LAW OF DAMAGES FINAL PORTFOLIO EXAMINATION 2024 SEMESTER 2
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
Non-patrimonial loss and damages arising from psychiatric injury have been
recognized in South African law for several decades, though the requirements for
such claims and their relationship to constitutional damages continue to evolve. This
essay will examine what plaintiffs must prove to succeed in a claim for shock or
psychiatric injury as non-patrimonial loss, and critically analyze the Supreme Court of
Appeal's reasoning for rejecting additional constitutional damages in the Komape
case.
To succeed in a claim for shock or psychiatric injury as non-patrimonial loss, the
plaintiff must prove that they suffered a "detectable psychiatric injury" as a result of
,the defendant's negligence.1 Mere emotional distress or grief is not sufficient - there
must be a recognized psychiatric condition diagnosed by medical professionals. 2 In
the Komape case, the court confirmed that "liability could only follow if there was a
psychiatric lesion".3
The psychiatric injury must also be causally linked to the defendant's negligent
conduct. As explained in Road Accident Fund v Sauls, the plaintiff must prove "that
as a consequence of her witnessing the injury to [the victim] she suffered severe
emotional shock and trauma which gave rise to a recognised and detectable
psychiatric injury".4 The injury need not result from directly witnessing the traumatic
event - in Barnard v Santam, the court held that psychiatric injury from being
informed of a relative's death could be compensable. 5
Additionally, the psychiatric injury must have been reasonably foreseeable. As stated
in Sauls, liability depends on "a correct and careful application of the well-known
requirements of delictual liability and of the onus of proof". 6 This includes the element
of legal causation or remoteness. However, South African courts have adopted a
more flexible approach than English law, which imposes strict proximity
requirements.7
In Komape, these requirements were met as the plaintiffs had been diagnosed with
post-traumatic stress disorder and depression arising from the shocking
circumstances of Michael's death. 8 The court emphasized that their "feelings of grief
and bereavement were psychological reactions to the significant emotional trauma
they had undergone due to the shock caused by the circumstances surrounding
Michael's death and contributed to their psychiatric injuries". 9
1
P J Visser and JM Potgieter, Law of Damages (3rd edn, Cape Town: Juta 2012) 351.
2
Visser and Potgieter, Law of Damages 352.
3
Komape and Others V Minister of Basic Education and Others 2020 (2) SA 347 (SCA) [45].
4
2020 (2) SA 347 (SCA) [27].
5
Visser and Potgieter, Law of Damages 358.
6
2020 (2) SA 347 (SCA) [27].
7
Visser and Potgieter, Law of Damages 358.
8
2020 (2) SA 347 (SCA) [52].
9
2020 (2) SA 347 (SCA) [47].
, Importantly, the court clarified that while grief and bereavement alone are not
compensable, they can be considered as part of the overall psychiatric injury when
assessing damages.10 This aligns with the approach in other common law
jurisdictions that grief must be "pathological" to be compensable. 11
Turning to the issue of constitutional damages, the Supreme Court of Appeal in
Komape provided several reasons for rejecting such an award in addition to common
law damages for psychiatric injury. Firstly, the court emphasized that constitutional
damages have typically only been awarded for financial losses that would not
otherwise be recoverable at common law, such as interest on delayed disability grant
payments (para 58).12 There was no precedent for awarding constitutional damages
as a "solatium for breach of a right where there has been no financial loss, either
direct or indirect, or where the compensation had been awarded for a physical or
psychiatric injury".13
The court reasoned that awarding additional constitutional damages in this case
would effectively amount to double compensation or punishment, since the plaintiffs
were already being compensated for their psychiatric injuries through common law
damages.14 This aligns with the principle that damages should place the plaintiff in
the position they would have been in absent the wrongful conduct, but not in a better
position.
Furthermore, the court rejected the argument that constitutional damages were
necessary to compel the government to address the poor state of school sanitation.
It noted that "the documentation available shows that this has been brought home to
them time and again".15 The court felt that a declaratory order or structural interdict,
10
2020 (2) SA 347 (SCA) [49]-[50].
11
Visser and Potgieter, Law of Damages 359.
12
2020 (2) SA 347 (SCA) [58].
13
2020 (2) SA 347 (SCA) [58].
14
2020 (2) SA 347 (SCA) [59].
15
2020 (2) SA 347 (SCA) [59].
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
Non-patrimonial loss and damages arising from psychiatric injury have been
recognized in South African law for several decades, though the requirements for
such claims and their relationship to constitutional damages continue to evolve. This
essay will examine what plaintiffs must prove to succeed in a claim for shock or
psychiatric injury as non-patrimonial loss, and critically analyze the Supreme Court of
Appeal's reasoning for rejecting additional constitutional damages in the Komape
case.
To succeed in a claim for shock or psychiatric injury as non-patrimonial loss, the
plaintiff must prove that they suffered a "detectable psychiatric injury" as a result of
,the defendant's negligence.1 Mere emotional distress or grief is not sufficient - there
must be a recognized psychiatric condition diagnosed by medical professionals. 2 In
the Komape case, the court confirmed that "liability could only follow if there was a
psychiatric lesion".3
The psychiatric injury must also be causally linked to the defendant's negligent
conduct. As explained in Road Accident Fund v Sauls, the plaintiff must prove "that
as a consequence of her witnessing the injury to [the victim] she suffered severe
emotional shock and trauma which gave rise to a recognised and detectable
psychiatric injury".4 The injury need not result from directly witnessing the traumatic
event - in Barnard v Santam, the court held that psychiatric injury from being
informed of a relative's death could be compensable. 5
Additionally, the psychiatric injury must have been reasonably foreseeable. As stated
in Sauls, liability depends on "a correct and careful application of the well-known
requirements of delictual liability and of the onus of proof". 6 This includes the element
of legal causation or remoteness. However, South African courts have adopted a
more flexible approach than English law, which imposes strict proximity
requirements.7
In Komape, these requirements were met as the plaintiffs had been diagnosed with
post-traumatic stress disorder and depression arising from the shocking
circumstances of Michael's death. 8 The court emphasized that their "feelings of grief
and bereavement were psychological reactions to the significant emotional trauma
they had undergone due to the shock caused by the circumstances surrounding
Michael's death and contributed to their psychiatric injuries". 9
1
P J Visser and JM Potgieter, Law of Damages (3rd edn, Cape Town: Juta 2012) 351.
2
Visser and Potgieter, Law of Damages 352.
3
Komape and Others V Minister of Basic Education and Others 2020 (2) SA 347 (SCA) [45].
4
2020 (2) SA 347 (SCA) [27].
5
Visser and Potgieter, Law of Damages 358.
6
2020 (2) SA 347 (SCA) [27].
7
Visser and Potgieter, Law of Damages 358.
8
2020 (2) SA 347 (SCA) [52].
9
2020 (2) SA 347 (SCA) [47].
, Importantly, the court clarified that while grief and bereavement alone are not
compensable, they can be considered as part of the overall psychiatric injury when
assessing damages.10 This aligns with the approach in other common law
jurisdictions that grief must be "pathological" to be compensable. 11
Turning to the issue of constitutional damages, the Supreme Court of Appeal in
Komape provided several reasons for rejecting such an award in addition to common
law damages for psychiatric injury. Firstly, the court emphasized that constitutional
damages have typically only been awarded for financial losses that would not
otherwise be recoverable at common law, such as interest on delayed disability grant
payments (para 58).12 There was no precedent for awarding constitutional damages
as a "solatium for breach of a right where there has been no financial loss, either
direct or indirect, or where the compensation had been awarded for a physical or
psychiatric injury".13
The court reasoned that awarding additional constitutional damages in this case
would effectively amount to double compensation or punishment, since the plaintiffs
were already being compensated for their psychiatric injuries through common law
damages.14 This aligns with the principle that damages should place the plaintiff in
the position they would have been in absent the wrongful conduct, but not in a better
position.
Furthermore, the court rejected the argument that constitutional damages were
necessary to compel the government to address the poor state of school sanitation.
It noted that "the documentation available shows that this has been brought home to
them time and again".15 The court felt that a declaratory order or structural interdict,
10
2020 (2) SA 347 (SCA) [49]-[50].
11
Visser and Potgieter, Law of Damages 359.
12
2020 (2) SA 347 (SCA) [58].
13
2020 (2) SA 347 (SCA) [58].
14
2020 (2) SA 347 (SCA) [59].
15
2020 (2) SA 347 (SCA) [59].
