Dear colleagues
Some of you may be interested to consider the potential tortious or delictual consequences of a recent incident in Johannesburg: a hospital allegedly led a family to believe for five days that their daughter had died after being admitted for treatment of a stroke, when in fact she was alive: ‘A nurse told them that them that [her] body had already been wrapped for removal after being declared dead but then it was discovered she was still living.’ (http://www.news24.com/SouthAfrica/News/meyerton-family-livid-at-hospital-after-finding-dead-daughter-alive-20160929). The family are threatening to sue.
The South African law of delict as it stands would deny a claim by the traumatised family for negligently inflicted ‘pure emotional distress’ short of psychiatric injury: our so-called action for pain and suffering lies only in cases of physical or psychiatric injury. English law and, I understand, most common law jurisdictions would also deny a claim for lack of duty (absent a contract aiming to avoid mental distress). Recognising non-contractual duties to refrain from careless representations occasioning mere distress poses obvious difficulties (eg limiting free speech; of fraudulent claims; quantifying damages; overburdening limited judicial resources). Yet the gravity of the incident above, if true, may illustrate a harsh edge to the rule.
I would be grateful to learn whether any common law or civilian jurisdictions recognise a duty and/or impose liability in analogous circumstances, departing from the view that they involve ‘one of the many moral obligations inherent in society that cannot be enforced by the courts’. I am aware of Mason v Westside Cemetries 1996 135 DLR (4th) 361 where the Ontario SC awarded $1000 for emotional distress consequent on a cemetery’s negligent loss of urns containing the ashes of the plaintiff’s parents - a case not involving negligent words. Mullany and Handford state that by the end of the 20th century at least 24 US jurisdictions recognised a cause of action for negligent infliction of emotional distress, early examples having involved negligent mishandling of corpses and negligent transmission of telegraphs. Is there a rational principle that could distinguish deserving and undeserving cases? Or are all truly undeserving?
Coincidentally there have been comparable reports this year in Canada (www.cbc.ca/news/canada/manitoba/seven-oaks-death-notification-1.3791784 ) and Australia (www.stuff.co.nz/world/australia/79051080/Extra-distress-for-family-after-Victoria-Police-mistakenly-announces-footballers-death ) although the confusion was apparently cleared up more quickly in these instances.
Best wishes
Alistair
Alistair Price
Associate Professor
Faculty of Law, University of Cape Town
Private Bag X3, Rondebosch, Cape Town, 7700, SA
Tel: +27 21 650 5612
alistair.price@uct.ac.za
www.privatelaw.uct.ac.za/pvl/staff/alistairprice
https://uct.academia.edu/AlistairPrice
Some of you may be interested to consider the potential tortious or delictual consequences of a recent incident in Johannesburg: a hospital allegedly led a family to believe for five days that their daughter had died after being admitted for treatment of a stroke, when in fact she was alive: ‘A nurse told them that them that [her] body had already been wrapped for removal after being declared dead but then it was discovered she was still living.’ (http://www.news24.com/
The South African law of delict as it stands would deny a claim by the traumatised family for negligently inflicted ‘pure emotional distress’ short of psychiatric injury: our so-called action for pain and suffering lies only in cases of physical or psychiatric injury. English law and, I understand, most common law jurisdictions would also deny a claim for lack of duty (absent a contract aiming to avoid mental distress). Recognising non-contractual duties to refrain from careless representations occasioning mere distress poses obvious difficulties (eg limiting free speech; of fraudulent claims; quantifying damages; overburdening limited judicial resources). Yet the gravity of the incident above, if true, may illustrate a harsh edge to the rule.
I would be grateful to learn whether any common law or civilian jurisdictions recognise a duty and/or impose liability in analogous circumstances, departing from the view that they involve ‘one of the many moral obligations inherent in society that cannot be enforced by the courts’. I am aware of Mason v Westside Cemetries 1996 135 DLR (4th) 361 where the Ontario SC awarded $1000 for emotional distress consequent on a cemetery’s negligent loss of urns containing the ashes of the plaintiff’s parents - a case not involving negligent words. Mullany and Handford state that by the end of the 20th century at least 24 US jurisdictions recognised a cause of action for negligent infliction of emotional distress, early examples having involved negligent mishandling of corpses and negligent transmission of telegraphs. Is there a rational principle that could distinguish deserving and undeserving cases? Or are all truly undeserving?
Coincidentally there have been comparable reports this year in Canada (www.cbc.ca/news/canada/
Best wishes
Alistair
Associate Professor
Faculty of Law, University of Cape Town
Private Bag X3, Rondebosch, Cape Town, 7700, SA
Tel: +27 21 650 5612
alistair.price@uct.ac.za
www.privatelaw.uct.ac.za/pvl/
https://uct.academia.edu/