Unlike Multimark type liability policies, Broadform liability policies include mental injury in the definition of Injury. Why has it become necessary to give this cover?
- South African law is based on the Roman-Dutch law which only provided for pecuniary losses i.e. medical and other expenses, loss of earnings and loss of support.
- Around the start of the twentieth century the courts started making awards for non-pecuniary losses. Initially this was just for pain and suffering endured by the person who was injured. However this has since been expanded into general damages which includes pain, suffering, bodily disfigurement and loss of life expectancy.
- Despite this, the compensation was still limited to the pain and suffering endured by the person who was injured – there was no compensation for loved ones who suffered metal injury when they saw that injury or death.
- A well-known example of this was the 1957 court ruling on Mulder v South British Insurance Co Ltd. A mother who saw her child killed by a bus was denied compensation for her mental anguish because she did not fear for her own safety.
- A significant development occurred in 1999 when the Supreme Court of Appeal ruled on the matter of Barnard v Santam Bpk. Mrs Barnard was advised telephonically that her son had been killed in a motor accident. As a result she sustained psychiatric injury and the court awarded her compensation for this injury.
- The upshot is that South African law has changed to the point where, today compensation is not only awarded to those who were not physically injured, but it is not even necessary for them to be present at the scene of the accident.