MEC for Health, Gauteng Provincial Government v AAS obo CMMS

CMMS, the biological mother of AAS (a minor child), initiated legal action against the MEC for Health, Gauteng Province for damages arising from neurological injuries the child sustained during labor and delivery at Tshwane District and Steve Biko Academic hospitals on 18 October 2015. The child was diagnosed with cerebral palsy complicated by cortical visual and hearing impairments, intellectual disability, intractable epilepsy, and chronic left hip dislocation. The child cannot sit, crawl, walk independently, or speak. His estimated life expectancy is approximately 18 to 20 years. On 27 January 2020, the MEC conceded full liability. Only quantum of damages was determined. The high court awarded R15,530,576 total damages, including R2,200,000 for general (non-pecuniary) damages. The trial proceeded without oral testimony, based on expert reports admitted as hearsay evidence by consent. The MEC appealed only the general damages award with leave of the high court.

• Whether a minor child with severe cerebral palsy who experiences pain but has diminished intellectual capacity is in a 'vegetative state' or experiences 'twilight moments'
• Whether awareness is a prerequisite (sine qua non) for an award of general damages for pain and suffering and loss of amenities of life
• Whether an unconscious claimant is entitled to general damages for loss of amenities of life
• The juridical basis and approach for awarding general (non-pecuniary) damages to unconscious or minimally aware claimants
• Whether the high court properly exercised its discretion in awarding R2,200,000 for general damages
• The relevance of the purpose or function an award will serve in determining general damages for unconscious claimants

The appeal succeeded with costs, including costs of two counsel. The order of the high court was amended by deleting the award of R2,200,000 for general damages and replacing it with 'There is no award for general damages'. The award for special (pecuniary) damages was not disturbed.

An unconscious claimant is not entitled to compensation for pain and suffering. For loss of amenities of life, such compensation can only be awarded to an unconscious claimant to the extent that it can serve some function for the personal and exclusive benefit of the claimant. Where adequate provision has been made through special (pecuniary) damages for the unconscious claimant's physical needs, and there is no evidence as to what additional amounts would be used for the claimant's exclusive benefit, there is no juridical basis for awarding general (non-pecuniary) damages for loss of amenities of life. The purpose to be served by an award of damages to an unconscious claimant is a relevant factor to be considered in determining whether general damages should be awarded. South African law adopts a functional approach rather than the English objective approach to general damages for unconscious claimants.

The majority judgment made several important obiter observations: (1) The practice of granting orders without reasons in opposed matters is unacceptable and constitutes a grave lapse of judicial duty. (2) When assessing general damages, courts should separately state amounts for pain and suffering versus loss of amenities of life, rather than awarding a globular amount. (3) Courts must consider the interrelationship between special and general damages - substantial awards for medical expenses and care should influence the quantum of general damages. (4) Previous comparable cases serve only as a guide; courts should not slavishly follow previous awards but must provide reasoned bases for their conclusions. (5) The remarks in NK obo ZK v MEC for Health, Gauteng that courts need not determine the purpose or function of an award were obiter dicta made in passing and do not constitute binding authority. (6) Arguments that denying general damages to unconscious claimants equates them with dead persons, while morally uncomfortable, reflect how the legal system operates. (7) Awarding damages to express society's outrage impermissibly introduces a punitive element into delictual law. (8) Constitutional dignity arguments do not support general damages where adequate special damages have been awarded to meet all physical needs.

This is a landmark judgment that definitively pronounces on the compensation of unconscious claimants for non-pecuniary loss in South African law. The majority judgment: (1) Clarifies that awareness is not a sine qua non for general damages per se, but distinguishes between pain/suffering (where awareness is required) and loss of amenities (where it may not be). (2) Adopts a functional approach: general damages for loss of amenities to unconscious claimants should only be awarded to the extent they serve some purpose for the claimant's exclusive benefit. (3) Rejects the English 'objective approach' that awards damages regardless of awareness or utility. (4) Resolves conflicting high court decisions (Gerke, Reyneke, Collins) by endorsing the reasoning in Collins. (5) Clarifies that remarks in NK v MEC for Health, Gauteng about not considering the purpose of awards were obiter dicta and not binding. (6) Emphasizes that where adequate provision is made through special damages for an unconscious claimant's physical needs, additional general damages serve no compensatory purpose and would impermissibly benefit heirs rather than the claimant. (7) Reaffirms that South African delictual damages are compensatory, not punitive. The judgment has significant implications for medical negligence claims involving severely brain-damaged children and unconscious claimants, potentially reducing the quantum of damages awards in such cases.