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LPL4802 Exam Portfolio
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QUESTION 1 (ESSAY) NATURE AND ASSESSMENT OF NON-PATRIMONIALLOSS 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
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).
5. Harm or Loss (Psychiatric Injury)
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