In a landmark ruling in MEC for Health v AAS obo CMMS, the Supreme Court of Appeal (‘the SCA’) recently upheld an appeal by the Gauteng MEC for Health against a High Court decision awarding general damages to a child who was diagnosed with cerebral palsy and remains in a permanently vegetative state.
After suffering severe neurological injuries during labour and delivery due to the negligence of public healthcare staff, a minor child was subsequently diagnosed with cerebral palsy – a condition worsened by various other cognitive and physical impediments, including intractable uncontrolled epilepsy, cortical visual impairments, and chronic dislocation of his left hip. Resultantly, he is incontinent, unable to speak, cannot sit or move independently, and is not expected to live beyond adolescence.
The child’s biological mother subsequently instituted legal action – in her personal and representative capacity – against the MEC. The North Gauteng High Court awarded the child more than R15.5 million, a sum that included R13.3 million in special damages and a further R2.2 million in general damages. Crucially, general damages are non-pecuniary in nature and recognise a claimant’s pain and suffering and loss of amenities of life.
The MEC appealed the general damages award, arguing that the child – who is in a permanently vegetative state – was not entitled to such damages, alternatively that the amount should be drastically reduced.
On appeal, two central legal issues were considered: Whether the child was in an unconscious, vegetative state; and if so, whether he could still be awarded general damages for loss of amenities of life.
Upon an assessment of the extensive evidence, the SCA was divided. A minority judgment by Kgoele JA found that the child, although profoundly disabled, was not fully unconscious and experienced brief moments of awareness. Accordingly, he was entitled to general damages. In addition, Kgoele JA contended that even if the child were unconscious, such damages could still be justified on the basis that he was deprived of the ability to enjoy life.
The majority judgment, composed by Makgoka JA and supported by two other justices, disagreed. In a considered analysis, Makgoka JA found that the child was indeed in a vegetative state and had never experienced a life other than one defined by profound disability. Drawing from prevailing law, foreign jurisprudence, and academic opinions, the majority held that general damages must serve a functional purpose. Distinguishing the ‘functional approach’ from the ‘objective approach’, the SCA emphasised that South African law has generally rejected the latter approach, which permits damages purely for the fact of injury. Instead, our law typically favours the ‘functional approach’. Under this doctrine, general damages offer solace to the claimant for pain, suffering, or loss of life’s pleasures. In the case of an unconscious claimant, this purpose is absent. Consequently, our courts are required to consider whether a general damages award can truly benefit the claimant personally.
In a significant decision, the SCA concluded that the general damages award of R2.2 million had no legal basis. In the majority’s view, the child’s physical and care needs were addressed through the special damages award of more than R13.3 million and no evidence was presented to demonstrate how the additional award would exclusively benefit him. Accordingly, the High Court’s order was amended, and the appeal was upheld with costs.
If you’re navigating a personal injury claim, ensure you have a legal team that understands the intricacies of general damages. Contact our personal injury law attorneys at injuries@stbb.co.za for expert legal support.
This content is the property of STBB. We encourage the sharing of our content for informational purposes. However, if you wish to copy or reproduce our content on your own platform or website, please ensure that proper credit is given to STBB.
