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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, in particular the tort of negligence where emphasis is placed on reasonable foreseeability of harm. The courts in both jurisdictions generally face challenges with who exactly is entitled to claim, the quantification of the damages that should be awarded and how to limit delictual or tort liability emanating from these types of claims. South African law also followed English law in making the distinction between primary and secondary victims and as will be shown in this contribution, limiting liability in respect of secondary victims is problematic. The courts generally tread with caution in awarding damages for pure psychological or psychiatric harm and several policy considerations are taken into account when deciding to award damages or not. Nevertheless, as will be shown in this contribution, the courts in South Africa and the United Kingdom acknowledge these claims and have been developing the law around the cases that have come before them. What is rather interesting and prevalent though with regard to primary and secondary victim claims for psychological or psychiatric harm in these jurisdictions, is the implicit and explicit influence of "reasonableness" in determining delictual or tort liability for these types of claims. This will be explored further in this contribution.

American and French law, like South African law recognises claims for emotional or mental harm. Emotional, mental, or psychological harm was only recognised by the courts in the 1800's and even though the mind and body in a sense is considered as a unit, these types of claims are not on par with claims for physical bodily injury. In fact, these types of claims can be regarded as sui generis but within the broader ambit of delictual or tort liability. Finding delictual or tort liability for emotional, mental or psychological harm has been problematic not only in South Africa but also in the United States of America and France. Even though there are fundamental differences in the law between these jurisdictions, the broader questions the courts face is whether a claimant is entitled to claim, the amount of damages that should be awarded and how to limit liability with these types of claims. Limiting liability for emotional or mental harm is generally the main policy concern but the courts have found ways of using the elements or concepts such as reasonable foreseeability of harm to limit the claims. American, French, and South African law recognise claims for emotional, mental or psychological harm by primary and secondary victims. Thus emotional, mental, or psychological harm caused directly or indirectly is compensable. In American and French law, the concept of reasonableness plays an important role, whether it be implicit or explicit, in determining delictual or tort liability for emotional or mental harm. In a sense also, reasonableness plays an overarching role in determing the liability. In a previous contribution, the influence of reasonableness in determining delictual or tort liability for psychiatric or psychological harm in English and South African law was discussed. In this contribution, the focus is on the influence of reasonableness in determining delictual or tort liability for emotional or mental harm in American and French law.

The standard of the reasonable person or its equivalent, in general, is used in many jurisdictions to determine fault in the form of negligence. Although the standard is predominantly objective it is also subjective in that the subjective attributes of the person against whom the standard applies as well as the subjective circumstances present at the time of the delict or tort lend themselves to an objective-subjective application. In South African law, before a person can be judged according to the standard of the reasonable person, the person must first be held accountable. If a person cannot be held accountable, then the standard does not apply at all. The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments or experts. Therefore, depending on the subjective attributes of the person against whom the standard is being applied, the standard may have to be adjusted accordingly. The general standard of the reasonable person would be raised when dealing with experts, for instance, and lowered when dealing with persons with physical disabilities. This contribution considers whether the current application of the standard of the reasonable person in South African law is satisfactory when applied generally to all persons, no matter their age, experience, gender, physical disability and cognitive ability. The application of the standard of the reasonable person in South African law is compared to the application of the standard of the reasonable person or its equivalent in the United Kingdom, the United States of America and France. Just as South African law applies the standard of the reasonable expert to experts, this contribution explores whether the South African law should be developed to use similar adjusted standards when dealing with children, the elderly, persons with physical disabilities and so on. The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments as well as experts. Thus depending on the subjective attributes of the person against whom the standard is being applied, the standard may have to be adjusted accordingly or if the person cannot be held accountable, not applied at all. The general standard of the reasonable person would for example be raised when dealing with experts and lowered when dealing with persons with physical disabilities. This contribution considers whether the current application of the standard of the reasonable person in South African law is satisfactory when applied generally, to all persons, no matter their age, experience, gender, physical disability and cognitive ability. The application of the standard of the reasonable person in South African law is compared to the application of the standard of the reasonable person or its equivalent in the United Kingdom, the United States of America and France. Just as South African law applies the standard of the reasonable expert to experts, this contribution explores whether the South African law should be developed to use similar adjusted standards when dealing with children, the elderly, persons' with physical disabilities and so on. [1] In French law bonus pater familias as three separate words is encountered (see para 3.4 below) whereas in South African law, bonus paterfamilias, as two separate words is encountered (see for example, Neethling and Potgieter Law of Delict 142-143). In this contribution, for the sake of uniformity and convenience, bonus pater familias as three separate words will be used.

In this contribution the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct in English tort law, American tort law and the French law of delict. Fundamental similarities and differences among the different legal systems must be considered. France and South Africa follow a generalising approach to determining a delict while English and American law have a system of separate torts. Even though English and American law do not explicitly refer to the requirement of conduct in tort law, it is generally implicitly required. This is the case whether one is dealing with the tort of negligence or the intentional torts. In French law too, a fait générateur (a generating, triggering, wrongful act or event) generally must also be present in order to ground delictual liability. The concept of fait générateur is broader than the concept of conduct found in the other jurisdictions in that it extends beyond what is regarded as human conduct. The conduct in all the jurisdictions may be in the form of a commission (a positive, physical act or statement) or an omission (a failure to act). The requirement that conduct must be voluntary is generally found in South African, English and American law (with an exception applying to mentally impaired persons) but not in France. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. In all the above-mentioned jurisdictions, it would generally be unreasonable to hold the wrongdoer liable in delict or tort law if the omission or commission does not qualify as some form of conduct. Thus the influence of reasonableness on the element of conduct in all the above-mentioned jurisdictions is implicit.

In terms of delictual liability, the term "fault" generally refers to the defendant's conduct, whereas "contributory fault" refers to the plaintiff's conduct. "Contributory intent" is a form of "contributory fault" and may apply as a defence limiting delictual liability within the ambit of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as the "Act"). In terms of the Act, the extent of the plaintiff's as against the defendant's fault is taken into account, resulting (in certain instances) in a reduction of the award to the plaintiff. The Act currently regulates the apportionment of damages based on fault in South Africa. The Act does not specifically provide for conduct performed intentionally, and this also seems to be the situation in quite a few foreign jurisdictions. Initially our courts applied the Act to instances of "contributory negligence" (the other form of "contributory fault") only, but in recent times they have applied it to instances of "contributory intent". This change has occurred as a result of practical situations that arose unexpectedly, where the courts had in the interest of serving justice to deal with cases of intentional conduct on the part of the plaintiff and the defendant. The effect of "contributory intent" as a defence in terms of delictual liability is uncertain and contentious not only in South Africa but in foreign jurisdictions as well. The South African Law Reform Commission undertook a review of the Act and published a report on its findings. The Commission acknowledged that since the Act was passed there have been major developments in the law of delict which the Act has been unable to accommodate, resulting in anomalies in this area of the law. It acknowledged that it is unsatisfactory for our courts to go beyond the parameters of the Act in order to reach a just and equitable result when dealing with the apportionment of liability. The Apportionment of Loss Bill 2003 (hereinafter referred as the "Bill") has been drafted to replace the current Act but has unfortunately not been promulgated. Over ten years have passed since it was drafted. In respect of the Bill, "contributory intent" as a defence limiting delictual liability would be recognised. It is hoped that this contribution will bring about a renewed interest in this forgotten but valuable Bill.

The RAF Amendment Act 19 of 2005 came into effect on 1 August 2008 and sections 17(1) and 17(1A) introduced the concept of “serious injury”. This entails that a third-party claimant who wishes to claim compensation for non-patrimonial loss suffered after a motor-vehicle accident has to prove that his or her injury is “serious”. If the claimant’s injury is not considered “serious” no compensation will be awarded for the non-patrimonial loss suffered and, furthermore, the claimant will also not be entitled to claim any compensation from the wrongdoer in terms of common law (s 21 of the RAF Act). In a sequence of unreported cases the courts have provided guidelines on the procedure to be followed in serious-injury claims. Firstly, a claimant must submit himself or herself to an assessment by a medical practitioner registered under the Health Professions Act. Secondly, the medical practitioner must assess if the injuries sustained by the claimant fall within the list of “non-serious injuries”, and if so, compensation for non-patrimonial loss will not be awarded. If the injury is not on the list of non-serious injuries, the medical practitioner may assess the injuries and if they result in 30 per cent or more of whole-person impairment (“WPI”) compensation for non-patrimonial loss may be awarded. If the evaluation is that the 30 per cent of WPI cannot be reached, non-patrimonial loss may still be claimed if the injuries fall within the “narrative test”, namely (a) resulting in a serious long-term impairment or loss of a body function; (b) constituting permanent serious disfigurement; (c) resulting in severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) resulting in the loss of a foetus. A plaintiff may use either of the two tests to establish serious injury and in such a manner qualify for compensation for non-patrimonial loss. A medical practitioner must complete and submit a serious-injury assessment report on the RAF 4. If the RAF is not satisfied that the injury has been correctly assessed they must (a) reject the serious-injury assessment report within 60 days and furnish reasons for the rejection; or (b) direct that the third party submit himself or herself, at the cost of the Fund, to a further assessment. Thereafter the RAF must either accept the further assessment or dispute the further assessment within 90 days. An Appeal Tribunal, consisting of three independent medical practitioners, has been created to hear these disputes.