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 south african 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 south african 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 order to determine whether Lincoln is liable in delict for the psychological harm caused to Sarah and Lethula, we need to establish if the elements of a delictual claim are present. A delict, in South African law, refers to a civil wrong that constitutes a breach of duty which causes harm to another person.
Under delictual liability, the harm suffered must be the result of the wrongful and negligent conduct of the defendant. There must also be a causal link between the defendant's conduct and the harm suffered by the plaintiffs.
In this case, the fire was a direct result of Lincoln leaving the paraffin lamp burning in his bedroom, in potentially hazardous conditions. Lincoln knew that there was a strong draft of wind and yet left the window open, increasing the risk of the lamp being blown over. This negligent conduct by Lincoln led to the fire that caused harm to Sarah and Lethula.
Case law supports the notion that individuals can be held liable for psychological harm caused by their negligent actions. In the case of Van Aswegen v Vance Dickson (Pty) Ltd, the court held that a defendant can be held liable for pure psychiatric harm caused by their negligence. Therefore, Lincoln can be held liable for the psychological harm suffered by Sarah and Lethula.
2. Richard can potentially sue Neo for defamation if the essential requirements for defamation are met. To succeed in a defamation claim, Richard must show that Neo made a false and defamatory statement about him, which was published to a third party, and that this publication caused harm to Richard's reputation.
In this case, Neo took a video of Richard running naked and sent it to his friends, resulting in almost everyone in Fauna seeing the video. The video is likely to be considered defamatory as it is embarrassing and harmful to Richard's reputation. The false aspect of the claim could be that the video portrays Richard running naked, but it does not necessarily imply any other false statements about him.
Neo's act of sending the video to others constitutes publication, as it was made available to a third party. As a result of this publication, Richard suffered harm to his reputation.
A possible defense that Neo can raise is that of truth or justification. If Neo can prove that the video accurately portrayed Richard running naked, then this would be a valid defense against a defamation claim. However, if Neo is unable to prove the truth of the video, he may not have a valid defense.
Case law, such as National Media Ltd & Others v Jooste, has recognized that the defendant may have a valid defense of justification if they can prove the truth of the defamatory statement.
3. IN THE _________ HIGH COURT OF SOUTH AFRICA
CASE NO: ________
BETWEEN:
ROB
PLAINTIFF
and
LINCOLN
DEFENDANT
PARTICULARS OF CLAIM
1. The Plaintiff, Rob, is the husband of the late Amanda, who passed away as a result of injuries sustained in a fire caused by the negligent conduct of the Defendant, Lincoln.
2. The Defendant is a resident of Fauna and on [date], left an old paraffin lamp burning in his bedroom with the bedroom window open, causing a fire that spread to the Plaintiff's house, resulting in Amanda's death.
3. The Defendant was aware that there was a scheduled load-shedding of electricity, which led to his use of the old paraffin lamp. However, the Defendant failed to take necessary precautions to prevent the lamp from causing a fire, such as ensuring it was in a secure position and away from potentially hazardous conditions.
4. As a result of the Defendant's negligence, the fire spread rapidly, destroying the Plaintiff's house and causing the death of Amanda.
5. The Plaintiff has suffered and continues to suffer severe emotional distress, loss of companionship, and loss of support due to the death of Amanda.
6. The Defendant owed a duty of care to the Plaintiff and Amanda to take reasonable steps to prevent harm, which included ensuring the safe use of the paraffin lamp in close proximity to residential buildings.
7. The Defendant's negligence is the direct cause of Amanda's death and the resulting loss suffered by the Plaintiff.
WHEREFORE, the Plaintiff claims:
a) Damages in an amount to be determined by the court, including compensation for emotional distress, loss of companionship, and loss of support;
b) Costs of suit on the attorney and client scale;
c) Further and/or alternative relief.
DATED at _________ this _____ day of __________ 20____.
__________________
Plaintiff's Attorney
1. In order to determine whether Lincoln is liable in delict for the psychological harm caused to Sarah and Lethula, we need to analyze the elements of the tort of negligence in South African law.
The elements of negligence are as follows:
a) Duty of care: The defendant must owe a duty of care to the plaintiff.
b) Breach of duty: The defendant must have breached that duty of care.
c) Causation: The defendant's breach of duty must have caused the harm suffered by the plaintiff.
d) Damage: The plaintiff must have suffered actual loss or damage.
In this case, Lincoln's actions of leaving the old paraffin lamp burning in his bedroom with the window open created a foreseeable risk of fire spreading to neighboring houses. The fire did indeed spread to Penny's house, causing extensive damage, and subsequently led to Amanda's death and Lethula's post-traumatic stress disorder. Additionally, Lincoln's actions indirectly caused Sarah's catastrophic neurosis which prevented her from working for 15 months.
Based on these facts, it can be argued that Lincoln owed a duty of care to his neighbors and had breached that duty by leaving the lamp unattended, which resulted in the fire and subsequent harm. The damage suffered by Sarah and Lethula can be directly linked to Lincoln's breach of duty.
In the case of Kruger v Coetzee, the court held that a defendant can be held liable for psychological harm caused by foreseeable consequences of negligence. In this case, the harm suffered by Sarah and Lethula due to the fire and subsequent events can be deemed as foreseeable consequences of Lincoln's negligent actions.
Therefore, it can be argued that Lincoln is liable in delict for the psychological harm caused to Sarah and Lethula.
2. To determine whether Richard's claim against Neo for defamation meets the essential requirements, we need to consider the elements of defamation under South African law.
The essential requirements for a claim of defamation are as follows:
a) Publication: The defamatory statement must have been communicated to a third party.
b) Falsity: The statement must be false.
c) Harm: The statement must have caused harm to the reputation of the plaintiff.
d) Fault: The defendant must have acted intentionally or negligently in making the defamatory statement.
In this case, Neo recorded Richard running naked and sent the video to his friends, causing the video to be widely circulated. The video clearly portrays Richard in a humiliating and embarrassing situation, which can harm his reputation.
The defamatory statement (the video) was published when Neo sent it to his friends, making it accessible to a wider audience.
There is no indication that the video is true or accurate, and it can be argued that it was false, as Richard's nudity was a result of the fire and his immediate escape from Penny's burning house.
Based on these facts, Richard's claim for defamation against Neo meets the essential requirements. Neo's actions in recording and circulating the video can be considered intentional or negligent, as he knew or should have known that the video would cause harm to Richard's reputation.
Possible defenses that Neo can raise include:
a) Truth: If Neo can prove that the video is true and accurately portrays the events that occurred, it may serve as a defense against Richard's claim of defamation.
b) Consent: If Richard had given his consent for the video to be recorded and circulated, it may serve as a defense against defamation.
3. Particulars of Claim against Lincoln for the loss of support caused by Amanda's death:
[Heading]
In the High Court of South Africa
[Local Division]
[Plaintiff's Name], Plaintiff
v.
[Lincoln's Name], Defendant
Case No: [Case Number]
Particulars of Claim:
1. The Plaintiff, [Rob's Name], is the husband of the late Amanda [Amanda's Surname], who tragically passed away as a direct result of the fire that engulfed the Defendant's property on [Date].
2. The Defendant, [Lincoln's Name], is a resident of Fauna and the owner of the property where the fire originated from due to his negligent actions as described in paragraph 1.
3. On [Date], the fire spread from the Defendant's property to the adjacent property owned by Penny [Penny's Surname], the Plaintiff's wife, causing extensive damage and leading to Amanda's death.
4. The fire was caused solely by the Defendant's negligence in leaving an old paraffin lamp burning in his bedroom with the window open, despite knowing of the risk of fire spreading to neighboring properties.
5. As a result of the Defendant's negligence, the Plaintiff has suffered the loss of the love, companionship, and support of his wife, Amanda.
6. The Plaintiff hereby claims damages from the Defendant for the loss of support caused by Amanda's untimely death.
7. The Plaintiff reserves the right to add further particulars as necessary and to amend this pleading accordingly.
[Relief sought]
The Plaintiff claims:
a) General damages for the loss of support caused by Amanda's death;
b) Costs of suit;
c) Further and/or alternative relief as the court may deem fit.
Dated this [Date].
[Plaintiff's Legal Representative]
[Law Firm Name]
[Address]
[Tel]
[Email]