Mental Health Injury Claims in South Africa

Worldwide, there is increasing recognition of mental distress and conditions like post-traumatic stress disorder (PTSD), depression and anxiety as compensable damages in legal cases.

Here in South Africa, we are also seeing strides being made, with greater legal recognition of mental health injuries across different areas of the law, including personal injury law.

Compensation for mental health injuries in personal injury claims

Compensation for physical injuries, such as broken bones, traumatic brain injuries or spinal cord damage, are more commonly made in personal injury claims.

In South Africa, compensation for mental health injuries in personal injury claims can be made but cases are complex, and injuries are not always easy to prove.

As the law stands, compensation may be awarded for “emotional shock” – a vague term – or for a medically recognised psychiatric or psychological condition, such as post-traumatic stress disorder (PTSD), caused directly by a traumatic event or negligent act.

Consider these three examples, in which compensation could be successfully claimed:

• A man suffers behavioural changes following head trauma in a road accident and this prevents him from working, leading to a claim for loss of earnings.
• A woman suffers PTSD after being trapped in a vehicle for six hours following a road accident on a remote rural road and is unable to work, leading to a claim for past and future medical expenses and loss of earnings.
• A woman suffers from claustrophobia and PTSD after being trapped alone in a lift at a shopping mall for 12 hours and is unable to work, leading to a claim for loss of earnings, as well as past and future medical expenses for ongoing therapy.

To be eligible, the condition must be a recognised psychiatric illness, not a normal emotional reaction like grief. The claim must prove the condition was caused or worsened by a specific incident and meet the criteria for a legal claim.

What compensation can be claimed?

In personal injury cases, compensation can be claimed for:

• past and future loss of earnings
• past and future medical expenses
• general damages for pain, suffering and loss of amenity.

The specific amounts awarded depend on factors like the severity of the injury, the plaintiff’s role in the accident, and evidence submitted. 

Is compensation payable for grief after a person dies due to another party’s negligence?

If a person dies due to another party’s negligence, dependants can claim loss of support and funeral expenses. Currently, the law does not compensate families for grief.

However, in the Komape case (Komape v Minister of Basic Education), the Supreme Court of Appeal awarded damages to the Komape family for emotional shock and grief after their son, Michael, five, drowned in a school pit toilet in 2014, suffering “the most appalling and undignified death”.

The judgement affirmed the right to claim damages for emotional and psychological injury resulting from the death. Specifically, the judgement stated, “In respect of the claim for emotional shock and grief, the first and second defendants are ordered to pay the following amounts” … and ordered a combined R1,400,000 in compensation for the Komape family.

This precedent is a step in the law towards compensation for pure grief and bereavement, rather than only for “emotional shock”, a vague and hard to define legal term.

Can you claim for anxiety or depression?

Anxiety and depression may be recognised as compensable injuries in South African courts, but these claims are complex. To succeed, a lawyer must prove the anxiety or depression is serious and that it was caused by someone’s unlawful and negligent actions.

Expert medical evidence would be required to confirm a psychiatric condition and explain its link to the incident/accident that caused it.

In the case of the Road Accident Fund, however, anxiety and depression are typically categorised as “non-serious”. This means that you can’t claim for general damages on the basis of these conditions, although there may be scope for claiming associated loss of earnings.