Authored by Boitumelo Phillips and Matthew du Preez.
In this matter the High Court found that applying a high awareness threshold for general damages for cases involving severely brain-injured minors is the correct approach. The plaintiff acted on behalf of a child born in 2013 who suffered devastating neurological injuries due to the hospital staff’s negligence during birth. The court concluded that the child’s functional reality placed him squarely within the vegetative‑state category and no general damages were awarded.
When evidence indicates that a child is in an entirely unconscious or perpetual vegetative state, the court held that no component of general damages is available, not for pain and suffering, nor for loss of amenities of life, nor any related non‑pecuniary head. An award for general damages serves a distinct purpose which is to provide an injured party with solatium which is a legal form of compensation or “comfort” when they have endured pain and suffering and subsequently consequently cannot enjoy their life to its full potential. A child who cannot comprehend said pain or loss cannot be awarded general damages. This judgment further underscores the principle that compensation must be meaningful, not just symbolic and that even in heartbreaking cases, courts remain bound by precedent and the logic of legal consistency.
The court questioned if the child was sufficiently conscious or aware to justify an award of general damages? The child’s grandfather painted a picture of limited but observable awareness: laughing at Mr Bean, recognising family members, reacting to hunger, and becoming upset when routines changed. However, the joint expert minutes told a harsher story. The child suffers from dystonic cerebral palsy, profound global developmental delay, no speech or language function, inability to sit without support, incontinence, and hearing impairment among other things.
An analysis by the court was done to determine whether this was a “twilight case” in which case the child had limited awareness or was it a case where the child was in a persistent vegetative state. This was necessary because general damages are compensatory and must serve some meaningful personal benefit to the injured person. An award must have a purpose, not merely symbolic value. So, the question became: Can this child, despite moments of responsiveness, appreciate or meaningfully benefit from a general damages award? Although the child showed sporadic reactions, he had no cognitive appreciation of his surroundings in a way that general damages could meaningfully address. The court therefore held that awarding general damages would serve no useful purpose and dismissed that portion of the claim. However, the child still received R6.45 million in special damages, covering loss of earnings, mobility needs, architectural adaptations, and funds protection.
This ruling indicates that severely brain‑injured minors will not automatically receive general damages. The core test is functional awareness and not simply physical injury or diagnostic labels. When evidence indicates that a child is in an entirely unconscious or perpetual vegetative state, the court held that no component of general damages is available, not for pain and suffering, nor for loss of amenities of life, nor any related non‑pecuniary head. An award for general damages serves a distinct purpose which is to provide an injured party with solatium which is a legal form of compensation or “comfort” when they have endured pain and suffering and subsequently consequently cannot enjoy their life to its full potential. A child who cannot comprehend said pain or loss cannot be awarded general damages. This judgment further underscores the principle that compensation must be meaningful, not just symbolic and that even in heartbreaking cases, courts remain bound by precedent and the logic of legal consistency.
Du Preez NO obo S.D v MEC for Health (1631/2017) [2026] ZAECMKHC 12 (5 February 2026)