what a plaintiff needs to prove to succeed in a claim for shock as
non-patrimonial loss, and critically analyze the court's reasons for rejecting the claim
for constitutional damages.
To succeed in a claim for shock as non-patrimonial loss, the plaintiff must prove that
they suffered a detectable psychiatric injury as a result of the defendant's wrongful
and negligent conduct.1 Mere emotional distress or hurt feelings are not sufficient -
there must be a recognizable psychiatric illness diagnosed by medical experts. 2
In the Komape case, the court confirmed that liability for shock requires proof of "a
detectable psychiatric injury".3 The plaintiffs had to show they suffered from
conditions like post-traumatic stress disorder or depression, not just normal grief or
sadness. This aligns with the approach in other common law jurisdictions that
damages for "nervous shock" are only recoverable where there is "either a physical
consequence or some medically identifiable psychiatric illness or injury". 4
1
P J Visser and JM Potgieter, Law of Damages (3rd edn, Cape Town: Juta 2012) 107.
2
Visser and Potgieter, Law of Damages 108.
3
2020 (2) SA 347 (SCA) [31].
4
2020 (2) SA 347 (SCA) [30].
, Importantly, the psychiatric injury must have been caused by the defendant's
wrongful conduct. There must be a causal link between the defendant's negligence
and the plaintiff's psychiatric harm. 5 In Komape, the court accepted that the
education authorities' negligence in providing unsafe toilet facilities had caused the
plaintiffs to suffer psychiatric injuries like PTSD and depression when they learned of
Michael's horrific death.6
The plaintiff does not necessarily have to have witnessed the traumatic incident
directly. The Komape judgment confirmed that South African law allows claims by
"hearsay" plaintiffs who suffer psychiatric injury after being told about harm to a loved
one, without having been present. 7 This is more flexible than the approach in some
other jurisdictions.
However, there must still be sufficient proximity between the plaintiff and the
traumatic event or its aftermath. The court will consider factors like the relationship
between the plaintiff and the primary victim, the plaintiff's proximity to the incident in
time and space, and how the plaintiff learned of the event. 8 In Komape, the parents
and siblings who saw Michael's body or quickly learned of his death were found to
have sufficient proximity.9
The psychiatric injury must also have been reasonably foreseeable. The defendant
need not have foreseen the exact psychiatric condition, but should have reasonably
foreseen that their negligence could cause psychiatric harm to persons in the
plaintiff's position.10 Given the horrendous circumstances of Michael's death,
psychiatric harm to his family members was clearly foreseeable.
5
Visser and Potgieter, Law of Damages 109.
6
2020 (2) SA 347 (SCA) [52].
7
2020 (2) SA 347 (SCA) [26].
8
Visser and Potgieter, Law of Damages 110.
9
2020 (2) SA 347 (SCA) [12]-[14].
10
Visser and Potgieter, Law of Damages 111.
