Claims for general damages, particularly for emotional shock as well as pain and suffering, are a regular feature in personal injury litigation. However, under South African law, grief without an underlying psychiatric lesion associated with such grief cannot form the basis of a damages claim and this principle is sometimes overlooked.
The issues above were recently considered by the North West Division of the High Court , sitting in Mahikeng, which was called upon to determine in G.K. M v Lehurutshe Hospital and Another (83/2021B) [2026] ZANWHC 40 (27 February 2026), a tragic case where the plaintiff was mistakenly given the wrong baby's remains for burial by mortuary staff at a public hospital. This led to the exhumation of the body she had buried under the mistaken belief it was her child's body. As a result, she sued for damages for trauma, emotional shock, and pain and suffering. In defending the matter, the defendants denied that the plaintiff had suffered a compensable psychiatric injury.
On the evidence, the court found that the hospital staff had acted negligently. However, proof of negligence alone was insufficient to establish a delictual claim as the plaintiff was also required to prove that she had also suffered a detectable psychiatric injury, in the form of a recognised mental illness or psychological condition, through expert medical evidence. Mere nervous shock or trauma is not sufficient.
As the plaintiff did not lead expert evidence, the court was unable to conclude that the plaintiff had sustained a recognisable psychiatric injury. Expert psychiatric diagnosis was necessary and had to be proven in order for the plaintiff to succeed. To find for the plaintiff on the basis of her subjective evidence alone would lead to chaos and open floodgates for underserving matters. Accordingly, the plaintiff's claim was dismissed with costs.
The judgment is a timely reminder that expert evidence is indispensable to assist the court and the parties in certain types of damages claims. Parties who proceed to trial without presenting such evidence face a significant risk of an adverse judgment.
