Abstract

This judgment attracted considerable media attention, because for the first time in South Africa sentimental damages were awarded for psychological lesion caused to a dog owner who had been deeply shocked by observing lacerations to his pet, caused by the negligence of a veterinarian practice. The plaintiff-owner instituted a contractual claim for malperformance against the defendant, for consequential damages on the basis that the defendant’s negligent conduct had rendered his dog unfit for competing in dog shows which could benefit him financially and compelled him to visit her for a prolonged period while undergoing treatment, as well as for general damages for emotional shock. In the alternative he claimed for the psychological harm caused by his emotional shock on the basis of delict. Finally, he applied for a declaratory order to have the defendant declared unfit to be in charge of any animal for a period of 12 months due to contravention of the Animal Protection Act 71 of 1962. The plaintiff was awarded consequential damages, as well as sentimental damages on the basis of breach of contract. The court found it unnecessary to pursue the delictual route, while it refused to issue the declaratory order prayed for.
The court’s decision on refusing the contractual action for malperformance, its award of consequential damages and its refusal to issue the declaratory order were well-founded. Its award of sentimental damages for the psychological harm suffered by the plaintiff on the basis of contract flies in the face of established contractual principles, as contractual claims are intended to place a creditor as much as possible in the same position regarding his or her property that he or she would have been if the contract had been performed. It would appear that some support for this part of the judgment can be found in a few American judgments. The court’s erroneous judgment on this point ruled out any decision on the merits of a delictual claim for sentimental damages due to suffering psychological lesion due to nervous shock. A further unacceptable aspect of the judgment was its failure to require expert evidence on the plaintiff’s psychological harm.
An assessment is made of the chances of success of a claim for sentimental damages on the basis of delict, accepting that the plaintiff had been successful in proving clear psychological harm. Reference is made to case law which appears to be adverse to a claim such as the present, as well as to certain South African authors who are well disposed to allowing a claim such as the present on the authority of an obiter dictum from the judgment of Masiba v Constantia Insurance Co Ltd (1982). A brief survey of American law shows that the majority of states do not allow claims of this kind for harm caused to companion animals, whereas the present state of English law also does not appear to favour such claims. The judgment fails to conform to any of the recognised precepts of judgment writing, in particular in omitting any reference to authority. The court in fact issued an order which is neither final, nor able of execution. It stands as a stark display of how the court’s patent sympathy with the plaintiff’s unhappiness affected its judgment in discarding basic contract law precepts, as well as established evidence and procedural rules in order to reach a judgment in conformity with mere empathy.