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LPL4802
PORTFOLIO SEMESTER 2 2024
UNIQUE NO.
DUE DATE: 30 OCTOBER 2024
, QUESTION 1: NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS AND
DAMAGES FOR PATRIMONIAL LOSS
Introduction
In South African law, non-patrimonial loss refers to losses that cannot be measured in
terms of money, such as emotional pain, suffering, and psychiatric injury. Patrimonial
loss, on the other hand, refers to a quantifiable financial or material loss. The Komape
case illustrates the challenge of seeking compensation for non-patrimonial losses like
emotional distress and psychiatric harm (shock), as well as the difficulties in claiming
constitutional damages in addition to common law remedies.
1.1 Claim for Psychiatric Injury (Shock) as a Head of Damage for Non-Patrimonial
Loss
To succeed in a claim for psychiatric injury or shock, a plaintiff must meet several
requirements established under South African common law. The courts have developed
a framework for assessing such claims, often with reference to judgments from similar
cases. One prominent case to consider is Bester v Commercial Union
Versekeringsmaatskappy van SA Bpk, which laid down the key requirements for a
successful claim for psychiatric harm:
1. Existence of a Recognised Psychiatric Injury: The plaintiff must show that
they have suffered a recognised psychiatric injury. In Komape v Minister of Basic
Education, the court considered whether the parents' grief and distress over their
child’s death amounted to a psychiatric injury. Emotional suffering alone is
insufficient; a plaintiff must show they have experienced a condition like post-
traumatic stress disorder (PTSD) or depression that is medically diagnosable.
2. Causation: There must be a direct link between the negligent act and the
psychiatric injury. In the Komape case, the court examined whether the
defendant's negligence directly caused the shock or psychiatric harm
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