Groundbreaking ruling on general damages for unconscious claimants in SA

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.

- ZELDA VENTER

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 R13.3m 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 R2.2m 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.