At 8pm on a Friday night, Lincoln, a Fauna resident, lights an old paraffin lamp as he has no electricity
due to scheduled load-shedding of electricity. Lincoln leaves the old paraffin lamp burning in his
bedroom with the bedroom window open and proceeds to spend the next half hour in the
neighbouring bedroom reading his son a bedtime story. A strong draft of wind blows the lamp over. As
a result of this a fire starts and spreads rapidly, engulfing his house and spreading to his neighbour’s
house. Penny [his neighbour] was holding a party when the flames engulfed her house. Penny’s house
is also destroyed in the fire. Richard [her husband] who was in the toilet at the time the fire broke out,
runs out of the house, undressed. Neo then takes a video of Richard running naked and sends it to his
friends. The following day Richard finds out almost everyone in Fauna has seen the video. Richard feels
utterly humiliated says that: "I honestly felt like just sitting in my house and not coming out. I want to
crawl into a hole." Amanda, a university lecturer who was also one of Penny’s guests succumbs to burn
wounds.
Sarah, Amanda’s daughter working in Durban, hears of the news about the fire and mother’s death
and is so shocked thatshe later suffers from catastrophic neurosis and is unable to work for 15 months.
Some 2 years earlier, Sarah had been a voluntary patient at a mental hospital, where she had been
treated for a neurotic condition. Lethula, Penny’s other guest, is shocked at what he sees happening
at Penny’s house and as a result suffers from extreme grief and later needs extensive psychiatric
counselling to overcome his post-traumatic stress disorder caused by what he witnessed.
1. Advise Lincoln whether he is liable in delict for the psychological harm caused to Sarah and
Lethula. Substantiate your answer with reference to case law.
2. Richard wants to sue Neo for defamation. Set out whether Richard’s claim meets the essential
requirements for defamation. Are there any possible defences that Neo can raise?
Substantiate your answer with reference to case law.
3. Following Amanda’s death, Rob [ Amanda’s husband and a stay-at-home dad] wants to sue
Lincoln for the loss of support caused by Amanda’s death. Draft the Particulars of Claim to
institute the action against the Lincoln. You may add your own fictional information needed
to draft the Particulars of Claim. You are only required to draft the Particulars of Claim and
not the complete summons.
1. In assessing Lincoln's liability in delict for the psychological harm caused to Sarah and Lethula, it is important to consider the elements of delict and whether they have been satisfied in this case.
Delict is a branch of law that deals with civil wrongs, and liability for delict arises when certain elements are present, including wrongful and culpable conduct, causation, damages, and a recognized legal duty owed by the defendant to the plaintiff.
In this scenario, Lincoln's actions in leaving the old paraffin lamp burning in his bedroom with the window open can be considered as wrongful conduct. Lincoln should have taken proper precautions to ensure the safety of his property and the lives of others, especially considering the risk of fire.
Regarding causation, Sarah's catastrophic neurosis can be linked to the shock and trauma she experienced upon hearing the news of her mother's death. It can be argued that the chain of events from the fire, Amanda's death, and Sarah's psychological harm are directly connected.
Similarly, Lethula's extreme grief and the need for psychiatric counseling can be traced back to witnessing the fire and its devastating consequences. Lincoln's failure to take adequate measures to prevent the spread of the fire can be seen as a causative factor in Lethula's psychological distress.
Therefore, based on the elements of delict and the circumstances described, it is likely that Lincoln could be held liable for the psychological harm caused to Sarah and Lethula.
Case law that can be referenced to support this argument includes the case of Van Eeden v Minister of Safety and Security (2002), where the court held that a defendant can be held liable for psychological harm caused to a plaintiff if it is a reasonably foreseeable consequence of the defendant's conduct.
2. Richard's claim against Neo for defamation requires that certain essential requirements are met. Defamation is the act of making false statements about a person that harm their reputation.
To establish a claim for defamation, Richard must prove that:
a) Neo made a defamatory statement about him,
b) The statement was published to a third party,
c) The statement referred to Richard, and
d) The publication of the statement has caused harm to Richard's reputation.
In this case, Neo took a video of Richard running naked and subsequently shared it with others. The video can be seen as a defamatory statement about Richard, as it exposes him to ridicule and embarrassment.
Furthermore, the video was published to a wide audience as Richard discovers that almost everyone in Fauna has seen it. This satisfies the requirement of publication to a third party.
As the video specifically depicts Richard running naked, it is clear that the statement refers to him directly.
Finally, the circulation of the video and the resulting humiliation suffered by Richard can be seen as harmful to his reputation.
In terms of defenses, Neo may argue truth as a defense, asserting that the video accurately depicted Richard's actions and therefore was not defamatory. However, this defense would likely fail if Richard did not consent to the video being taken or shared.
Additionally, Neo may attempt to claim consent or lawful public interest as defenses, but given the humiliating and non-consensual nature of the video, these defenses would likely be weak.
Case law that can be referenced to support Richard's claim includes the case of Herholdt v Nedbank Ltd (2013), where the court held that a defamatory statement that exposes an individual to ridicule and contempt can be sufficient to establish a claim for defamation.
3. Particulars of Claim to institute the action against Lincoln for the loss of support caused by Amanda's death can be drafted as follows:
In the High Court of [Jurisdiction]
Case No: [Case Number]
BETWEEN:
Rob [Surname],
Plaintiff,
and
Lincoln [Surname],
Defendant.
PARTICULARS OF CLAIM
1. The Plaintiff, Rob [Surname], is the husband and dependent of the deceased, Amanda [Surname], who tragically passed away as a result of a fire which originated from the Defendant's premises.
2. The Defendant, Lincoln [Surname], is a resident of Fauna who negligently left an old paraffin lamp burning in his bedroom with an open window, causing a fire that resulted in the complete destruction of his own property and the adjacent property of the deceased, Amanda [Surname].
3. As a result of the fire, Amanda [Surname] suffered fatal burn wounds and succumbed to her injuries, leaving behind the Plaintiff and their minor children.
4. The Plaintiff, as a stay-at-home dad, was dependent on the deceased, Amanda [Surname], for financial support, maintenance, and assistance in raising their children.
5. The Plaintiff claims a loss of support, including financial assistance, companionship, and guidance, as a direct result of Amanda's untimely death caused by the Defendant's negligent actions.
WHEREFORE, the Plaintiff claims against the Defendant the following relief:
a) Payment of damages in the amount to be determined by the court for the loss of support suffered by the Plaintiff due to the death of Amanda [Surname];
b) Costs of suit; and
c) Further and/or alternative relief as the circumstances may require.
DATED this [Date] day of [Month] [Year].
_____________________________
[Plaintiff's Legal Representative]
[Law Firm Name]
1. Lincoln's liability in delict for the psychological harm caused to Sarah and Lethula depends on whether the harm was reasonably foreseeable and whether Lincoln's actions were negligent. In this case, Lincoln's negligent act was leaving the old paraffin lamp burning in his bedroom with the window open, despite knowing the risk of fire. The fire started due to the lamp being blown over by a strong draft of wind.
Regarding Sarah, her pre-existing neurotic condition does not preclude her from claiming damages if her condition was worsened due to the fire and her mother's death. The South African case of Kruger v Coetzee (1966) established the principle that a defendant is liable for the aggravation of a pre-existing condition if there is a causal connection between the defendant's wrongful act and the aggravation. Therefore, Lincoln may be liable for the psychological harm caused to Sarah if her condition can be attributed to the fire and her mother's death.
As for Lethula, he suffered extreme grief and later required extensive psychiatric counseling to overcome post-traumatic stress disorder caused by witnessing the fire at Penny's house. If Lincoln's negligent act was the proximate cause of Lethula's suffering, it is reasonable to argue that Lincoln may be liable for the psychological harm suffered by Lethula. The case of Van Zyl v Venter (2003) established that compensation may be awarded for grief and emotional trauma if it is proven that such harm resulted from the defendant's negligent act.
2. Richard's claim against Neo for defamation would require meeting the essential requirements of defamation. These essential requirements are:
a) the statement was published (communicated to a third party),
b) the statement refers to the plaintiff, and
c) the statement is defamatory, meaning it harms the plaintiff's reputation in the eyes of reasonable people.
In this case, Neo took a video of Richard running naked after the fire and sent it to his friends, resulting in almost everyone in Fauna seeing the video. The video clearly refers to Richard and can be considered defamatory as it exposes him to ridicule and humiliation.
However, there are possible defenses that Neo can raise against Richard's claim. One potential defense is truth, where if Neo can prove that the video accurately depicted Richard running naked, it may be a valid defense against a defamation claim. Another potential defense is consent, where if Richard gave his consent for the video to be taken and shared, it may weaken his defamation claim. Additionally, Neo may argue that the video was published without malice, meaning there was no intent to harm Richard's reputation.
3. In the High Court of Fauna, Republic of South Africa.
Particulars of Claim:
1. The Plaintiff, Rob, is the husband of the deceased, Amanda, who tragically lost her life in a fire that was caused due to the Defendant's negligence.
2. The Defendant, Lincoln, a resident of Fauna, negligently left an old paraffin lamp burning in his bedroom while the window was open, despite being aware of scheduled load-shedding of electricity in the area.
3. As a result of the Defendant's negligent act, a fire started in his house and rapidly spread to the Plaintiff's wife's house, causing significant damage and resulting in the death of Amanda.
4. The Defendant had a duty of care towards his neighbors to prevent any foreseeable harm caused by his negligent actions. By failing to exercise reasonable care and precaution, the Defendant breached this duty of care.
5. The fire and Amanda's subsequent death have caused the Plaintiff to suffer a substantial loss of support, both financially and emotionally, as Amanda was the primary breadwinner and caretaker of their family.
6. The Plaintiff seeks compensation for the loss of support suffered due to Amanda's untimely death.
7. The Plaintiff further seeks general damages for the emotional pain, suffering, and bereavement caused by the Defendant's negligent act.
8. The Plaintiff also seeks costs of suit and any further relief that the Court deems just and appropriate.
Dated this [date] day of [month], [year].
[Plaintiff's signature]
[Plaintiff's name]
[Plaintiff's address]