Khoza v Member of the Executive Council for Health, Gauteng Provincial Government

The appellant, Nokuthula Nomsa Khoza, acting on behalf of her minor son Zamokuhle Khoza, sued the MEC for Health, Gauteng, for damages arising from medical negligence during Zamokuhle’s birth at Chris Hani Baragwanath Hospital on 25 May 2008. Due to negligent management of foetal distress resulting in perinatal asphyxia, Zamokuhle suffered severe hypoxic-ischaemic brain injury leading to spastic cerebral palsy, quadriplegia, intellectual disability, epilepsy, and multiple lifelong impairments. Liability for 100% of proven damages was previously established. The remaining dispute concerned the appropriate quantum for general damages and the contingency deduction applicable to future loss of earnings.

The appeal was upheld with costs. The SCA set aside the High Court’s order and substituted it with an order awarding total damages of approximately R19.05 million, including general damages of R1.8 million and a 20% contingency deduction on future loss of earnings. Payment was ordered in terms of the State Liability Act into a trust for the benefit of the minor child.

This case is significant for reaffirming principles governing the assessment of general damages in severe brain injury cases and rejecting the notion that such damages duplicate medical expenses. It emphasises consistency in awards across jurisdictions, clarifies the proper approach to contingency deductions, and cautions against arbitrary judicial reasoning. The judgment is frequently cited in medical negligence and quantum disputes.