Melissa Rivers, the daughter of the late Fashion Police star, Joan Rivers, is reportedly instituting a wrongful death claim against the medical practitioners who treated her mom prior to her death in September 2014. A wrongful death claim can be instituted in South Africa based on negligence which results in death, although this is not all that a plaintiff must prove.
In South Africa, a plaintiff must prove not only that the wrongful death was negligently caused, but also that the surviving family members suffered a loss of financial support or that they have suffered emotional or psychological damage following the death of their loved one. It is not easy to prove these losses.
Hospital groups and medical professionals are vulnerable to wrongful death claims. Wrongful death claims affects indemnity insurers and state health departments.
Loss of support and loss of services
Not everyone can claim for loss of support. So far, only relationships between parent and child, brother and sister, grandchild and grandparent and between spouses give rise to duties of support for which one may be compensated, although this is not a closed list. For instance, with sufficient evidence, relationships akin to marriage have also been recognised.
The deceased’s spouse will be entitled to claim loss of support which she would ordinarily have received from her husband. The deceased’s child is similarly entitled to loss of support but only until they become self-supporting. This is not necessarily at the age of majority as parents often support their children into adulthood, for example, while the child is studying further. The child is also not entitled to support where the duty of support has shifted from the deceased to another such as when the daughter gets married. An additional requirement exists for relatives, other than the deceased’s spouse or child, who must show the court that they are indigent.
The amount claimed for loss of support is dependent on the deceased’s income at the time of death. For example, the general rule is that a deceased parent would have supported their child from their income at a ratio of two parts for themselves, two parts for their spouse and one part per child. The general rule, however, is merely a guideline and evidence may be led on what would be more appropriate in the circumstances.
In all circumstances, the plaintiff will not be entitled to claim where the deceased was too indigent at the time of death to have provided support.
Emotional or psychological damage
Expert evidence is needed to prove a claim for emotional and psychological damage. This requires an assessment by a psychologist and a diagnosis of something like post-traumatic stress disorder. Passing symptoms and grief do not equate to a recognised psychological injury.
In 2013 an award of R200 000 for general damages was given to a plaintiff whose minor son was unlawfully shot and killed at the hands of employees of the defendant. She was also awarded damages for future loss of income of just over one million rand. The mother witnessed the shooting, but even had she only been informed of her son’s death, she might still have had a claim. With expert testimony she was able to demonstrate that she suffered from chronic and severe post-traumatic stress disorder and a major depressive disorder.
This is the largest general damages award made by a court to date under these circumstances, although parties may in the past have negotiated larger settlements in private.