Have you sustained injuries whilst under the care of a medical facility? Or has your medical condition worsened?
You might be eligible for appropriate compensation. But before embarking on the process, it is important to take careful note of the available remedies – where applicable, the following damages may be claimed by the victims:
- Special damages (pecuniary loss): these damages pertain to financial loss suffered i.e medical expenses, loss of income etc.
- General damages (non-pecuniary loss): these damages pertain to non-financial loss suffered i.e pain and suffering, loss of amenities of life etc.
In this article, we discuss the legal position for unconscious victim’s eligibility to claim general damages, in light of the recent case law.
In The MEC for Health, Gauteng Provincial Government v. AAS obo CMMS, the Supreme Court of Appeal of South Africa had to determine whether the child who was unaware of loss is eligible to claim general damages.
In that matter, a child (‘’the claimant’’) sustained neurological injuries during labor at Tshwane District and Steve Biko Academic hospitals. The claimant was born on 18 October 2015 and was diagnosed with cerebral palsy.
Consequently, the claimant represented by his mother, instituted legal proceedings against the MEC for Health, Gauteng Province (‘’the MEC’’) for damages. The MEC conceded full liability for the claimant’s proven or agreed damages. The parties did not agree to the amount of damages and the issue had to be argued by the parties for determination by the court. After considering submission by the parties and the expert reports filed, the High Court ordered the MEC to pay R15 530 576, including an amount of R2 200 000.00 for general damages.
Dissatisfied by the amount awarded by the High Court in respect of general damages, the MEC appealed the decision to the Supreme Court of Appeal of South Africa (the SCA) for determination of the amount to be awarded in respect of general damages.
The SCA, finding in favour of the MEC, held as follows:
- The infants lack intellectual appreciation of their suffering and the claimant in this matter has the intellectual capacity similar to that of infants. He is therefore in an unconscious state;
- Where there is unconsciousness, there is no awareness of pain. Based on the findings that the child is unconscious, he is not entitled to compensation for pain and suffering. There is no basis to award general damages for loss of amenities of life if such damages will not be employed for the exclusive use of the claimant; and in the present matter, there was no indication of how such an award would benefit the claimant. As a result, an amount for general damages was not awarded.
The SCA also went on to consider the interrelationship between general damages and special damages. The SCA found that the amount awarded for special damages are relevant in this regard and the High Court erred by failing to consider the substantial amount which has already been awarded for special damages. The SCA thus held that the existing award for special damages adequately makes provision for the child’s physical needs in the present case and there was no basis for making an award for general damages.
Consequently, the Court upheld the appeal and the general damages portion of the claim was disallowed.
This judgment underscores the need to assess the specific loss, and/or injuries sustained against the recognized remedies as mentioned above, to ascertain the total damages claimable. It is accordingly crucial that victims seek tailored legal assistance for recovery of medical negligence damages.
Written by:
Mawande Delani | Associate
DKVG Attorneys | Claremont
Tel: +27 21 683 3553