The Supreme Court of Appeal last week made a ground-breaking judgment regarding general damages to be paid by health authorities to an “unconscious claimant”, ruling that the person is not entitled to any award for pain and suffering.
The case involved a mother who was awarded R2.2m in general on behalf of her child who suffered a severe brain injury at birth due to negligence at a Gauteng hospital. The child, represented by his mother, was awarded R13.3m for special damages to make his life easier through the acquisition of special aids and devices to cope with his needs.
In addition, reports The Star, the Gauteng High Court earlier awarded the child R2.2m in his own capacity for general damages.
However, the Gauteng MEC appealed against the award of general damages on the basis that the child is in a vegetative state, and therefore, 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 R13.3m already awarded) adequately provides the means and facilities to make the unconscious claimant’s life “less miserable”.
He added that unless there is some indication that additional sums in the form of general damages can be used for the exclusive use of the claimant, there is no juridical basis for awarding such amounts for general damages for loss of amenities of life.
“Adequate provision has been made for the child’s physical needs by the special damages award, and there was no evidence what the additional amounts…would be used for,” he said.
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, he has “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, he is entitled to general damages, and that he cannot be equated to a dead person.
She added 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 R2.2m for general damages to the child was thus reasonable.
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