Does the shock of learning of your favourite musician’s death entitle you to sue the person who caused the death?  That may sound ridiculous but that is exactly what happened following the death of Michael Jackson from an anaesthetic drug overdose in 2009.

French court’s decision

A French court in the city of Orléans has awarded damages to five Michael Jackson fans who proved that they had suffered ‘emotional damage’ from the pop star’s death.

Although 34 fans sued Michael Jackson’s doctor, Conrad Murray, for having negligently caused his death only five were awarded damages after having proved they suffered emotionally as a result.  They were each awarded the grand sum of €1 as a notional amount.  Well, at least that’s affordable for Dr Murray who has recently been released from prison.

But Michael Jackson’s shocked fans are in their millions, so what will happen if these actions are allowed? The truth is that this type of lawsuit will not get off the ground in South Africa for a number of reasons. 

South African law

South African law does recognise a claim for emotional shock particularly where the victim has observed or learned of an unpleasant or disturbing event such as the death of a loved one. But the victim must be able to demonstrate a close connection to the deceased and  a recognised psychological injury or illness supported by medical evidence. The emotional shock experienced by a victim need not be connected to a physical injury or a fear of personal danger of being physically injured.

But what counts as emotional shock?  Our courts will not award damages for grief - however callous that may sound.  Although our courts try to be flexible, no damages are awarded if the victim’s shock is of a transient nature or of no enduring significance to the victim’s general health. A psychological injury resulting from emotional shock must be serious enough to require medical treatment before our courts are willing to consider damages.

The key issue to consider is how foreseeable was it that the death of a pop star could cause fans across the globe to suffer emotionally on hearing or seeing the news and should the consequences be compensated?  Courts consider the reasonable foreseeability of those emotional consequences from the position of the wrongdoer, that is, the person who negligently caused the death or disturbing event.  Our courts are conservative in deciding just what types of harm and consequences should be regarded as actionable. Claims with an almost endless list of potential claimants are seldom allowed. 

The downfall for fans will be the distance between fans and the star object of their adoration.  To date, our courts have declined to award damages where no close relationship exists between an emotionally distraught victim and the deceased person.  This is an important safeguard in our law, because, without it, just about everybody could be sued every time someone famous is killed. And that would be an even stranger world to live in!

Another question is: how does one put a price on emotional and psychological injuries, since the damage cannot be measured in money?  After all, no amount of money is going to bring Michael Jackson back. 

Our courts look at the nature, extent and duration of the psychological consequences of the emotional shock, the severity of the injury and its effects and the extent to which these will influence the victim’s future emotional well-being.  That being said, damages awards for emotional shock in SA remain small in comparison to other types of physical injury which grab newspaper headlines from time to time. If the psychological injury is only worth €1 it could not be serious enough to justify a damages award.

This case serves as a reminder to all of us that there are things, like grief and sorrow, that even the law cannot compensate for.

Written by Justin Malherbe, Associate, Norton Rose Fulbright South Africa