In June 2025, the Supreme Court of Appeal has ruled that a child in a persistent unconscious state, who is unaware of pain or loss of amenities of life, is not entitled to an award of general damages. This decision provides important clarity on how South African courts should approach claims for non-pecuniary damages in cases involving severely brain-injured, unconscious claimants.
The SCA overturned a High Court order that awarded R2.2 million in general damages to a child with severe cerebral palsy and profound intellectual disability, caused by medical negligence at birth. Because the child is in a persistent vegetative state and is unaware of his pain or loss, no general damages were awarded.
The child, born in 2015, suffered brain injuries during birth, resulting in spastic quadriplegic cerebral palsy, cortical blindness, hearing impairment, intellectual disability, and intractable epilepsy. He is entirely dependent on others for all activities of daily living and is not expected to live beyond 20 years. The Gauteng MEC for Health conceded liability for the injuries, and the only issue on appeal was whether the child was entitled to general damages for pain, suffering, and loss of amenities of life.
The SCA delivered two judgments, each offering a different approach to the question of general damages for unconscious claimants. The majority found that the child is in a persistent vegetative state, with no awareness of his condition, pain, or loss of amenities of life. The majority reasoned that general damages for pain and suffering require some level of awareness. Where a claimant is entirely unconscious and unaware, there is no basis for such an award. It was further explained that the purpose of general damages is to provide consolation or compensation for loss experienced by the claimant. If the claimant cannot experience or benefit from the award, it serves no compensatory purpose. The majority decision preferred a “functional approach”, holding that damages should only be awarded if they serve a useful purpose for the claimant. Since the child’s physical needs were already met by special damages (for medical and care expenses), there was no justification for an additional award.
In the minority decision two judges would have upheld the award.
This judgment provides clear guidance that, in South African law, having regard to the purpose of these damages, general damages for pain, suffering, and loss of amenities of life are not available to claimants who are entirely unconscious and unaware of their condition. The SCA has aligned itself with the view that compensation must serve a real, personal benefit to the claimant.
The decision also highlights the importance of careful factual assessment in each case. Where there is evidence of some material awareness by the patient, even if limited, general damages may still be appropriate. However, in cases of complete unconsciousness, no such award will be made.
The SCA’s ruling marks a significant development in the law of damages for severely brain-injured claimants. It confirms that awareness is a necessary condition for an award of general damages, and that the courts will not make such awards where they serve no compensatory nor consolation function for the claimant.