T N obo B N v The Member of the Executive Council for Health of the Eastern Cape Government and Others

On 22 December 2011, the appellant (Ms N) gave birth to her son (B N) at Cecilia Makiwane Hospital in the Eastern Cape. Due to negligence by hospital staff during labour and delivery, the child sustained spastic quadriplegic cerebral palsy, rendering him severely disabled, totally dependent on caregivers, virtually blind but capable of hearing, with an estimated life expectancy of 22.8 years. In 2017, the appellant sued the MEC for Health, Eastern Cape, for damages. The MEC admitted liability. The parties settled several heads of damage (general damages, loss of earnings, motor vehicle costs), but the High Court (Bhisho) developed the common law by abolishing the once-and-for-all rule and the rule that damages must sound in money. Instead, it ordered the State to provide future medical care and supplies in kind through a 'public healthcare remedy' at designated State hospitals, coupled with an 'undertaking to pay' remedy for certain private services. The appellant appealed against this development, with leave of the High Court.

• Whether the common law once-and-for-all rule and the corollary that damages must sound in money should be developed under s 39(2) and s 173 of the Constitution to accommodate in-kind public healthcare and undertaking-to-pay remedies in medical negligence claims against the State.
• Whether the High Court erred in framing the standard of future State medical care as one of 'reasonableness' under s 27(2) rather than an equivalently high standard.
• Whether the proposed development constitutes incremental judicial development or a radical restructuring of the law of damages that should be left to the legislature.
• Whether the remaining disputed heads of future damage (caregiving, physiotherapy, occupational therapy, wheelchair/transporter, case management and trust costs) should be awarded as lump-sum damages.

The appeal succeeds with costs, including the costs of two counsel. The High Court's order is set aside and replaced with a detailed lump-sum damages order for future medical and care expenses. The matter is remitted to the High Court to determine the quantum of the plaintiff's claim in accordance with the substituted order; to make an order creating a trust for the sole benefit of the child; and to make an order as to the costs of the remitted issues.

1. The common law once-and-for-all rule and the principle that damages for future loss must sound in money are foundational to the South African law of damages, ensuring finality, certainty, and judicial efficiency; they should not be abolished or radically restructured by a court in a single case. 2. A purported 'development' of the common law that replaces lump-sum damages with ongoing, in-kind public healthcare and periodic-payment obligations constitutes structural reform engaging policy, fiscal, and social considerations that fall within the legislature's domain under the principle of separation of powers. 3. Where the State cannot demonstrate secure, continuous, and institutionally reliable capacity to provide lifelong medical care, open-ended in-kind remedies are inappropriate because they shift the risk of systemic failure from the wrongdoer to the injured claimant and fail to provide effective, enforceable relief. 4. Fundamental changes to the law of damages must be made by the legislature, not the judiciary.

The Court observed, without finally deciding the point, that the High Court's order would prima facie result in unconstitutional differentiation between victims of medical negligence in public versus private hospitals, implicating the right to equality (s 9(1)) and dignity (s 10) of the Constitution. The Court acknowledged that the delay in handing down the judgment was inconsistent with the constitutional imperative that a child's best interests are of paramount importance (s 28(2)). The Court further commented that legal practitioners' fees deducted from lump-sum awards are a matter for professional regulation under the Contingency Fees Act and the Legal Practice Council, and do not constitute a valid justification for judicial alteration of the law of damages.

The judgment reaffirms the once-and-for-all rule and the lump-sum principle as cornerstones of South African damages law. It underscores that radical reform of the law of damages—especially the introduction of in-kind or periodic-payment remedies against the State in medical negligence cases—engages separation-of-powers considerations and must be effected by Parliament within a uniform national framework. The decision establishes that courts should not assume the role of long-term administrators of public healthcare or impose open-ended obligations that the State cannot guarantee, particularly where public health systems face chronic fiscal and operational crises. It also provides guidance on the assessment of damages in catastrophic injury (cerebral palsy) claims and the use of trusts to protect awards.