South Africa: Liability For Emotional Shock

The Supreme Court of Appeal recently considered the question of liability for emotional shock and resulting detectable psychiatric injury in the matter of Road Accident Fund v Sauls 2002 (2) SA 55 (SCA).

On 18 March 1994, Stephen Sauls parked his motorcar, a BMW, in a parking bay in Adderley Street, Cape Town. He was accompanied by his fiancée, Magdelene Jackson, the plaintiff in the action. The couple did some shopping during the lunch hour and returned to the motor vehicle. The plaintiff got in and sat in the front passenger seat.

Sauls intended to get into the driver's seat. However, he saw a truck driven by one Sadick approaching his vehicle from the back in its designated traffic lane, that is the lane next to the parking bays. Sauls saw that due to the size and proximity of Sadick's vehicle, it would not be opportune at that moment to open the door on the driver's side and get into his car. He then leaned against the car with the front part of his body pressed against the door waiting for the vehicle to pass. However, in spite of this precaution, he was struck by the vehicle. He was thrown forward and landed in front of the BMW.

The plaintiff saw the collision from her spot in the passenger's seat and rushed to his aid. Bystanders warned her not to touch or move his body for fear of a spinal injury. They also remarked on the deathly pallor of his face. The plaintiff thought that Sauls had been killed or seriously injured, among other things, that his spinal column had been fractured. She was led away from the scene in a state of shock and turmoil.

Sauls was taken to the hospital in an ambulance accompanied by the plaintiff. At the hospital it transpired that he had suffered, apart from the concussion, very slight injuries. The plaintiff however was in a condition of shock and confusion and was very tense. Evidence was presented that on the night of the accident she slept badly and experienced nightmares, reliving the whole trauma. The next day she was treated for shock. On the Monday she returned to her work as a Senior Staff Nursing Sister, but could not cope. She was subsequently diagnosed with a post-traumatic stress disorder, which had become chronic and unlikely to improve. She is now withdrawn, does not want to see anyone, is deeply depressed, suffers a pattern of sleep disturbance with intrusive and morbid dreams. In short, her case was that, as a consequence of her witnessing the injury to Sauls, she suffered emotional shock and trauma, which gave rise to a recognised and detectable psychiatric injury, namely post-traumatic stress disorder.

In the Court a quo, it was common cause that:

(a) The insured vehicle driven by Sadick had struck Sauls.

(b) The said collision was caused by Sadick's negligence.

(c) Sauls was injured.

(d) The respondent had in fact suffered shock and emotional trauma, resulting in chronic post-traumatic stress disorder.

(e) There was at the time of the collision a very close relationship between the respondent and Sauls. They were betrothed, had been living together for some time and were indeed married before the commencement of the trial.

The Court considered the judgment in Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) where it was held that there was "no reason in our law why somebody who, as the result of the negligent act of another, has suffered psychiatric injury with consequent indisposition should not be entitled to compensation, provided the possible consequences of the negligent act would have been foreseen by a reasonable person in the place of the wrongdoer".

In the aforementioned case the Court held further that as far as negligence and the foresee- ability tests are concerned, foresight of the reasonable possibility of harm is required. Foresight of a mere possibility of harm will not suffice in this regard as held in Mkhatswa v Minister of Defence 2000 (1) SA (SCA). The general manner in which the harm will occur must be reasonably foreseeable, though not necessarily the precise or exact manner in which the harm will occur.

In order to be successful, the Court argued, the Plaintiff must prove, on a balance of probabilities, that Sadick should have foreseen as a reasonable possibility that she would be harmed. This does not mean that she must prove that Sadick should have foreseen the precise or exact manner in which the harm to her would or could occur, but that she must prove that the general manner of its occurrence was reasonably foreseeable.

This analysis would necessarily lead to the following factual question which the Court had to answer: Did the Plaintiff succeed in proving on a balance of probabilities that a reasonable person in Sadick's position should have foreseen that, by his careless driving, he would knock over Sauls and that, as a consequence, someone close to him would witness the collision and would suffer severe shock, distress and emotional trauma resulting in a psychiatric disorder?

The Court held that, after evaluating all the relevant facts, the Court a quo correctly held that that the harm suffered by the plaintiff was foreseeable as a reasonable possibility.

On behalf of the appellant much was made of the fact that, despite the severity of the collision and the body of Sauls being spun around and thrown some distance forward, he was only slightly injured. It was argued that under these circumstances, the normal and foreseeable reaction of a person in the plaintiff's position would be some shock and trauma which would disappear in a relatively short time, at the latest when it was established that Sauls was not seriously injured. That such shock and trauma would lead to a very serious case of post-traumatic stress disorder, so it was argued, was not reasonably foreseeable.

The Court did not agree to the soundness of this argument. Although it later transpired that Sauls was only slightly injured, the manner in which he was knocked off his feet, flung into the air and spun around, was witnessed by the plaintiff. This must have been a traumatic experience to any observer and the Court held that the plaintiff was justified in thinking that Sauls had been mortally injured and was dying.

The Court then moved onto the question of legal causation, i.e. whether the harm or loss suffered is not too remote to be recognised in law. The test to be applied is a flexible one in which factors such as reasonable foreseeability, directness, the absence or presence of an intervening cause, legal policy, reasonableness, fairness and justice all play their part.

The Court held that the so-called flexible approach or test of legal causation did not require in the present case either a denial of or limitation to the plaintiff's claim, apart from question of proof of the quantum of damages. The Court found that the harm caused to the plaintiff was reasonably foreseeable and could easily have been avoided. The harm was caused directly to the plaintiff, she being in the BMW and witnessing the collision first hand. There is a clear attitude in South African law that claims in respect of negligently caused shock and emotional trauma resulting in a detectable psychiatric injury are actionable. In this regard, the Court referred to Clinton-Parker v Administrator, Transvaal; Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W); Majiet v Santam Ltd [1997] 4 B All SA 555 (C); Barnard v Santam Bpk (1999) 1 SA 202 (SCA).

It was argued by the Counsel for the appellant that the distinguishing factor in the present claim is the serious harm caused to the plaintiff compared with the negligible harm caused to the primary victim, Sauls. It was argued that if the present claim where the primary harm is negligible is allowed, the flood gates will be opened to a multitude of claims, where huge amounts will be sought for secondary harm, whether genuine or simulated. Counsel argued furthermore that if the present claim is allowed to a live-in lover or betrothed, what is there to negate similar claims by partners to a customary or common law or religious union, children, parents, grandchildren, favourite uncles and aunts, close friends.

The Court held that it could find no general "public policy" limitation to the claim of a plaintiff, other than a correct and careful application of the well-known requirements of delictual liability and of the onus of proof. It was held that that it is not justifiable to limit the claim under consideration to a defined relationship between the primary and secondary victims, such as parent and child, husband and wife. In determining limitations, a Court will have to take into consideration the relationship between the primary and secondary victims. The question is then one of legal policy, reasonableness, fairness and justice.

The Court referred in this regard to the matter of Alcock and Others v Chief Constable of South Yorkshire Police [1992] 1 AC 311 (HL), reported in [1991] 4 All ER 907 where it is stated that:

In summary therefore, the Court held that:-

1. There is no general public policy limitation to the claim of the plaintiff for damages for the negligent causation of emotional shock and resultant detectable psychiatric injury, other than a correct and careful application of the well-known requirements of delictual liability and the onus of proof.

2. It is not justifiable to limit such a claim to a defined relationship between the primary and secondary victims.

3. In determining limitations however, a Court will take into consideration the relationship between the primary and secondary victims and then the question is one of legal policy, reasonableness, fairness and justice.