The influence of reasonableness in determining delictual or tort liability for psychological or psychiatric harm in South African and English Law

Abstract

Due to a lack of authority in Roman-Dutch law in respect of claims for psychological harm, our courts in South Africa relied on English law for guidance, in particular the tort of negligence, where emphasis is placed on reasonable foreseeability of harm. The courts in both jurisdictions generally face challenges with who exactly is entitled to claim, the quantification of the damages that should be awarded and how to limit delictual or tort liability emanating from these types of claims. South African law also followed English law in making the distinction between primary and secondary victims and as will be shown in this contribution, limiting liability in respect of secondary victims is problematic. The courts generally tread with caution in awarding damages for pure psychological or psychiatric harm and several policy considerations are taken into account when deciding to award damages or not. Nevertheless, as will be shown in this contribution, the courts in South Africa and the United Kingdom acknowledge these claims and have been developing the law around the cases that have come before them. What is rather interesting and prevalent, though, with regard to primary and secondary victim claims for psychological or psychiatric harm in these jurisdictions, is the implicit and explicit influence of "reasonableness" in determining delictual or tort liability for these types of claims. This will be pointed out further in this contribution.