SKULDLOSE AANSPREEKLIKHEID VIR PSIGIATRIESE BESERING EN GEDAGTES OOR DIE ROL VAN BELEID BY DELIKTUELE AANSPREEKLIKHEID

Abstract

More than thirty years ago Prof Hans (PJ) Visser, in one of his earliest publications, mooted the possibility of liability in delict for the causing of emotional shock (psychiatric injury) where no fault on the part of the defendant was involved. This possibility became a reality in Fourie v Naranjo 2008 1 SA 192 (C), where a plaintiff succeeded with the actio de pauperie (for which fault is not a requirement) for damages resulting from emotional shock and distress when she witnessed a dog attacking and savaging her spouse. The present contribution uses Visser’s article as point of departure for investigating the nature and limits of delictual liability without
fault for psychiatric injury and for examining the role of legal policy in various delictual elements in determining whether delictual liability should be recognised in a given case or not. It is pointed out that legal policy plays a role not only in delictual elements such as wrongfulness, negligence and legal causation, but also influences the overarching question whether in a given case delictual liability should be imposed or not, despite the presence of all the delictual elements.