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rrllb81 assignment 3 due 8 nov 2024 semester 2
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, Law of DamagesLPL4802
SEMESTER 2
OCTOBER/NOVEMBER 2024 EXAMINATION
(NON-VENUE BASED EXAMINATION)
DUE DATE 30 OCTOBER 2024
, Question 1
1.1 A plaintiff who wants to prove a claim for shock, as one of the heads of damage for
non-patrimonial loss, will have to meet certain legal requirements. This discussion
is premised upon the principles enunciated in the relevant case law on this matter,
including that found in Komape and Others v Minister of Basic Education and
Others 2020 (2) SA 347 (SCA).
The claimant must establish a recognized psychiatric injury resulting from the
accident. Other common conditions might be post-traumatic stress disorder,
intense anxiety, or depression. In this regard, medical evidence is of prime
importance. Often, this is by a qualified psychiatrist or psychologist to confirm not
only the diagnosis but that the injury is related to the traumatic event.
Proximity is the basic test in the determination of liability arising from shock. In this
case, the plaintiff must show either physical proximity or relational proximity to the
event. In Komape, this court was confronted with an emotional effect of the
traumatic incident of a child on the family member and emphasized that the
immediate family could also claim damages for mental distress. This case is
consistent with the principles laid down in Murray v Minister of Defence [2001] 3
SA 390, in which the court recognized claims from close relatives of a victim.
Foreseeability means the plaintiff needs to establish that the psychiatric injury was
a foreseeable consequence of the defendant's actions: A reasonable person in the
position of the defendant ought to have foreseen that he would cause psychiatric
harm to a person in the position of the plaintiff. For further comments on the test
for foreseeability, see Katz v. Minister of Safety and Security [2005] 5 SA 201
(SCA), where the court addressed the probability of emotional distress from the
action of the defendant.
There is a need for the plaintiff to show that the psychiatric injury is a direct result
of the conduct of the defendant. It needs to be a direct link. The injury should not
come merely because of the consequences of the event, or the distress suffered
by others. This approach is aptly echoed in the decision found in Graham v Minister
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