In a groundbreaking judgment regarding general damages to be paid by the health authorities as compensation for an “unconscious claimant”, the Supreme Court of Appeal ruled that such a claimant is not entitled to any award for pain and suffering.
This ruling was made in a case where a mother whose child was born with cerebral palsy was awarded R2.2 million in general on behalf of her child. The child suffered a severe brain injury at birth due to the negligence of doctors at a Gauteng hospital. The child, represented by his mother, was awarded R13.3 million for special damages. This is to make his life a bit easier by acquiring special aids and devices to cope with his needs.
In addition, the Gauteng High Court earlier awarded the child R2.2 million in his own capacity for general damages. The Gauteng MEC appealed against the award of general damages on the basis that the child is in a vegetative state, and therefore, was not entitled to general damages. In a split decision, three judges ruled in favour of the MEC, while two judges found that the child is entitled to general damages.
In the majority judgment, penned by Judge Tati Makgoka, it was ruled that an award for loss of amenities of life can only be made to the extent it can serve some function for the personal and exclusive benefit of the claimant (the child in this case). This, he said, is particularly so where an award for special damages (the R13.3 million already awarded) adequately provides the means and facilities to make the unconscious claimant’s life “less miserable”.
Judge Makgoka said unless there is some indication that additional sums in the form of general damages can be used for the exclusive use of the claimant (child in this case), there is no juridical basis for awarding such amounts in the form of general damages for loss of amenities of life.
“In the present case, adequate provision has been made for the child’s physical needs by an award of special damages. There was no evidence as to what the additional amounts, over and above those provided for by special damages, would be used for,” he said. He added that awarding additional amounts for loss of amenities of life to the “unconscious child” would serve no purpose other than benefiting the child’s mother.
The minority judgment, written by Judge Anna Kgoele, to which Judge Elizabeth Baartman concurred, concluded that the child is not in an unconscious, vegetative state. After analysing the expert reports, they concluded that although he had limited insight into his condition, the child had “twilight moments.” For that reason, he was entitled to general damages, they said.
Judge Kgoele concluded that even if the child is in an unconscious, vegetative state, she would still have concluded that the child is entitled to general damages. She reasoned that the child cannot be equated to a dead person. She further reasoned that there can be no objection if the award to an unconscious claimant, who meanwhile dies, accrues to their relatives. Both she and Judge Baartman found that the payment of R2.2 million for general damages to the child was thus reasonable.
