The Supreme Court for England and Wales (ESC) recently ruled that while doctors owe a duty of care towards their patients, they do not owe a similar duty to that patient’s family.  

Like South African law, English law allows those who suffer mental injury after witnessing an accident to sue for damages as a secondary victim.  The ESC nevertheless refused to extend this principle to witnesses of either a negligent death of a family member or a medical crisis of a family member. 

The ESC noted that because accidents are discrete events that invariably cause mental anguish, and because witnesses to accidents are usually also afraid for their own safety, the principle could not be extended to witnesses of death and disease.  The trauma of witnessing the death of a loved one due to disease will differ from person to person and does not present a threat to the witness’s safety.   

Doctors are also not expected to protect patients’ families from exposure to traumatic experiences.

While the English position has varied throughout the years, South African courts have consistently relied on the foreseeability of the harm suffered  when considering claims for psychiatric injury (see Barnard v Santam Bpk and Dawkins v Administrator, Transvaal for example).

In Komape v Minister of Basic Education, the family of a child who died in tragic and preventable circumstances was awarded damages for emotional shock and trauma that caused psychiatric injury.  While the South African Supreme Court of Appeal found that the family should be compensated for suffering from detectable psychiatric injuries, it refused to develop the common law to allow for a claim for grief not resulting in a psychiatric injury, on the basis that grief alone is not enough for a claim to succeed.  The grief must cause psychiatric injury.

Those who witness a family member’s death due to medical negligence could therefore succeed in a claim if they prove that the emotional shock and trauma was reasonably foreseeable by the negligent doctor and that this caused them to suffer a detectable psychiatric injury.