Abstract

Keywords

Delict; English law; intentionally inflicted psychiatric harm; negligently inflicted psychiatric harm; primary victims; psychiatric harm; psychological harm; reasonableness; reasonable foreseeability; secondary victims; South African law, tort; tort of negligence

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1 Introduction

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,1 where the broad term "psychiatric illness" or harm is used more commonly but has not been clearly defined.2 The courts acknowledge, though, that the harm suffered must be some form of "medically recognised psychiatric illness" which may occur through shock, fear, fright, or other mental suffering.3 In South African law, the majority of delictual claims that have come before the courts relate to claims for psychological harm as a result of nervous or emotional shock.4 It has been stated that the term "nervous shock" may be a misleading or obsolete term and that the "relevant question is whether the plaintiff sustained a recognisable psychological lesion." 5

South African law also followed the approach in English law where a distinction is made between "primary" and "secondary" victims of psychological harm.6 The primary victim is one who is typically in some sort of physical danger and a secondary victim

is one who typically witnesses or hears of a disturbing event. 7 The distinction between primary and secondary victims in English law emerged from the decision in McLoughlin v O'Brian,8 where Lord Wilberforce held that because psychiatric harm was capable of affecting a large number of potential plaintiffs, there was a need "for the law to place some limitation on the extent of admissible claims". Due to this policy consideration, he referred to the following factors that would need to be considered with regard to what we now know as secondary victims. They are the class of claimants whose claims should be recognised, the proximity of such claimant to the incident and how the psychiatric harm was caused.9 These control mechanisms were then reformulated and endorsed in Alcock v Chief Constable of South Yorkshire Police (hereinafter referred to as "Alcock") which is discussed further below.10

In South African law a generalising approach to determining a delict is followed instead of the approach followed in English law, where there is the tort of negligence and numerous other separate torts which include the intentional torts.11 Even though our law has been influenced by English law, this is a major fundamental difference which should not be overlooked. What is interesting and common with claims for psychological or psychiatric harm in South African and English law is the implicit and explicit influence of "reasonableness" in determining delictual or tort liability for these types of claims. This will be the focus of this contribution.

To begin with in this contribution, the influence of reasonableness in determining tort liability for psychiatric harm in English law will

be pointed out briefly.12 This will be followed by a brief discussion of the influence of reasonableness on delictual claims for psychological harm in South African law. The conclusion to this contribution will then highlight the main differences and similarities found between English and South African law in respect of the role of reasonableness in determining delictual or tort liability where psychological, or psychiatric harm has been sustained.

2 English law: psychiatric harm

2.1 Intentionally inflicted psychiatric harm

In English law the traditional intentional torts of trespass, assault and battery (involving direct harm) did not cover intentionally inflicted, indirect physical or psychiatric harm but has been covered since the decision of Wilkinson v Downton,13 under the Wilkinson v Downton rule (also referred to as a residual tort).14 The decision of Wilkinson v Downton was the first decision in English law which recognised the tort of the intentional infliction of shock. According to this residual tort, there must be some form of a positive act comprising of either actions or words that is directed to the claimant.15 There must be an intention to cause severe emotional distress or mental harm subsequently resulting in recognisable psychiatric harm and there must be no ground of justification applicable.16 Harm must also be proven.17

In Wilkinson v Downton18 the defendant informed the claimant that her husband had been involved in an accident and was seriously injured. This was false. The defendant submitted that it was intended to be a practical joke, but the claimant suffered shock resulting in illness from the shock. She subsequently sued the defendant. The court stated that there is a good cause of action in such an instance where the defendant wilfully undertakes an act to cause physical harm (which includes psychiatric harm) to the claimant and the court allowed the claimant's claim for damages.19

The Wilkinson v Downton rule has been successfully applied inonly two cases, Janvier v Sweeney20 and Khorasandjian v Bush.21 In Janvier v Sweeney,22 the defendants (private detectives) threatened the claimant that she was in danger of being arrested for her association with a German spy (her fiancé). The claimant suffered psychiatric harm and was entitled to damages based on the Wilkinson v Downton rule. In Khorasandjian v Bush23 the claimant was being continuously harassed by her former boyfriend to the point that she suffered considerable stress. The court granted an injunction (interdict) against the former boyfriend and held that even though there was no evidence of psychiatric harm, there was a risk "that the cumulative effect of continued and unrestrained further harassment such as she had undergone would cause"24 psychiatric harm. The Protection from Harassment Act25 now covers conduct which amounts to harassment in terms of the act. The harassment may be considered a crime or tort and the claimant may be entitled to an injunction as well.26 The claimant

may claim damages inter alia for anxiety, but it falls "short of a recognised category of psychiatric harm such as post-traumatic stress disorder".27

In respect of this residual tort, stemming from Wilkinson v Downton, the reasonableness of the defendant's act of intentionally infringing the claimant's right to personal safety28 is called into question, thus it may be concluded that at the very least, the influence of reasonableness is implicit on the lawfulness and reasonableness of the defendant's act.

It should be noted that after the decision of Wilkinson v Downton, in 1901, English law recognised liability for psychiatric harm in the tort of negligence in the case of Dulieu v White & Sons.29

2.2 Negligently inflicted psychiatric harm

In English law a claimant who sustains negligently inflicted psychiatric harm is entitled to claim damages under the tort of negligence. In general, in order to succeed in a claim for negligence, the elements of duty (of care), breach (of that duty of care), causation and harm or damage must be present.30 Often, adjudicators do not clearly differentiate between the first three elements and there is an overlap between these elements due to the role of reasonable foreseeability which is relevant to the inquiry in all three elements.31

In White v Chief Constable of the South Yorkshire Police (hereinafter referred to as "White") Lord Steyn stated that:

[n]owadays courts accept that there is no rigid distinction between body and mind. Courts accept that a recognisable psychiatric illness results from an impact on the central nervous system. In this sense therefore there is no

qualitative difference between physical harm and psychiatric harm. And psychiatric harm may be far more debilitating than physical harm.32

Psychiatric illness is generally regarded as a type of personal injury33 but is assessed more restrictively due to policy considerations when compared with other forms of personal injury.34 Most of the cases that have come before the courts have involved physical events subsequently leading to post-traumatic stress disorder.35 Thus, even though conduct is not explicitly mentioned as a requirement in English law, some form of conduct, either in the form of an omission or a commission, is implicitly required.36

The concept of duty is used to "demarcate the range of people, relationships, and interests that receive the protection from the law."37 It is submitted that out of all the elements of liability in the tort of negligence, the element of duty receives the most attention in English law because it is the first element which controls who is a primary or secondary victim entitled to claim damages for the psychiatric harm sustained. The three elements of duty that must be determined are the foreseeability of harm; proximity; and whether it is fair, just and reasonable to impose a duty of care. This is often referred to as the three-fold test stemming from Caparo Industries plc v Dickman.38 Once it has been established that the defendant owed the plaintiff a duty of care, it must then be established if the defendant did indeed breach that duty.39 The standard of reasonableness is used and the defendant's conduct is judged against the standard of the hypothetical reasonable person.40 Thus, if the psychiatric harm towards the claimant was reasonably foreseeable, the risk of psychiatric harm materialising was significant, and the reasonable person in the circumstances would have taken steps to prevent the risk of psychiatric harm materialising – then the defendant breached the duty of care owed to the claimant.41

In establishing whether the breach of duty caused the psychiatric harm, factual causation as well as legal causation is considered. In determining factual causation the "but for" test is usually applied.42 The question is whether the psychiatric harm would have occurred but for the defendant's conduct.43 An alternative cause, a supervening cause or a novus actus interveniens would break the causal link between fault and damage, and the defendant would not be held liable.44 With regard to legal causation, the question is whether the damage or harm "fell within the scope of the risk that it was the defendant's duty to safeguard the claimant against." 45 Thus the defendant cannot be held liable for damage that was too remote from his or her original breach of duty.46 In establishing legal causation, generally, the foreseeability of the psychiatric harm is required but not the manner in which it occurred.47

In order to obtain compensation the claimant must prove that he or she sustained some form of medically recognisable psychiatric illness as mere grief, distress, fear or other emotion is not sufficient.48 In English law, grief and sorrow sustained as a result of a person's death is not compensable but a claim for bereavement is allowed by a spouse or parents and the amount claimable is capped by legislation.49 Successful claims have been made for post-traumatic stress disorder,50 chronic fatigue syndrome,51 hysterical personality disorder,52 pathological grief disorder,53 and morbid

depression.54 It is also settled in English law that the psychiatric illness need not be accompanied by physical injury.55

English law makes a distinction between primary victims, who were in some way directly involved in the accident,56 and secondary victims,57 who were not directly (physically) involved in the accident but sustained psychiatric harm as a result of witnessing injury to another, hearing of an injury to another, or witnessing the "immediate aftermath" of an accident.58 The award of compensation, particularly with secondary victims, depends on policy considerations.59 In respect of primary victims, the requirement of the reasonable foreseeability of physical injury or endangerment is considered sufficient as a control mechanism whereas with regard to secondary victims additional control mechanisms are imposed by the courts in order to limit claims.60

There have been instances where claims for psychiatric illness not related to personal injury succeeded, illustrating that the courts have adopted a flexible approach in developing the law relating to psychiatric harm in general. For example, in Attia v British Gas Plc61 the claimant succeeded in a claim for psychiatric harm where she witnessed her property being destroyed by fire.62 In 1998 the Law Commission reviewed liability for psychiatric harm63 and acknowledged that this area of the law is controversial in both the medical and legal fields. It has, however, not developed enough for complete codification.64

The report recommended minimal reform to the common law and provided a draft bill, mainly aimed at remedying the law relating to secondary victims who suffer psychiatric injury stemming from the injury or death of a loved

one. Thus far no legislation has been promulgated and the courts are at liberty to continue developing the law relating to psychiatric harm.65

2.2.1 Primary victims

Liability for psychiatric harm (negligently caused) in respect of primary victims was recognised as early as 1901, in Dulieu v White & Sons.66 In this case the claimant was allowed damages for the nervous shock she sustained. Kennedy J stated67 that the shock "must be a shock which arises from a reasonable fear of personal injury to oneself."68 In Hambrook v Stokes Bros69 Lord Atkin dismissed Kennedy' J's restriction to a claim for shock when one fears injury to oneself only (primary victim). He stated70 "it would result in a state of the law in which a mother, shocked by fright for herself, would recover, while a mother shocked by her child being killed before her eyes, could not." In effect, the court recognised the claim for shock of a secondary victim.

The status of primary victims is regulated by the decision of Page v Smith71 (hereinafter referred to as "Page").72 In this case, the claimant, a victim of a motor vehicle accident,73 did not sustain any physical injury but was frightened by the experience and suffered nervous shock. Approximately three hours after the accident, he suffered from severe chronic fatigue syndrome due to the nervous shock. The plaintiff had been suffering from this condition74 of a mild nature on and off for over twenty years prior to the accident. He alleged that as a result of the accident, his pre-existing condition "had become chronic and permanent and that it was unlikely that he would be able to take full-time employment again."75 Of importance, the House of Lords in this case extended liability for the psychiatric injury of primary victims to include victims with inherent susceptibilities ("thin-skull" rule)76 and held that in respect of primary victims the exact type of psychiatric injury need not be reasonably foreseeable, whereas for

secondary victims it is necessary.77 Regarding primary victims it is sufficient if physical injury is reasonably foreseeable although such physical injury need not actually occur.78 A claim for psychiatric injury by a primary victim depends on what was reasonably foreseeable by the defendant ex ante (before the event) but a claim for psychiatric injury by a secondary victim depends on what was reasonably foreseeable by the defendant ex post facto (taking into account the surrounding circumstances and what actually transpired with hindsight) in respect of a claim for psychiatric injury by a secondary victim. The question is whether the reasonable person would have foreseen that the secondary victim might suffer psychiatric injury taking into account what transpired in the circumstances.79 The reasoning in Page has been found difficult to understand. In particular, the differential requirement for primary and secondary victims with regard to reasonable foreseeability has been criticised.80

There are several examples in case law where the limits have been tested as to who qualifies as a primary victim and the categories of primary victim claims continue to expand.81 Of significance, the primary victim must sustain psychiatric illness from a reasonable fear of harm or belief of harm to himself or herself. The claimant need not actually be in danger due to the defendant's negligence.82 If physical injury to the claimant is reasonably foreseeable, he or she is entitled to recover compensation for physical and or recognised psychiatric injury.83

A discussion of a few cases will suffice in order to illustrate the explicit influence of reasonableness with regard to the criterion of reasonable foreseeability of harm in recognising a duty of care to primary victims. The cases discussed below include the categories of rescuers, employees and close family members.

In White 84 the claimants (police officers) who rescued the victims at a football stadium were not regarded as primary victims because they were not within the reasonably foreseeable range of harm.85 Furthermore, they did not qualify as secondary victims as the close tie of love and affection (closeness or proximity of the relationship) was missing. 86 The court submitted that it was part of a policeman's job to assist citizens and during their employment they would come across such dangerous incidents.87 They were therefore denied claims for psychiatric harm.88 In Cullin v London Fire & Civil Defence Authority 89 the claimants (firefighters) succeeded in their claims for psychiatric harm after attending to fires where their colleagues were killed. It has been argued that the approach of the courts in respect of claims of rescuers (where firefighters and policemen may fall in this category) is arbitrary as the treatment applied to them, is inconsistent. It seems that the main concern is to limit liability in particular cases.90

In Farrell v Avon HA 91 the father of a new-born baby was incorrectly told by the hospital staff that his new-born son had died and was given a corpse to hold. His son was in fact alive. The father alleged that he sustained shock and subsequently developed post-traumatic stress disorder. The father asserted that "since grief at the death of a child was a reasonably foreseeable occurrence, he was entitled to recover damages for a reasonably unforeseeable but recognised psychiatric disorder if this subsequently developed." 92 It was held that the father was a primary victim and "the relevant test was whether [the defendant] ought reasonably to have foreseen that its conduct would expose [the father] to the risk of a recognised psychiatric disorder".93 The father had proven that his post-traumatic stress disorder even though it manifested at a later stage, had been caused by the incident at the hospital.94

A crane driver in Dooley v Crammell Laird 95 succeeded in claiming compensation for psychiatric harm after witnessing a defective sling on the crane snapping and causing the crane to drop its load onto the hold of the ship where he and his colleagues were working. Even though no one was injured, the claimant suffered psychiatric harm as a result of thinking he was about to cause injury or death to another.

In Walker v Northumberland County Council 96 a social services officer suffered a nervous breakdown from stress (psychiatric harm not induced by shock) because of being overburdened with work.97 He took three months leave and before his return to work was assured by his employer that assistance would be provided to ease his workload. According to the facts he was provided with limited assistance and subsequently suffered a second breakdown, whereafter he left work. Coleman Jstated:

It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employer as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care or from the co-extensive implied term in the contract of employment. That said, there can be no doubt that the circumstances in which claims based on such damage are likely to arise will often give rise to extremely difficult evidential problems of foreseeability and causation.98

Coleman J found the employer liable in that the employer owed a duty to take reasonable steps to avoid exposing the employee to a workload which endangered his health. The duty was not breached at the first nervous breakdown which was unforeseeable but at the second breakdown.99

In Rothwell v Chemical and Insulating Co Ltd 100 a primary victim had been exposed to asbestos dust for about eight years and over time developed plural plaques. His physical health was not affected but he developed anxiety neurosis from the fear that he might in future contract a disease stemming from the pleural plaques present in his body. The claimant was informed by his doctor about thirty years after the exposure that there was

a risk of developing an asbestos-related disease in future. The court found that the risk of the disease materialising or the psychiatric illness caused in expecting the disease to materialise was not actionable based on the notion that a person of reasonable fortitude would not react in the way the claimant did. Academic writers101 highlight the reference to the person of reasonable fortitude in this case, which is a departure from the extension of liability offered to the primary victim with the "thin skull" in Page.102 It may be argued that in this case, the chain of causation was stretched rather far as compared to that in Page. Perhaps the court would have reached a different conclusion if the pleural plaques had indeed affected the primary victim's physical health.

2.2.2 Secondary victims

In White103 Lord Steyn acknowledged that policy considerations have influenced the law relating to compensation for pure psychiatric injury and secondary victims.104 He referred to the following four factors: deciding what falls within the ambit of recognisable psychiatric injury is complex and the "classification of emotional injury is often controversial" requiring expert medical evidence which is time-consuming and costly; the opening of the floodgates to potential numerous claims; the risk of "litigation is sometimes an unconscious disincentive to rehabilitation"; and the imposition of liability for pure psychiatric injury "may result in a burden of liability on defendants which may be disproportionate to tortious conduct involving perhaps momentary lapses of concentration, e.g. in a motor car accident." 105

A secondary victim, besides meeting the requirements for liability in the tort of negligence, will have to meet further requirements in order to succeed in a claim for pure psychiatric injury:106 These further requirements are that the claimant must fall within the class of persons whose claim should be recognised;107 proximity must be present − "not only proximity to the event in time and space, but also proximity of relationship between the primary and secondary victim;" 108 the psychiatric injury must be induced by shock;109 there must be a reasonable foreseeability of psychiatric injury to

the claimant of normal fortitude by the defendant and the thin-skull rule is not applicable.110

In respect of the proximity requirement of the relationship − there must be a close relationship of love and affection between the secondary victim and the endangered person. Therefore, a bystander with no close relationship of love and affection with the victim would not have a claim for psychiatric harm.111 The type of relationships is not limited for example to familial relationships. It is presumed that there is a close relationship of love and affection between spouses, children and parents, but this may be rebutted with evidence to the contrary. Such presumption does not apply to other relationships, including siblings.112

Regarding sufficient proximity in time and space between the event and the resulting psychiatric injury, the limits of this requirement can be gleaned from referring to two cases on opposing ends. For example, in Taylor v A Novo (UK) Ltd 113 a daughter claimed compensation for psychiatric harm sustained after witnessing her mother collapse and die. The mother had been injured a few weeks prior to her death and the court held that the relevant event causing the harm was the accident and not the death of the mother. The daughter had not witnessed the incident which led to her mother's injury, nor the immediate aftermath. The court found that the

requirement of proximity had not been satisfied. In McLoughlin v O'Brian 114 the plaintiff heard about the accident in which her husband and children were injured. Upon arrival at the hospital, approximately two hours after the accident, the plaintiff was informed that her youngest daughter had been killed and saw the extent of the injuries to her children and husband. The proximity requirement in this case was satisfied as the plaintiff's hearing of and seeing her injured children and that of her husband upon her arrival at the hospital qualified as the "immediate aftermath" of the accident.115 The House of Lords116 held that the nervous shock suffered by the plaintiff "had been the reasonably foreseeable result of the injuries to her family caused by the defendants' negligence; that policy considerations should not inhibit a decision in her favour; and that, accordingly, she was entitled to recover damages."

The secondary victim claims in both Alcock117 and White118 arose out of the Hillsborough Football Stadium disaster which occurred in Sheffield in 1989. Many people were either physically or psychologically affected. A football match was scheduled to take place that day between the Liverpool and Nottingham Forest Football clubs. The South Yorkshire Police was in charge of controlling the spectators at the match. An excessively large number of spectators was allowed to enter the grounds at a certain section, causing overcrowding and cramming which subsequently resulted in people being crushed. Just under one hundred people were killed and hundreds of people were physically injured. The Chief Constable of South Yorkshire admitted liability for the deaths and physical injuries. Claims for nervous shock resulting in psychiatric harm were instituted against the Chief Constable.119 In White120 the claims were instituted by affected police officers who were not in any physical danger but assisted victims at the stadium, while in Alcock121 claims were instituted by family members, and in one instance a fiancé of a spectator who was killed or injured.122 The claim by the fiancé was allowed, the claim by a grandmother who brought up the child was not disbarred, while claims by brothers, brothers-in-law and sisters were denied.123 In Alcock the limits were tested against a variety of

claims, where some stemmed from plaintiffs who witnessed the disaster from neighbouring stands, some relatives witnessed the events on the television, and some heard of the disaster on the radio. One of the plaintiffs saw the events of the disaster on the television and then rushed to the stadium to find out whether his son was injured only to find out that his son had indeed been injured and killed.124 The claims in both Alcock125 and White126 except those claims relating to the police officers who were involved in the immediate vicinity where the deaths and injuries occurred, failed for fear of the floodgates opening to potential numerous claims. The reasoning of the court has been criticised by Deakin and Adams.127 They state that the House of Lords could have dealt with the claims differently by requesting proof of the seriousness of the medical conditions; considering that the relaying of the news could be considered a novus actus interveniens; finding that the damage that occurred had been too remote; or that the medium of communication via the television applied in "removing the claimant from the category of 'proximate' persons".128

2.3 Summary

The influence of reasonableness in determining a duty of care for psychiatric harm in the tort of negligence is predominantly explicit. It is evident that psychiatric harm or at least general harm must be reasonably foreseeable.129 Policy considerations play a vital role in limiting secondary victim claims for psychiatric harm. The question is whether it is fair, just and reasonable to impose a duty of care on secondary victims of psychiatric harm based on policy considerations (the third element of the three-fold test).130 Naturally, there may be numerous claims emanating from people who watch or hear of an accident or disturbing incident. It would be unreasonable for the defendant to be held liable for all such claims; indeed, in some cases, liability may be indeterminate. Where that is the case, it would be unreasonable to impose a duty of care.

Turning to the standard of the reasonable person, it is applied ex post facto where specific reasonable foreseeability of psychiatric injury is required in respect of secondary victims and ex ante in respect of primary victims based

on the harm which would have been foreseen by the reasonable person.131 A primary victim must sustain psychiatric harm from a reasonable fear or belief of physical harm. The fact that a primary victim with inherent susceptibilities is entitled to claim compensation while a secondary victim with inherent susceptibilities is not may seem unreasonable and arbitrary. Also the fact that the standard of the reasonable person is applied ex post facto to secondary victims while ex ante in respect of primary victims may also seem unreasonable, in that the same standard should be applied to all victims. The judgment in Page132 has endured severe criticism by academic writers and by Lord Goff in White133 mainly due to the following factors: the departure from the requirement of the reasonable foreseeability of psychiatric harm in a person of ordinary fortitude (a person with reasonable emotional and mental fortitude) on the part of a primary victim; the lenient requirement of the reasonable foreseeability of physical or psychiatric harm applied to the primary victim while the stricter requirement of reasonable foreseeability of psychiatric harm applied to secondary victims;134 whether the distinction drawn between primary and secondary victims is necessary and useful; the misunderstanding of the thin-skull rule which extends liability to primary victims with inherent infirmities; the ex ante approach applied to the primary victim whereas the ex post facto approach applied to the secondary victim; and having the effect of limiting the definition of the primary victim to one who was in physical danger.135

Lunney, Nolan and Oliphant136 in the context of the tort of negligence, recommend that claims for psychiatric harm should be treated in the same manner as physical injury. They argue that the reasonable foreseeability of psychiatric injury is sufficient and submit that the special proximity requirements should be eliminated. Deakin and Adams137 refer to the possibility of using the break in the causal link to limit liability and Lord Steyn in White stated:

[t]he law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury. … argued by Professor Stapleton. But that would be contrary to precedent and, in any event, highly controversial. Only Parliament could take

such a step. The second solution is to abolish all the special limiting rules applicable to psychiatric harm. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. They would allow claims for pure psychiatric damage by mere bystanders: see (1997) 113 L.Q.R. 410, 415. Precedent rules out this course and, in any event, there are cogent policy considerations against such a bold innovation. In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as … Alcock … and Page … as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.138

The Law Commission recommended another option, to keep the requirement relating to secondary victims in respect of the close tie of love and affection and to eliminate the rest of the requirements.139 This does indeed seem like a reasonable option which would result in a fair outcome for secondary victims claims as the closer the relationship between the primary and secondary victim, the more reasonably foreseeable the harm would be. No legislation has yet been promulgated and in 2007 the government rejected the Law Commissions reform proposal140 giving the courts the flexibility to develop the law.141

Despite all the criticism and differential rules that apply to the primary and secondary victims, the influence of reasonableness is explicit in determining a duty of care with regard to psychiatric injury. The standard of the reasonable person is applied, and the reasonable foreseeability of harm is applicable to three elements of the tort of negligence (duty, breach and causation), all of which assist in limiting liability.

3 South African law: psychological harm

In South African Law, since the decision of Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 142 the brain and the nervous system are regarded as part of a person's body. In turn, therefore, an injury to the brain is regarded as a physical injury and may be compensable.143 The

courts, however, usually treat these claims with caution for various reasons, including inter alia that it is not easy to quantify; it may include a range of temporary emotions such as fear, sorrow, sadness, or grief; and it may lead to the opening of the floodgates to delictual liability.144

As a result of following English law, the South African courts initially required that the claimant must have been in personal physical danger145 and that the physical injury must have caused the resulting psychological harm. Liability in cases of secondary emotional shock was therefore not possible.146 The court in Bester v Commercial Union Versekeringsmaatskappy van SA Bpk147 however, dispensed with the above requirements and following the approach applied in English law placed emphasis on the criterion of reasonable "foreseeability of harm" in order to ground liability for psychological harm.148

In order to succeed in a delictual claim where psychological harm was sustained, the harm sustained must not be temporary or minor.149 Trivial or temporary psychological harm, such as acute depression,150 post-traumatic stress disorder,151 anxiety neurosis,152 impaired sleep,153 mixed anxiety depressive disorder154 or emotional trauma155 is not compensable.156 The South African courts have also not yet awarded damages for mere fear,

sorrow, bereavement, sadness or grief.157 Neethling and Potgieter158 put it this way – the injury must be "reasonably serious".159 For example, the courts have awarded compensation where the harm resulted in "major depressive disorder;" "serious shock", personality changes, and so forth.160 Furthermore, generally, evidence should be produced to prove the psychological harm.161

In South African law, for a successful claim for psychological harm all the required elements of a delict must be proven; that is, conduct, wrongfulness, fault, causation and harm.162 However, as a result of the influence of English law163 the courts have placed emphasis on the criterion of "reasonable foreseeability of harm" in order to determine liability for psychological harm,

which is generally contentious as reasonable foreseeability may be relevant in determining fault in the form of negligence and legal causation.164 In Barnard v Santam Bpk,165 the court stated that it was irrelevant whether "reasonable foreseeability" of harm was determined in the ambit of negligence or legal causation.166 This approach that is applied in the English tort of negligence where adjudicators often do not clearly differentiate between the elements of liability and there is an overlap between these elements due to the role of reasonable foreseeability should not be followed.167 It is submitted that our law is fundamentally different and the role of reasonable foreseeability of harm must be applied correctly within the parameters of the particular delictual elements in the interests of legal certainty.

The conduct which leads to the psychological harm could be in the form of an omission168 or a commission. If one takes a typical road accident as an example - the conduct of the wrongdoer could lead to the injury or death of the primary victim resulting in psychological harm to the secondary victim upon hearing of the accident or seeing the effects of the accident.169

According to the traditional approach to determining wrongfulness, wrongfulness usually lies in the infringement of a right or the breach of a legal duty.170 In cases of psychological injury the person's physical-mental integrity (a constitutionally recognised right)171 is usually infringed.172 Thus, the defendant's infringement of the plaintiff's physical-mental integrity is found to be unreasonable where no ground of justification is applicable, grounding wrongfulness.173 As Neethling and Potgieter174 point out – due to the courts equating physical and psychological harm, any conduct leading to such harm will in principle infringe the "personality right to physical integrity," which is wrongful.175 The courts have recently held that wrongfulness depends on whether it is reasonable to hold the wrongdoer

liable for the harm, in this instance the psychological harm, assuming that all the other elements are present.176

Psychological harm may be caused intentionally177 or negligently, leading to delictual liability.178 However, fault may not be required in certain instances, for example, if the psychological or psychiatric injury was caused by the conduct of a domestic animal and the actio de pauperie is applicable.179

The standard of the reasonable person is applied in determining negligence and the criteria of reasonable foreseeability and preventability of harm is used.180 The question is whether the reasonable person would have foreseen the reasonable possibility that the conduct in question might cause the relevant psychological harm suffered by the plaintiff and, if so, would have taken reasonable steps to prevent it from occurring.181 In respect of the reasonable foreseeability of harm, the general nature of the harm and the general manner of its occurrence must be foreseen in respect of a specific plaintiff,182 (a concrete approach and not an abstract approach).183 If it can be concluded on a balance of probabilities that the reasonable person in the position of the defendant should have foreseen the reasonable possibility of psychological injury to the specific plaintiff and would have taken reasonable steps to avoid the harm, then negligence is present.184 "Reasonable foreseeability of harm" in respect of a secondary victim could sometimes be more challenging to prove.185 Botha JA in Bester v Commercial Union Versekeringsmaatskappy van SA Bpk186 stated that in

instances where the victim is in personal danger, it is easier to conclude that the possibility of harm should have been reasonably foreseeable as compared to instances where the plaintiff saw the harm being inflicted or heard of it. Ultimately, the court must consider the facts and the surrounding circumstances in order to determine whether the psychological harm was reasonably foreseeable and whether the defendant could have reasonably taken steps to prevent the harm.187

When one intentionally causes shock to another, the court has stated that the defendant "must foresee the natural consequences of his intentional act."188 Thus consciousness of unreasonableness of the conduct is required.189

In respect of factual causation, the defendant must have factually caused the psychological harm.190 There is no numerus clausus of causes of psychological harm. The harm may be caused by fear of one's safety191 or that of another.192 The courts encounter problems with finding legal causation.193 The flexible criterion194 is applied in determining legal causation and Olivier JA in Road Accident Fund v Sauls195 stated that factors such as "reasonable foreseeability, directness, the absence or presence of a novus actus interveniens, legal policy, reasonableness, fairness and justice all play a part." What must be established is whether there is a close enough relationship between the defendant's conduct and the psychological harm sustained in order for the defendant to be held liable for the psychological harm in view of policy considerations based on reasonableness, fairness and justice.196 Therefore, if the psychological harm is too remote, for example, if a secondary victim did not have a close relationship with the primary victim and saw an incident over the television,

his or her psychological harm may be regarded as too remote and the defendant may not be held delictually liable for the secondary victim's psychological harm.

In South African law, there is no numerus clausus with regard to which type of relationships are recognised by the courts.197 In Road Accident Fund v Sauls, the court stated that the "question is one of legal policy, reasonableness, fairness and justice (legal causation), that is, was the relationship between the primary and secondary victims such that the claim should be allowed, taking all the facts into consideration".198 The number of secondary victims who could for example hear and see the aftermath of an accident could be limitless. The policy considerations in respect of indeterminate liability and the floodgates argument have indeed been considered by our courts.199 The flexible approach to establishing legal causation could however be easily applied to limit liability with respect to the psychological harm sustained by secondary victims.200

The thin-skull rule or principle of taking the victim as one finds him or her applies and if the psychological harm was reasonably foreseeable, then the wrongdoer would be liable for the loss despite the loss being aggravated by a pre-existing condition.201

3.1 Summary

The influence of reasonableness on claims for psychological harm is prevalent and predominantly explicit, particularly with the requirement of the reasonable foreseeability of harm. As mentioned above,202 the criterion of the reasonable foreseeability of harm, although contentious, may be applicable under the elements of negligence and legal causation. In establishing wrongfulness, the defendant's infringement of the plaintiff's right to physical integrity must be unreasonable and it must be reasonable to hold the defendant liable. In determining negligence, the standard of the "reasonable person" is applied and the criteria of reasonable foreseeability and preventability are applicable. The reasonable foreseeability of harm as a criterion is used to limit the liability for claims in terms of legal causation.

What must be established is whether there is a close enough relationship between the defendant's conduct and the psychological harm in order for the defendant to be held liable in view of policy considerations based on reasonableness, fairness and justice. In respect of intention, the defendant must be conscious of the unreasonableness of the conduct and foresee the consequences of his or her intentional act. The psychological harm sustained must be "reasonably serious" and not minor or trivial. Furthermore, if the harm was reasonably foreseeable, the defendant may be held liable for all the harm or loss sustained by the claimant despite the claimant's pre-existing condition as per the "thin skull rule".

4 Conclusion

In English and South African law there is no precise definition of psychiatric or psychological harm but some form of medically recognised psychiatric or psychological harm is required, which is that the harm must be reasonably serious; that is, it must not be trivial or minor. In English law the primary victim must sustain psychiatric harm from a reasonable fear of harm to himself or herself. With regard to secondary victims, the psychiatric harm must be induced by some form of shock. The influence of reasonableness on harm is implicit in the sense that it is unreasonable to hold the defendant liable if the harm was not medically recognised or minor.203

Some form of conduct on the part of the defendant is required in both jurisdictions whether the harm was inflicted intentionally or negligently. Thus, it would be unreasonable to hold the defendant liable without any form of conduct.204

Wrongfulness is generally required in the South African law. According to the traditional approach to determining wrongfulness, the infringement of the claimant's physical-mental integrity must be unreasonable. A person's physical-mental integrity is not only protected under the law of delict but is also a constitutionally protected right.205 Thus, in terms of delictual liability, the defendant's infringement of the plaintiff's physical-mental integrity is found to be unreasonable where no ground of justification is applicable, grounding wrongfulness. In terms of constitutional imperatives, protected rights may be limited if the limitation is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom."206 All factors must be taken into account in determining whether the limitation

is lawful, which includes inter alia the nature of the protected right, the purpose of the limitation as well the nature and extent of the limitation.207 The right to corpus or body is considered as one of the most valuable legally protected interests and in this light infringements of the physical-mental body are in principle wrongful, but exceptions do apply, for example in cases of omissions where the factual infringement is not wrongful per se.208 As Neethling and Potgieter point out, due to the courts equating physical and psychological harm, any conduct leading to such harm will in principle infringe on the "personality right to physical integrity" which is wrongful. According to the recent approach to determining wrongfulness, the question is whether it would be reasonable to hold the wrongdoer liable for the psychological harm.209 The influence of reasonableness at least on the recent approach is explicit. There is no element of wrongfulness in English law but with the residual tort stemming from the rule in Wilkinson v Downton, the defendant's wilful positive act of infringing the claimant's right to personal safety, leading to the psychiatric harm, must be unreasonable. The influence of reasonableness is thus implicit.210 With regard to the tort of negligence in English law, wrongfulness from a South African perspective is in a sense established under the element of duty. The influence of reasonableness is explicit with two of the elements, that is, the reasonable foreseeability of harm to the plaintiff and whether it is fair just and reasonable to impose a duty of care. English law uses this latter element to limit the liability of claimants. In respect of proximity, the influence of reasonableness is implicit in that there must be reasonable proximity in time and space between the event and the resulting psychiatric harm and reasonable proximity of the relationship between the primary and secondary victim.211

Policy considerations play a part in both jurisdictions in limiting liability for psychiatric harm. In English law, in White212 Lord Steyn213 summarised the main policy considerations for limiting liability with regard to negligently caused psychiatric harm and why it is in a sense treated differently from claims for physical harm.214 It is understandable how due to these policy considerations the courts applied additional requirements or control mechanisms on secondary victims, in particular the proximity requirements.

South African law, followed a similar approach and reasoning in not treating claims for psychological harm on an equal footing with physical harm and treading with caution with regard to secondary victims’ claims.215 In the South African law of delict the rules of proximity as applied in English law to determine a duty of care are not applicable but legal causation as mentioned would sufficiently address claims of secondary victims where policy considerations based on reasonableness, fairness and justice would apply. If the psychiatric harm is considered too remote, in the instance of a secondary victim seeing the incident on television and where such victim did not have a close relationship with the primary a victim, then it would be considered too remote. Therefore, it is unfair, unjust and unreasonable for the defendant to be held liable for the psychiatric injury sustained by the secondary victim.216

In both jurisdictions, generally217 the psychological or psychiatric harm may be inflicted either negligently or intentionally. With regard to intention, the influence of reasonableness is implicit in that the defendant must be conscious of the unreasonableness of his or her conduct in causing the harm.218 In respect of negligence as a form of fault, the influence of reasonableness in both jurisdictions is explicit. The question is whether the reasonable person would have foreseen the possibility of the psychological or psychiatric harm and would have taken reasonable steps to prevent it. In South African law, the standard of the reasonable person is used ex ante, while in English law it is used ex post facto for secondary victims and ex ante for primary victims. 219

Both jurisdictions generally use the but-for test to determine factual causation. The influence of reasonableness is implicit in that it would be unreasonable to hold the defendant liable if his or her conduct was not the factual cause of the psychiatric or psychological harm. In South African law the influence of reasonableness is explicit on the flexible test for determining legal causation where the question is whether there is a close enough relationship between the defendant's conduct and the psychological harm in view of policy considerations based on reasonableness, fairness and justice. The reasonable foreseeability of harm test plays a subsidiary role in determining legal causation and the influence of reasonableness on this test is explicit. Both jurisdictions acknowledge that an alternative cause and a

novus actus interveniens could break the causal link. In English law the defendant cannot be held liable for damage that was too remote from the original breach of duty and generally foreseeability of harm is required but not in the way it occurred.220

The influence of reasonableness on the thin skull-rule is explicit in both jurisdictions. Thus, if the psychological or psychiatric harm was reasonably foreseeable, then the wrongdoer would be held liable for all the loss despite it is being aggravated by pre-existing conditions. In English law, liability for psychiatric harm was extended to primary victims with inherent susceptibilities as per the thin-skull rule, but not to secondary victims. The exact type of psychiatric harm need not be reasonably foreseeable for primary victims, but it must be for secondary victims.221

The influence of reasonableness is prevalent in both the jurisdictions discussed, whether it be implicit or explicit. A successful claim for psychological or psychiatric harm depends on whether there was an unreasonable infringement of the interests in bodily integrity, where there was unreasonable conduct in causing such harm and whether it is reasonable to hold the defendant liable for the harm caused. In both jurisdictions policy considerations generally play a prevalent role in limiting liability.

On a last note, there is no denying that South African and English law face the same problem which is controlling or limiting liability for claims stemming from psychological or psychiatric injury. The distinction between primary and secondary victims seems to have been a necessary and practical distinction. Hence the application of the rules relating to proximity in English law and remoteness in South African law. If there is any lesson to be learned for South African law it is not to make reasonable foreseeability of psychological harm the central and unifying feature in this area of law.222 We could find ourselves further conflating the elements of delictual liability, unfairly applying different standards to primary and secondary victims, and in effect bringing legal uncertainty into our law. This is indeed what has happened in the English tort of negligence, where adjudicators often conflate the elements of liability due to the role of reasonable foreseeability and admittedly apply different standards to primary and secondary victims, thus causing confusion. Where the criterion of the reasonable foreseeability of harm is considered under the elements of legal causation and negligence

in our law, it should be considered by applying the tests for the elements correctly.223

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List of Abbreviations