THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 401/2023
In the matter between:
THE MEC FOR HEALTH, GAUTENG
PROVINCIAL GOVERNMENT APPELLANT
and
A A S obo C M M S RESPONDENT
Neutral citation: MEC for Health, Gauteng Provincial Government v AAS obo
CMMS (401/2023 ) [2025] ZASCA 91 (20 June 2025)
Coram: MAKGOKA, GOOSEN and KGOELE JJA and DAWOOD and
BAARTMAN AJJA
Heard: 23 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The time and date for hand -down is deemed to be
11h00 on 20 June 2025.
Summary: Delictual law – general dam ages – unconscious child claimant –
whether entitled to general damages for pain and suffering and amenities of life.

2


ORDER


On appeal from: Gauteng Division of the High Court, Pretoria (NN Bam J sitting
as court of first instance):
1 The appeal succeeds with costs, including the costs of two counsel.
2 The order of the high court is amended by deleting the order awarding general
damages for R2 200 000 and replacing it with the following:
‘There is no award for general damages’.



JUDGMENT


Kgoele JA (Baartman AJA concurring ):

[1] The appeal concerns a determination of general damages for a minor child
with cerebral palsy. It arises from an order granted by the Gauteng Division of the
High Court, Pretoria (the high court) on 12 October 2022 , wherein the appellant , the
MEC for Health, Gauteng Province (the MEC) , was ordered to pay an amount of
R15 530 5 76. The order included a n amount of R2 200 000 for general
damages (non-pecuniary ) for the minor child . With leave of the high court, the appeal
is directed against the award of general damages only.

[2] The factual context of this appeal is as follows: CMMS (the respondent), the
biological mother of AAS (the minor child), initiated legal action in both her
personal and representative capacity against the MEC for damages. These damages
3
arise from the neurological injuries the minor child sustained during labor and
delivery at Tshwane District and Steve Biko Academic hospitals. The child was born
on 18 October 2015 and has since been diagnosed with cerebral palsy, which is
further complic ated by cortical visual and hearing impairments, intellectual
disability, intractable uncontrolled epilepsy, and chronic left hip dislocation.
Consequently, he is unable to sit, crawl, or walk independently, nor can he speak.
His estimated life expectancy is approximately 18 to 20 years.

[3] On 27 January 2 020, the MEC conceded liability in full for the respondent’ s
agreed or proven damages. As a result , only the quantum of damages for the minor
child was determined before the high court.

[4] Two issues were submitted for consideration by the high court. The first
concerns the contingency percentages to be applied with respect to the loss of
earnings and future medical expenses. The second concerns the amount for general
damages. The determinat ion made by the high court regarding the rate of the
percentage to be deducted for contingencies is not an issue in this appeal. Nothing
further will be said about it.

[5] The high court trial proceeded without oral testimony. The parties requested
the high court to determine the general damages issue based on the rep orts from
specific experts, supported by confirmatory affidavits, in line with r ule 38(2) of the
Uniform Rules of Court, along with their submissions. A key point in this appeal is
that the parties requested the high court to accept the experts’ reports as admissible
hearsay e vidence, by consent, in accordance with s 3 of the Law of Evidence
4
Amendment Act, No. 45 of 1988 .1 Thus, the need to call or cross -examine these
experts was dispensed with.

[6] The respondent argued for an amount of R2 400 000, while the MEC proposed
R500 000. The high court found that the minor child experiences ‘twilight moments’
and although he may not fully appreciate his suffering, he is not in a state of
unconscious suffering ; he endures constant pain and will require various
interventions throughout his life; and his loss of amenities is devastating.
Consequently, the high court dismissed the MEC's arguments and awarded R2 200
000 for general damages. The MEC, dissatisf ied with the outcome, is appealing this
decision.

[7] Similarly, two issues arise for consideration in this appeal: a factual one and
a legal one. The factual question is whether the minor child, given the facts of this
matter, is unaware of his loss of amenities of life, pain and suffering, meaning he is
in a ‘vegetative state’, or if he sometimes experiences a ‘twilight moment’, as the
high court found. The legal question was described by the par ties as ‘ the thought
process that should be followed by a court in exercising its discretion in awarding
non-pecuniary damages in all those cases where the plaintiff is unaware of his loss
of amenities of life and/or his pain and suffering. ’ Put differentl y, whether awareness
is a sine qua non for non -pecuniary damages. In my view, the legal question arises
only if the factual question is answered in the affirmative.



1 Section 3(1) (a) of the Law of Evidence Amendment Act, No. 45 of 1988 provides: ‘ Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil
proceedings, unless -
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such
proceedings.’
5
The factual issue
[8] The MEC’s main argument regarding the first question is that the minor child
is in a ‘vegetative state ’ because he does not show any meaningful responses, such
as following an object with his eyes or responding to voices. He also shows no signs
of experiencing emotions. He has a realistic chance of not reaching the age of 19 and
can only respond, to some ex tent, to pain and discomfort. The contention is that the
high court erred in finding that the minor child, as a fact, ha s twilight moments and/or
is not unconscious .

[9] The MEC relied on the following opinion s of experts for its contention that
the minor child is in a ‘vegetative state ’:
9.1 Dr J Prins , an Orthopaedic S urgeon amongst others , stated the following:
‘It is impossible to know if he is aware of pain resulting from the chronically dislocated hips
. . .’
9.2 Dr Karen Levin , a Speech Therapist and Audiologis t, opined : the minor child
does not have the skills to be able to communicate; he is extremely physically
impaired to such an extent that he has exceptionall y little means of communication ;
most of the time, accord ing to his mother, he is silent; h e does not understand
anything that is said to him and cannot express himself in word s except to cry to
indicate that he is in pain; and does not make any conn ection with anybody nor seem
to recognise his mother.

9.3 Ms Christel Botes , a Physiotherapist, stated under the heading ‘Behaviour and
Emotions’ that ‘[h]e has a stoic demeanour and does not smile or cry ’. Further , that
‘[h]e does not respond socially and/or emotionally ’.

6
9.4 Ms Anneke Greef (Ms Greef) , an O ccupational Ther apist , opined amongst
others that his mother indicated that his severe presentation of lethargia prevents him
from communicating; he doesn't even cr y when he is given an injection .

9.5 Dr Marina Van der Ryst (Dr Van der Ryst) , an Educational Psychologist in
her report stated th at his mother indicated that he is unable to speak and to
commun icate with others; he does not make eye contact, while his head hangs to the
one side; h e does not interact with her and didn't interact with the personn el on the
day of the assessment; h is mother indicated that most of his time is spent sleeping
which was also the case on the day of assessment . Further, the minor child suffers
from cortical blindness and he was unable to track or follow an object with his eyes;
he was lethargic and slept for most of the interview; he does not intera ct, smile, or
make eye contact; and does not respond when musical instruments were
demonstrated e.g rattle, jingle bells, or a shaker.

[10] The MEC also relied on three cases to support the above argument .2 Based on
the facts presented in these cases, the submission was that a person should be
considered to be in a ‘vegetative state’ when awake but showing no signs of
awareness. They may open their eyes, wake up, and fall asleep at regular intervals,
exhibiting basic reflexes. Additionally, they can regulate their heartbeat an d
breathing without assistance. A person in a ‘vegetative state’ does not display any
meaningful responses, such as following an object with their eyes or responding to
voices, nor do they show any signs of experiencing emotions. Several authorities in
our law refer to this condition as the ‘cabbage’ or ‘persistent vegetative state’ with
reference to Clarke v Hurs t (Clarke) .3

2 Gerke No v Parity Insurance Co Ltd 1996 (3) SA 484 (WLD ); Reyneke v Mutual & Federal Insurance Co Ltd 1991
(3) SA 412 (WLD ) and Collins v Administrator, Cape 1995(4) SA 73 (C). (Collins)
3 Clarke v Hurst 1992 (4) SA 630 (D) 640D -F.
7
[11] It is common cause that the MEC primarily relies on expert evidence to
support the above proposition. In the law of evidence, “opinion” means any
reference from observed facts, and the law on the subject is derived from the general
rule that witnesses must speak only to that which was directly observed by t hem. An
expert’s opinion represents his reasoned conclusion based on certain facts or data,
which are common cause, or established by his own evidence or that of some other
competent witness. Except possibly where it is uncontroverted, an expert’s bold
statement of his opinion is not of real substance.4

[12] The cogency of an expert opinion depends on its consistency with proven facts
and on the reasoning by which the conclusion is reached .5 In general, it is important
to bear in mind that it is ultimately the task of the court to determine the probative
value of the expert evidence placed before it and make its own findings with regard
to the issues raised .6

[13] The most recent judgment of this Court relevant to this question , although not
on all fours with the facts of this matter , is NK v MEC for Health, Gauten g7 (NK
obo ZK) , wherein Willis JA stated the following:
‘In Marine & Trade Insurance Co Ltd v Katz NO , Trollip JA pointed out that, in awards arising
from brain injuries, although a person may not have “full insight into her dire plight and full
appreciation of her grievous loss ”, there may be a “twilight ” situation in which she is not a so -
called “cabbage ” and accordingly an award for general damages would be appropriate. This case
has been followed in numerous instances. ZK’s awareness of his suffering, albeit diminished by
his reduced mental faculties , puts him in this “twilight ” situation. During the course of argument
this became common cause. This confirms that he is entitled to an award for general damages and

4 Ruto Flour Mills (Pty) Ltd v Adelson (1) 1958 (4) SA 235 (T) at 235E -G.
5 MEC for Health and Social Development, Gauteng v TM obo MM (380/2019) [2021] ZASCA 110 (10 August 2021) .
6 Van Wyk v Lewis 1924 AD 438 at 447. See also Member of the Executive Council for Health, Eastern Cape v ZM
obo LM (576/2019) [2020] ZASCA 169 (14 December 2020) para 11.
7 NK v Member of the Executive Council for Health of the Gauteng Provincial Government [2018] ZASCA 13 ; 2018
(4) SA 454 (SCA) para 7.
8
that all that remains to be determined, under this head, is how much would be suitable in all the
circumstances. ’ (Citations omitted .) [emphasis added]

[14] A ‘vegetative state ’ was described by Thirion J in Clarke as ‘…a neurological
condition where the subject retains the capacity to maintain the vegetative part of
neurological function but has no cognitive function. In such a state, the body is
functioning entirely in terms of its internal controls. It maintains digestive activity,
the reflex activity of muscles and nerves for low-level and primitive conditioned
responses to stimuli, blood circulation, respiration , and certain other biological
functions, but there is no behavio ural evidence of either self -awareness or awareness
of the surroundings in a learned manner …’ [emphasis added]

[15] The submissions made by the MEC lack merit on several grounds. Firstly, it
should be noted that no report was presented before the high court that ca tegorically
expressed an opinion regarding the minor child being in a ‘vegetative state ’. The
high court assessed the expert reports submitted to it by consent, including the
arguments presented. Upon finding that the fact that the minor child experiences
pain was common cause, it concluded that he was not in a ‘vegetative state ’. This
much is stated by the high court in its judgment.

[16] Secondly, as far as the issue of experiencing pain is concerned, several expert
reports support the high court’ s findings. Ironically, the MEC quoted and relied upon
these reports in its head of arguments. Regarding pain and hunger, Dr. Levin’s report
states that he can cry to indicate he is in pain, a fact also mentioned by Dr. Van der
Ryst in his report. He noted that the minor child moans to suggest to his mother that
he is in pain or hungry. The physiotherapist, M s Mkanzi, also referenced a report
from the mother indicating that he often cries when he is in pain. She noted further
that ‘[h]ip dislocation is associated with severe pain’ . The report of Dr. Prins, relied
9
upon by the MEC, does not support the MEC's case either, as it remains neutral and
inconclusive regarding the issue of experiencing pain from a chronically dislocated
hip.

[17] Of cardinal importance is that there is a common thread that runs through the
conclusions of all the experts’ reports as far as the issue of whether the minor child
experiences pain and his mode of communication (i .e, crying , moaning ) is
concerned , that, they are based on hearsay , as they all gathered this information from
the mother . These reports , having been admitted by consent as admissible hearsay,
remain evidential material that the court must assess . In my view, a section of Dr
Prins ’ report wherein he asserts that the minor child did not experience pain as such,
without providing a foundation for his opinion, cannot gainsay the mother’s report
to the various specialists. The mother, as the sole caregiver for the past seven years,
remains a competent witness, and her reports to the various experts of what she
observed in these years cannot be overlooked. Furthermore, whilst on this point, it
is significant to point out that, as far as awareness of pain, he indicated in his report
that ‘it is impossible to know if he is aware of pain due to the chroni cally dislocated
hips.’ His report is therefore inconclusive regarding awareness of pain as well .
Moreover, no other expert has attempted to express any opinion regarding this aspect
of awareness of pain.

[18] Thirdly , the opinions relied upon by the MEC do not fully support the
submission that the minor child shows no meaningful responses. Dr. Levin, whose
opinion the MEC cites, stated that the child has ‘little means of communication, ’
indicating a limited or restricted ability. Ms Greef noted that the mother reported
that the child sometimes turns his head toward her while awake. Dr van der Ryst
mentioned that ‘ [the minor ] seems to be aware of his mother’s voice, but does not
10
turn toward her when she speaks.’ It’s crucial to remember that Dr van der Ryst’ s
report mentions the child’s moaning, which, along with crying, is a form of
communicative behaviour . People with impaired speech and hearing often
communicate through non-verbal means.

[19] In addition to the above, it is common cause that the minor child presents,
inter alia , with spastic quadriplegic cerebral palsy and cortical blindness. As such,
the minor child cannot be expected to see objects or follow instructions with his
eyes. His speech and hearin g are also impaired due to the brain damage. The fact
that ‘[he] has no word usage’ cannot , on its own, justify the conclusion that he is
incapable of communicating entirely. In addition, the mere fact that the minor child
cannot give expression to his state of consciousness because of his mental
retardation , which reduced his intellectual capa bilities and as such, are equated to
those of a 3 -month -old baby, is no evidence that he does not feel or is unaware of
his pain. After all, t he MEC also made a concession in its heads of argument that
there is a level of awareness when they submitted that ‘the high court should have
awarded an amount of R500 000 as opposed to R2 200 000 mindful of the fact
that… …he reacted to basic stimuli from time to time, such as discomfort and pain’.

[20] The upshot of these observations contradicts the MEC's assertion that the child
is in a ‘vegetative state’. Furthermore, the facts in Collins are not on all fours with
this matter . In Collins amongst others , unlike in our matter, the minor child
continued to be ventilated with a tracheostomy tube, and Scott J described her
condition as ‘in every respect a cabbage case. ’ In our mater, o verall, the minor child
experiences and has at least some awareness of pain , hunger and the voice of his
mother, which in my view, exhibits awareness consistent with the ‘twilight’ situation
as described in the NK obo ZK judgment, where a person does not have full insight
11
into their dire plight and full appreciation of their grievous loss due to brain injury.
In contrast, a ‘vegetative’ state is characterized by a complete lack of awareness and
responsiveness. Thus, the difference between a twilight state and a vegetative state
lies in the level of consciousness and awareness. The fact that the minor ch ild can’t
express his awareness of the pain in a learned manner due to his diminished state of
intellect which is likened to that of a child aged 0 -3 months old, does not nece ssarily
mean he has ‘no awareness of pain’.

[21] To conclude on this issue , it is crucial to emphasi se that the high court had to
holistically evaluate the experts’ remarks, views, and conclusions in their reports,
including the reports from the mother, which were duly noted in those reports .
Though technically the experts' repo rts were mainly based on hearsay, both part ies
agreed to their admissibility. Once admitted as such, they form part of the evidential
material the high court must evaluate and make a finding from . This is the reason
why the parties labeled this as ‘a factual issue ’ in their appeal to this Court. It is trite
that f actual findings reside within the realm of the trial court and can only be
overturned by an appellate court under exceptional circumstances.

[22] In my view, the high court’s evaluation of the experts' opinions, views, and/or
remarks in their report cannot be fault ed. In this appeal, it cannot be said that the
high court arrived at a completely wrong conclusion. The MEC could not identify
any demonstrable irregularity except to present its ostensible summation or
interpretation of the views expressed in the experts’ reports. Without a conclusive or
explicit opinion in any of the experts’ reports stating that the child is in a ‘vegetative
state’, it casts the interpretative net far too wide to conclude that a child who moans
when he is hungry, experienc es some form of pain or discomfort, and seems to be
aware of his mother’s voice – although he cannot positively respond to it due to his
12
restricted mental and communicati on ability – is in a ‘vegetative state’ or completely
unconscious, and thus lacks intellectual appreciation of his suffering, let alone be
likened to a dead person.

The legal issue
[23] Regarding the amount of damages to be awarded, the MEC advanced two
grounds for the argument that the high court erred in awarding an amount of R2 200
000 for general damages . The first ground was that the high court ’s approach when
assessing general damages was flawed , including the facts taken in to account in
arriving at its conclusion. The second ground relates to the discretion a court has in
awarding damages. Several arguments were advanced to support the first ground
relating to the approach and were based on the decis ion of Collins v Administrator,
Cape8 (Collins ), which held that awareness is a sine qua non for an award of general
damages. First, t he argument posited was that the minor child was not entitled to
receive any award for general damages . The submission s made were that it is
accepted in our law that an award is not a punishment to the wrongdoer; that a minor
child who is in a ‘vegetative state ’ is akin to a dead person; and that the award will
serve no purpose. I will return to this argument later in the judgment.

[24] The other argument put forth by the MEC regarding the high court’s approach
is that this Court has not definitively determined the legal framework for calculating
damages for a child in a ‘vegetative state ’. The MEC formulated this as a legal
question i nvolving the thought process a court must adopt in exercising its discretion
in awardi ng general damages. According to the MEC, this issue needs to be resolved
by this C ourt due to conflicting rulings in the high courts. In addition to the decision
in Collins, the MEC advance d two conflicting decisions that rejected the Collins

8 Collins v Administrator, Cape 1995 (4) SA 73 (C)
13
approach to substantiate its submission . These are Reyneke v Mutual & Federal
Insurance Co. Ltd , 9 and Gerke NO v Parity Insurance Co Ltd .10 The MEC urged
this Court to follow Collins’ decision.

[25] As a result of the conclusion I reached above regarding the state of the minor
child’s awareness, the need to analyse the approach in the three conflicting decisions
fell away . The other reason is that a significant portion of the second judgment
examined these decisions , the history of cas es before and after them, and the foreign
law when it arrived at a different conclusion that because of a finding of
unconsciousness, the minor child is unaware of his pain and suffering because of
mental retardation, and for the fact that he has the intellectual capacity of a
0 – 3 month infant; his condition is considered a ‘persistent vegetative state’ in
clinical terms .

[26] Similarly, the conclusion that the minor child is not in a ‘vegetative state’
effectively addressed this argument concerning the conflicting decisions relied upon
by the MEC, along with the one related thereto of the proper approach and the facts
considered by the high court in assessing general damages. As a result, I cannot take
a definitive stance on whether the approach in Collins should be adopted or not ,
since its decision is irrelevant if the child is not in a vegetative state. I am thus
constrained to state that whether Collins is a sound precedent that has withstood
academic scrutiny and remains a guiding reference for this Cou rt in addressing
general damages, as the MEC argued, is highly questionable in the constitutional
era. It’s worth repeating that, in contrast to Collins where the experts agreed that the
child is completely unconscious or is in a permanent vegetative state, our case, has

9 Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 412 (W).
10 Gerke NO v Parity Co Ltd 1966 (3) SA 484 (W.)
14
no absolute or definitive certainty in the experts’ reports that the minor child was in
a vegetative state , or that he was completely unaw are of pain and suffering. Some
recent decisions from various divisions have supported the flexible approach taken
in NK obo ZK and awarded general damages in si tuations similar to this matter.
Additionally, t here is also an academic opinion that critic ised the decision in
Collins.11

[27] The MEC added a further argumen t against awarding any general damages to
the minor child . The submission made was that an undertaking from the MEC has
secured future medical expenses , and the award of general damages would lead to
duplication. This argument too, need not detain us because this C ourt in NK obo ZK
dismissed similar arguments, stating:
‘Compensation for pain and suffering – to the extent that one can ever “compensate” for it – is neither a
duplicat ion of the amount awarded for past and future medic al and hospital expenses, nor for loss of
amenities of life. The court a quo was clearly wrong in regard to the “duplication” issue . . .’12

[28] I now re turn to the first argument presented by the MEC against awarding any
general damages to the minor child , which , as mentioned in para 23, was that the
award would serve no purpose because the minor child’s condition is similar to that
of a deceased person, and he would receive no benefit from it. The MEC relied on
the reasoning and findings in Collins for this proposition and further presented that
the award is not punitive, but compensatory. The second judgment accepted th is
argument in its approach to not awarding any damages , as it similarly held that:

11 Matlakala v MEC for health, Gauteng Provincial Government (11/11642) [2015] ZAGPJHC 223 (2 October 2015);
T.L obo K.R.L v MEC for health, North West Province (1273/2017) [2021] ZANWHC 33 (25 June 2021); Madela v
MEC for health, Kwazulu -Natal (3079/2015) [2021] ZAKZDHC 18 (30 April 2021); S obo S v MEC for health
(27452/2009)[2015] ZAGPPHC 605(12 August 2015); AD and Another v MEC for Health (27428/10) [2016]
ZAWCHC. B P Wanda ‘Problems arising in compensating unconscious plaintiffs for loss of amenities of life: a
comparative survey’ (2005) 38 CILSA 113 - 142.
12 NK obo ZK para 13
15
‘And in truth, insofar as damages for an unconscious person are concerned, there is not much
difference between such a person and a dead one. Both are: (a) unaware of their conditions; and
(b) not capable of enjoying the money awarded to them as damages.’
Furthermore , the award :
‘[W] ould likely accumulate interest in a trust fund, and upon the claimant’s death, accrue to the
claimant’s estate, for the benefit of relatives. In this way, a largesse is poured out to the heirs of an
unconscious claimant in circumstances where they were never entitled to the ben efit. Ultimately,
the award serves a purpose for which it was never intended. ’

[29] There are several difficulties in accepting the MEC’s argument in this regard .
First, in NK obo v ZK13 where the flexible approach for determi ning general damag es
was endorsed, this Court ruled that, in assessing the amount for general damages , it
did not have to determine what the award will be used for - its purpose or function,
but the child’s loss of amenities of life and his pain and suffering . In my view, once
it is accepted that he experiences pain and that his intellectual capabilities are
diminished, his insight into his condition becomes irrelevant. Secondly, our common
law is settled that if the claimant dies after litis contestatio, the claim remains
transfer able to her estate. Its transmissibility only ceases if the claimant passes away
before litis contestatio. This means that the heirs or family ultimately benefit from
it. The likelihood that the injured party may not live long enough to benefit
significant ly from the damages awarded cannot, by itself, be a reason to deny such
an award. In our case, the claimant is still alive. The claimant has lost the ability to
participate in life’s activities and the capacity to live the life he could have otherwise
lived. His ordinary enjoyment of life has been greatly diminished.

[30] Thirdly, the argument presented by the MEC regarding the purposes and/or
circumstances under which a court may award general damages appears to be

13 Ibid para 7
16
unclear. Whether the underlying proposition indicates that the unconscious claimant
is entitled to compensation solely for amenities of life or for all three categories:
pain, suffering, and amenities of life , remains ambiguous . In their amended
application for leave to appeal that served before the high court, th e criticism is
directed at the fact that the high court ‘erred in finding that there was an awareness
of the loss of amenities of life (pain and discomfort excluded) ’ and also, ‘not finding
that the minor child was indeed in a vegetative state in th at he was unaware of his
loss of amenities of life (pain and discomfort excluded) .’ This implies that the
propo sition is not that awareness is a sine qua non to general damages as a whole
(all three) , but only to general damages for loss of amenities of life. On the same
note, a proper reading of their heads of argument and their submissions in C ourt,
including the agreement between the parties in terms of rule 8(9) of the Rules of this
Court , reveals that the lega l basis upon which the appeal was based has gravitated
from its axle. It was described therein as ‘ the thought process that should be followed
by a court in exercising its discretion in awarding non -pecuniary damages in all
those cases where the plaintiff is unaware of his loss of amenities of life and/or his
pain and suffering.

[31] In my view, this distinction , if it exists , cannot salvage the MEC’s case either.
The first difficulty is that MEC uses the two phrases interchangeably , clearly
clutching at straws. Damages for pain, suffering, and loss of amenities of life are
invariably lumped together under general damages. The fact that the high court
lumped the damages for pain, suffering , and loss of amenities of life and awarded a
single amount does not detract from the correctness of its approach when assessing
general damages, nor does it constitute an irregularity. It is sufficient to say that it is
a well -established principle that an appellate court will not seek anxiously to
discover reasons adverse to the trial judge's conclusion, as no judgment can ever be
17
perfect. It is trite law that judgments are never all -embracing, and it does not
necessarily follow that because something has not been mentioned , therefore , it has
not been considered.14

[32] What exacerbate s the difficulty is that, a s previously indicated and with the
risk of rep etition, the MEC in their heads argued for an amount of R500 00 0 as
opposed to the one determined by the high court , urging this Cou rt to have regard to
the fact that the minor child amongst other factors ‘has a chance of not reaching the
age of 19 and that he reacted to basi c stimuli from time to time, such as discomfort
and pain .’ Ostensibly , this stems from the fact that it was common cause between
the parties, as the high court found , that the minor child experiences pain. In my
view, a lack of awareness , as the MEC contends , even if limited only to amenities
of life , cannot , on the facts of this matter , disentitle the minor child to an y award of
damages , lest we trivialise the very essence of being or existence . Dr Karen Levin
stated in her report that, the minor child will continue to experience a profound loss
of enjoyment of life and communicative participation for the rest of his life due to
his ‘extremely restricted communicative participation as well as other impairments
associated with cerebral palsy, ’ The minor child in our matter has shown awareness
sufficient to warrant an award of general damages. This leads me to the argument
about the issue of the discretion exercised by the high court, whether it was
improperly exercised or not.

Discretion in awarding general damages
[33] The second ground relied upon by the MEC as indicated above, is that an
amount of R2 200 000 is excessive . The MEC submitted that R500 000 is a
reasonable amount that the high court should have awarded. The argument advanced

14 R v Dlhumayo and Another 1948(2) SA 6779(A).
18
is that the amount is so disproportionate to such an extent that this Court can infer
that the discretion accorded to the high court was not exercised properly. Therefore,
the argument continued , this Court is entitled to interfere. The MEC added that this
Court should be mindful that the minor had a realistic chance of not reaching the age
of 19.

[34] The high court exercised a discretion in the true sense when awarding
damages. As discussed by Khampepe J in Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Limited and Another :15
‘A discretion in the true sense is found where the lower court has a wide range of equally
permissible options available to it. This type of discretion has been found by this Court in many
instances , including matters of costs, damages and in the award of a remedy in terms of section 35
of the Restitution of Land Rights Act. It is ‘true’ in that the lower court has an election of which
option it will apply and any option can never be said to be wrong as each is entirely
permissi ble.’16(Citations omitted.)

[35] Where a lower court exercises a discretion in the true sense, an appellate court
should be slow to substitute its discretion for that of the lower court.17 This Court
has on numerous occasion s held that ‘ It is trite that a court awarding general damages
exercises a wide discretion that will not be lightly interfered with by a court of
appeal .’18 In my view, there is no striking disparity between the award granted by
the high court and other awards in similar circumstances, including the one this
Court considers fair. The respondent provided a comparable list of cases , which
assisted in this regard. This Court would not have awarded a different amount. I find

15 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another
[2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC).
16 Ibid para 85.
17 Birkett v James [1978] AC 297 (HL) at 317D -G, cited with approval in Bookworks above n 125 at 807A -G.
18 Road Accident Fund v Delport NO [2005] ZASCA 38; 2006 (3) SA 172 (SCA) ; [2006] 1 All SA 468 (SCA) para
22.
19
solace from this Court ’s decision of NK obo ZK , where R1 800 000 was awarded in
2018, almost four years before the high court's order.

[36] In my view, the high court's judgment is free from misdirection or
irregularities. The high court carefully considered other previous awards and
motivated its conclusion. It is significant to note that the high court prefaced the
paragraph analysing the comparable cases with the following: ‘Almost all the cases
discussed in the reasons appeared to be broadly similar to C’s case .’ In my view, the
high court did not slavishly follow previous awards.

[37] Consequently, I would have dismissed the appeal with costs, such costs to
include the costs of two counsel.





________________________
A M KGOELE
JUDGE OF AP PEAL







20
Makgoka JA (Goosen JA and Dawood AJA concurring):
[38] I have read the judgment prepared by my colleague, Kgoele JA (the first
judgment). It concludes that the child is not in an unconscious state and therefore
deserves compensation for non -pecuniary damages. I take a different view. As I see
it, because of his brain injury and mental retardation, the child is unconscious of his
loss, and will be, for the rest of his life. This conclusion leads me to an issue of
principle: whether the child’s lack of awareness of his loss is relevant in considering
non-pecuniary damages for him. This Court has yet t o pronounce itself
authoritatively on the issue. This appeal presents us with an opportunity to do so,
and to clarify some of the doctrinal and practical aspects concerning the award of
general damages.

In the high court
[39] The child suffered a severe brain injury at birth due to the negligence of the
health workers under the employment of the appellant, the MEC. Because of the
injury and its effect on her child, the respondent, as mother and natural guardian of
the child, su ed the MEC for both pecuniary and non -pecuniary damages for pain and
suffering and loss of amenities of life.

[40] The MEC conceded liability, and the high court was requested to decide
compensation for pecuniary and non -pecuniary damages for the child. The
respondent’s claims in her personal capacity were separated from those in her
representative capacity. There was no oral evidence before the high court. The court
had to determine the quantum based on medico -legal reports prepared by various
experts in res pect of the child, as well as oral submissions by the parties’ counsel.
The high court (per NN Bam J) heard counsel’s submissions on 3 -7 October 2022
and on 10 and 11 October 2022.
21
The high court’s order and subsequent reasons
[41] On 12 October 2022, the high court granted an order in terms of which the
MEC was to pay the respondent R15 530 575.28 (fifteen million five hundred and
thirty thousand, five hundred and seventy -five rand and twenty -eight cents ), together
with ancillary orders relating to interest and costs. Included in the amount ordered
by the high court was R2 200 000 (two million and two hundred thousand rand) for
non-pecuniary damages. The high court did not furnish any reasons for this order.
Subsequently, the MEC requested the reasons for the order, in particular for the
amount of R2 200 000 awarded for non -pecuniary damages. The high court
furnished its rea sons on 21 November 2022. Subsequently, it granted leave to the
MEC to appeal to this Court.

[42] In her reasons for the order, the learned Judge found that:
‘[The child] does have his twilight moments albeit he may not have the full appreciation of his
suffering. [The child] is not in state of unconscious suffering. [He] is said to be in constant pain
and is going to need various interventions throughout his l ife . . .’

[43] These findings are not clear and seem contradictory. ‘Twilight moments’ can
only be experienced by a person who is in an unconscious and vegetative state.
Therefore, the statement that the child has his twilight moments seems to suggest
that the Judge had accepted that the child was in an unconscious and vegetative state.
But immediately thereafter, the Judge said that the child ‘is not in a state of
unconscious suffering.’

[44] The confusion was compounded in the judgment granting leave to appeal. The
learned Judge considered it unlikely that another court would come to a different
conclusion on her findings. This suggests that the learned Judge did not consider the
child to be i n an unconscious and vegetative state. However, she granted leave on
22
the basis that there were conflicting judgments and ‘there is a need for a superior
court to pronounce on the matter’. There is a glaring internal contradiction in this
reasoning. If the child is not unconscious, general damages should, without more,
follo w, and the issue about conflicting judgments does not arise. It only arises in the
event of a finding that the child is unconscious, for it is only upon that finding that
the question whether compensation for pain and suffering and loss of amenities of
life arises. Nothing, however, turns on this misdirection as the MEC has been granted
leave generally, without any limitations.

In this Court
[45] In this Court, the MEC contended, in the main, that the high court should have
made no award at all in respect of general damages as the child is in an unconscious,
vegetative state, and thus: (a) does not experience pain; and (b) is unaware of his
loss of amenities of life. Alternatively, the MEC submitted that only a nominal
amount of R500 000 should have been awarded. The respondent denied that the child
is in an unconscious, vegetative state. But even if he was, the respondent contended,
that was irrelevant for determining general damages. The respondent accordingly
supported the high court’s award and sought the dismissal of the appeal.

Issues for determination
[46] Despite a lack of clarity in the high court’s findings as to whether the child is
in an unconscious state or not, I shall assume that the learned Judge meant to convey
that the child is not in an unconscious state. That is the primary question which must
be decided first. If it is answered in the negative, the further issue is whether the high
court exercised its discretion judicially in considering general damages. If the
primary question is answered in the affirmative, it must be decided whether, as an
23
unconscious claimant, the child is entitled to general damages. If so, the juridical
basis therefor.

Whether the high court properly exercised its discretion
[47] Assuming that the child is not in an unconscious state, did the high court
exercise its discretion judicially? I make observations about the high court’s
judgment on the following issues: (a) previous comparable cases; (b) the distinction
between pain and suffering, on the one hand, and loss of amenities, on the other; (c)
the interrelationship between special (pecuniary) damages and general (non -
pecuniary) damages. I consider each in turn.

Previous comparable cases
[48] The high court’s judgment contains a long quotation from an unreported
judgment of the high court, which in turn quotes at length from this Court’s judgment
in Protea Assurance v Lamb19 on the utility of awards in previous cases. The high
court then referred to four cases, which it considered comparable, and the awards for
general damages made in those cases. Thereafter, the high court concluded as
follows:
‘Almost all the cases discussed in these reasons appeared to be broadly similar with C’s case. From
the assessment of all the evidence, including [the mother’s] comments as incorporated in the
various reports, C does have his twilight moments albeit he may not have the full appreciation of
his suffering. C is not in a state of unconscious suffering. He is said to be in constant pain and is
going to need various interventions throughout his life. His devastating loss of amenities of life
cannot be gainsaid. Having reflected on the cases mentioned in these reasons, it was my considered
view that an award of R2.2 million was justified for C’s general damages.’


19 Protea Assurance Co. Ltd v Lamb 1971 (1) SA 530 (A) ( Protea Assurance ).
24
[49] Apart from previous cases, it is unclear from the high court’s judgment what
else weighed with it to arrive at R2 200 000 for general damages. Few cases are
directly comparable. For that reason, a trial court should not slavishly follow
previous awards. Th e particular facts of each case must be considered, and a trial
court should, at the very least, state the factors and circumstances it considers
important in damages assessment. It should provide a reasoned basis for arriving at
its conclusions.20 This, the high court failed to do.

[50] As repeatedly stated by this Court, past awards in comparable cases serve as
a useful guide in determination of general damages. However, the comparison
should never interfere with a court’s discretion.21 What is more, to ascertain whether
particular cases are similar in material respects, the facts, regarding the degree of
pain suffered by a claimant in each particular case and the amenities of life of which
he or she was deprived, must be known before a comparison is justified.22 The high
court did not embark on any meaningful or critical appraisal of the particular
condition of the child in the present case to determine the degree of pain, if any. As
a result, its reliance on awards in previous cases amounted to no more than a
mechanical exercise.

The distinction between pain and suffering and loss of amenities of life
[51] The high court awarded a globular amount of R2 200 000 without indicating
what was allocated to the respective components. Although pain and suffering and
loss of amenities of life are often lumped together under general damages, these are

20 Road Accident Fund v Marunga [2003] ZASCA 19; [2003] 2 All SA 148 (SCA); 2003 (5) SA 164 (SCA) para 33.
For fully reasoned awards of general damages see Saldulker J’s judgment in Megalane NO v RAF [2006] ZAGPH C
116; [2007] 3 All SA 531 (W ); 2007 JDR 0171 (W), and Rogers J’s judgment in AD & Another v MEC for Health
and Social Development, Western Cape Provincial Government [2016] ZAWCHC 116 paras 606 -619.
21 See, for example, Protea Assurance at 535H -536A.
22 Marine Trade Insurance Co. Ltd v Goliath 1968 (4) SA 329 (A) at 333H.
25
two distinct components.23 Their lumping together is not appropriate in all the
circumstances, especially where, as is the case here, it is disputed that one of the two
variants, ie, pain, is experienced.

[52] ‘Pain and suffering’ refer to: (a) the physical discomfort due to the injury itself
or its consequences, including the discomfort caused by any medical treatment
which one might have to undergo,24 and (b) the mental or emotional distress which
a person may experience because of the injury. Loss of amenities of life, on the other
hand, refers to, among others, the deprivation of the ability to do the things which
before the accident a claimant was able to enjoy, and to prevent full participation in
the normal activities of life. This may include the loss of special amenities which are
peculiar to the particular plaintiff, such as no longer bein g able to engage in pre -
morbid hobbies or interests.25 As explained in Gerke v Parity Insurance Co. Ltd
(Gerke ):26
‘Although it has been the practice in our Courts to make an award of general damages for pain and
suffering and loss of amenities, . . . I can see no reason why separate awards should not be made
for pain, suffering, etc., in the appropriate case. One can conceive of cases in which there has been
no pain but there is suffering because of the loss of an amenity or others in which there has been
pain but no loss of any amenity and so forth, and naturally appropriate awards will h ave to be made
in each case.’27


23 Rule 18(10) of the Uniform Rules of Court provides that:
‘A plaintiff suing for damages shall . . . as far as practicable state separately what amount, if any, is claimed for —
(a) medical costs and hospital and other similar expenses and how these costs and expenses are made up;
(b) pain and suffering, stating whether temporary or permanent and which injuries caused it;
(c) disability in respect of —
(i) the earning of income;
(ii) the enjoyment of amenities of life . . .’
24 See, for example, Povey v Governors of Rydal School [1970] 1 All ER 841 at 846c -d.
25 Administrator -General, South West Africa, and Others v Kriel [1988] ZASCA 21; [1988] 2 All SA 323 (A); 1988
(3) SA 275 (A) ( Kriel ) at 288F.
26 Gerke v Parity Insurance Co. Ltd 1966 (3) SA 484 (W) ( Gerke ).
27 Ibid at at 494H -495.
26
[53] A survey of our cases reveals that the distinction between the two is rarely
made, with a few exceptions far and in between.28 In Sigournay v Gillbanks
(Gillbanks ),29 this Court expressed misgivings that the trial court had not awarded
separate amounts for pain and suffering, on the one hand, and for loss of amenities
on the other, as ‘[t]he declaration lumped them together and the learned Judge did
the same’.30 Schreiner JA then gave a detailed analysis of each of ‘pain and
suffering’ and ‘loss of amenities of life’, respectively.

[54] The method of assessing general damages in separate amounts for pain and
suffering and loss of amenities of life is not only sound. It also serves, among others,
three purposes: (a) it affords a higher court on appeal to have a meaningful review
of the awa rd; (b) it affords reasonable guidance in future cases; (c) it assures the
litigants and their legal representatives that each of the various heads of damage in
the overall award, has been given thoughtful consideration.31

The interrelationship between general and special damages
[55] The high court failed to consider the interrelationship between general and
special damages. It treated medical and related expenses (special damages) and
general damages as completely discrete and individually distinct components. In this
it erred. The co rrect approach was stated by Kriegler J in Dhlamini v Government of
RSA (Dhlamini )32 as follows:
‘If I were to have assessed the damages for the non -patrimonial elements in isolation, I would have
arrived at an award considerably in excess of the figure at which I have arrived. I have grappled
with the question what, in law, logic or equity, underlies my conviction that there must be some

28 For example, Classen J made this distinction in Reyneke v Mutual and Federal Insurance Co Ltd 1991 (3) SA 412
(W), as did Rogers J in AD v MEC.
29 Sigournay v Gillbanks 1960 (2) SA 552 (A) ( Gillbanks ).
30 Ibid at 569C.
31 Andrews v Grand & Toy Alberta Ltd [1978] 2 SCR 229 CanLII 1 (SCC) at 235 -6.
32 Dhlamini was delivered on 14 June 1986 in the Witwatersrand Local Division and reported in Corbett and
Buchanan The Quantum of Damages in Bodily and Fatal Injury Cases 2 ed Volume III (1989) at 554.
27
interaction between the awards for patrimonial loss on the one hand and the award for non -
patrimonial loss, on the other. Whatever may be the rationale in principle or in other cases, it
appears to me, in this case, and on its particular facts, that I cann ot ignore the very substantial
awards made [for special damages] when I come to assess general damages for pain and suffering,
loss of amenities of life, disability and disfigurement. Those awards were considered reasonable
for the very reason that they se rved to ease the plaintiff's painful shuffle across this mortal coil.
They were intended to reduce the suffering, the loss of amenities of life and general disablement
that the plaintiff will have to live with. I cannot ignore them when assessing those ver y elements
under what is a different head of damage, but forms part of one and the same award.’33

[56] The reasoning in Dhlamini was endorsed by this Court in Administrator -
General, South West Africa v Kriel (Kriel )34 where it was held that the trial court had
materially misdirected itself in its total award of damages by: (a) disregarding the
interrelationship between the patrimonial and non -patrimonial elements in its
assessment; (b) treating medical and related expen ses and general damages as
completely discrete and individually distinct components.

[57] Rogers J also grappled with this issue in AD v MEC for Health and Social
Development, Western Cape (AD v MEC ).35 When assessing the significance of the
items which weighed with him, in arriving at general damages, he considered ‘ the
beneficial and palliative effects of the medical interventions factored into my award
for future medical expenses’.

[58] In the present case, when it awarded general damages, the high court seemed
to have disregarded that it had awarded a substantial amount (R13 330 578.28) for
special damages. It erred. Most of the cost items claimed in the respondent’s

33 Ibid at 587.
34 Administrator -General, South West Africa v Kriel 1998 (3) SA 274 (A) at 289D -E.
35 AD & Another v MEC for Health and Social Development, Western Cape Provincial Government [2016] ZAWCHC
116 (AD v MEC ) paras 606 -610.
28
particulars of claim were geared at the amelioration of the child’s suffering, eg:
paediatric tilt -in space commode shower chair; adjustable mattress and its
maintenance; pressure care mattress and its maintenance; seating system wheelchair;
base wheel cha ir; a seating system and its maintenance; occupational therapy and
assistive devices; care givers; relief caregivers, facilitators, holiday care, aftercare,
weekend care, night care and domestic assistant; speech and language therapy;
physiotherapy; behavi oural and psychotropic medication; epilepsy medication;
dental care; special transport; and architect relating to adaption of respondent’s
home.

[59] Although the high court did not specify for which items it had made provision
for in its award, it must be assumed that the R13 330 578.28 it had awarded for
special damages was considered sufficient to ameliorate the child’s suffering and
make his life less unbearable to the extent money can achieve this. The high court
awarded general damages as though the child’s condition w ould not be ameliorated
by the amount awarded for special damages. It failed to consider whether, in light of
the substantial amount it had awarded for special damages, a further substantial
amount in respect of general damages was warranted. As held in Kriel , the more
comprehensive the range of devices and services for which explicit allowance has
been made, the smaller the award for general damages should be.36 The high court
failed to heed this principle.

[60] The effect of all the above is that, even assuming that the child was not an
unconscious claimant, the high court’s exercise of its discretion in awarding general
damages was vitiated by several misapplications of the law, and influenced by wrong
principle s.37 This Court would therefore be at large to consider the issue afresh.

36 Kriel fn 34 at 289G.
37 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another
[2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 88.
29
Whether the child is in an unconscious state
[61] In claims arising from brain damage injuries, a distinction is often made
between ‘twilight’ cases and ‘cabbage’ cases.38 In the former state, some
communication with a claimant is sometimes possible. In the ‘cabbage’ state, the
claimant has no such cognitive senses.39 The latter state, also referred to as
‘persistent vegetative state’, was explained by Thirion J as follows in Clarke v Hurst
(Clarke ):40
‘The term “persistent vegetative state” seems to have been created by Dr Fred Plum, professor and
chairman of the Department of Neurology at Cornell University and a world -renowned
neurologist. It describes a neurological condition where the subject retains the capacity to
maintain the vegetative part of neur ological function but has no cognitive function. In such a state
the body is functioning entirely in terms of its internal controls. It maintains digestive activity, the
reflex activity of muscles and nerves for low level and primitive conditioned response s to stimuli,
blood circulation, respiration and certain other biological functions but there is no behavioural
evidence of either self -awareness or awareness of the surroundings in a learned manner
(see Quinlan and Conroy (supra )). Steadman’s Medical Dictionary defines “vegetative” as
functioning involuntarily or unconsciously after the assumed manner of vegetable life.’41

[62] To answer this question, it is important to refer briefly to the opinions of some
expert witnesses whose reports were placed before the high court. According to the
joint minutes of Paediatric Neurologists, Dr Keshave and Dr Mogashoa, the child
has the fol lowing diagnosis and clinical features: micro cephalic spastic quadriplegic
cerebral palsy. It is complicated by: cortical visual and hearing impairment; global
developmental delay; intellectual disability; symptomatic epilepsy; gastro -
oesophageal reflux d isease; a pseudo -bulbar palsy; multiple contractures; intractable

38 Neethling and Potgieter Law of Delict 8 ed (2021) at 294.
39 See, for example, Marine and Trade Co Ltd v Katz 1979 (4) SA 961 (A) at 983; Southern Insurance Association
Ltd v Bailey 1984 (1) SA 98 (A) at 120; NK v MEC for Health, Gauteng [2018] ZASCA 13; 2018 (4) SA 454 (SCA)
para 7.
40 Clarke v Hurst NO and Others 1992 (4) SA 630 (D).
41 Ibid at 640E -F.
30
uncontrolled epilepsy; and chronic left hip dislocation. Another Paediatric
Neurologist, Dr Reid, opined that the child’s brain injury had resulted in ‘mental
enfeeblement’.

[63] The child cannot feed himself. He is fed through a gastrostom y tube. He does
not communicate, for he has no word usage. His head appears swollen and has a
protruding tongue, and he drools a lot. He has a pectus carinatum deformity of the
chest, a bilateral spasticity and continuous spastic myoclonus. There is also evidence
of scoliosis. He is fully depen dent on others for all activities of daily living. The only
time that he does not need someone to actively care for him and nurture him is when
he sleeps. He cannot be left alone and always requires supervision. He cannot sit,
stand or walk by himself, and will never be able to do so. He uses a buggy carriage
for mobility.

[64] His ability to develop as a normal child has been hugely restricted. He will
not experience any enjoyment of life and will require full -time caregiving for the
rest of his life. The child is completely dependent on his mother for all his needs. He
cannot suck or eat by himself, is incontinent of bladder and bowel functioning and
has to be kept in a nappy at all times. As to his life expectancy, the two neurologists
who examined him agree that he would not survive beyond the age of 20 years.

[65] Dr Levin, a speech therapist, noted the following about the minor child: he is
so extremely physically impaired that he has little means of communication; he has
pseudo bulbar palsy, which is a significant neurological involvement of the control
of the mus culature required for speaking, as well as a profound intellectual
disability; he is only capable of producing some vowel -like vocalisations, generally
open vowels, and he vocalises very rarely; he has not developed the understanding
31
of symbolic language; he does not understand anything that is said to him and cannot
express himself in words; he is not able to communicate at all except to cry to
indicate that he is in pain; he does not make any connection with anybody and does
not seem to recognise his mother.

[66] Dr van der Ryst, an educational psychologist, reported that he ‘never crawled,
he cannot stand or walk, and he cannot sit independently. He is unable to speak, and
he is incontinent and still using nappies’. She further stated that the child ‘does not
unde rstand instructions, but he cries and moans if he has pain’. Furthermore, he does
not make eye contact, while his head hangs to one side. Dr van der Ryst further stated
that the child was in constant pain. She also observed that the minor child was unable
to track or follow an object with his eyes. He seems to be ‘aware of his mother’s
voice, but he does not turn towards her when she speaks to him.’ He was lethargic
and ‘frequently moaned’, which alerted his mother that he required feeding, a nappy
change, or attention. He does not interact or smile. He does not respond when
musical instruments, eg rattle, jingle bells, or a shaker, are demonstrated to him.

[67] The child needs 24 -hour constant care. His situation will never improve
because this is how he was born. He knows no life other than the one the medical
experts predict he will endure until his death. He will never appreciate the fact that
he is different from other children. In all circumstances, he is not aware of his
suffering and will never be. He depends on others for all his needs. The experts agree
that he has diminished social and emotional skills.

[68] From the above overview of the injuries suffered by the child and their
sequelae, it is evident that the child has suffered severe, permanent and irreversible
cerebral palsy, which has profoundly affected his intellectual disability with almost
non-existen t intellectual function. The high court’s finding that the child is not in an
32
unconscious state is not supported by the expert evidence. The learned Judge made
no effort to substantiate it with reference to the expert reports. The finding is also
out of kilter with those made by our courts in respect of similar claimants, as will
become clear when I discuss various cases.

[69] For all of the above reasons, I disagree with the high court’s presumed
conclusion that the child is not in an unconscious state. I also disagree with its
conclusion that even though the child might be unconscious, he has ‘twilight
moments’. It seems, with respect, that the learned Judge misconceived what is meant
by a ‘twilight moment’ in the context of damages claims. What is envisaged here is
a lucidum intervallum – a reference to a momentary improvement in a patient’s
condition after a brain injury.

[70] A good example of a claimant who experienced twilight moments is found in
Qunta NO v Bay Passenger Transport Ltd (Qunta ).42 The claimant there had
intervals of lucidity when she appreciated to a degree that she was being treated
differently from how she conducted her life, before the collision. She infrequently
realised that something was drastically wrong with her and that sh e was not enjoying
life.

[71] The same cannot be said of the child in the present case. I have, in some fairly
comprehensive detail, set out his injuries and their sequelae. Based on the expert
reports, his mental retardation would never improve, and he would never have
insight into his condition. The ‘awareness of pain’ in this context does not mean the
child does not feel the pain or hunger. Thus, whether the child cries when he is
hungry or feeling uncomfortable is irrelevant.

42 Qunta NO v Bay Passenger Transport Ltd 1973 (2A4) QOD 368 (E).
33
[72] The key consideration is the lack of intellectual appreciation of his suffering.
Babies in their infancy do not have that type of appreciation. The child in the present
case, despite being over 7 years old, has an intellectual capacity of a 3 -month -old
infant, which , according to expert reports, was unlikely to improve. He, therefore,
does not have the type of appreciation re ferred to above, and never will, until his
death. In my view, the child’s condition fits neatly into Professor Plum’s definition
of a ‘persistent vegetative state’ as referred to in Clarke , above. I therefore conclude
that the child is in an unconscious state.

Whether the child is entitled to general damages
[73] General damages comprise, among others, pain and suffering and loss of
amenities of life. It is settled that where there is unconsciousness, there is no
awareness of pain, and a claimant is not entitled to compensation for pain and
suffering.43 Based on my finding that the child is in an unconscious state, it follows
that there is no awareness of pain. He is thus not entitled to compensation for pain
and suffering as a component of general damages.44 The high court did not indicate
which portion of the award for general damages was allocated for pain and suffering.
However, it must be assumed that this was taken into consideration in the overall
award.

Compensating an unconscious claimant
[74] What remains to be determined is whether the child, as an unconscious
claimant, is entitled to be compensated at all for loss of amenities of life. This
question has divided judicial and academic opinion, both in our jurisprudence and

43 Gillbanks fn 29 at 571B; Reyneke v Mutual and Federal Insurance Co Ltd 1991 (3) SA 412 (W) (Reyneke ) at 426;
Collins v Administrator, Cape 1995 (4) SA 73 (C) (Collins ) at 92.
44 Ibid.
34
in other jurisdictions. It is indeed a difficult question, involving, as it does, a range
of considerations, including moral and economic ones.

[75] There are two schools of thought in this regard. On the one hand, there is the
‘objective’ approach, in terms of which an unconscious claimant is compensated for
the mere fact that he or she has been injured. On the other, there is a ‘functional
approach’,45 in terms of which damages for non -pecuniary loss may be justified only
to the extent that they serve a functional purpose for the claimant.

Academic opinion
[76] As mentioned, academic opinion on the compensation of an unconscious
claimant is also divided between supporters of the objective approach, on the one
hand, and those who prefer the functional approach, on the other. For present
purposes, I confine myself to the works of two scholars — Professor Wanda
(Wanda)46 and Professor Stolker (Stolker),47 a Dutch academic.

[77] Wanda approaches the question from a human dignity perspective. According
to him, an unconscious claimant has lost total capacity to live the life that he or she
could otherwise have lived because of the wrongful conduct of another. Thus,
through the medium of the law, society should recognise a duty to compensate for
loss of amenities of life, because such a claimant has lo st the ‘ability to engage in
life’s activities’.48

45 The term is attributed to English scholar, Professor Anthony J Ogus in his article ‘Damages for Lost Amenities:
For a Foot, a Feeling or a Function?’ (1972) 35 Modern Law Review 1; P J Visser Kompensasie en genoegdoening
volgens die aksie weens pyn en leed (Unpublished LLD thesis. Pretoria: University of South Africa, 1980) 425 at 270 -
289.
46 B P Wanda ‘Problems arising in compensating unconscious plaintiffs for loss of amenities of life: a comparative
survey’ (2005) 38 The Comparative and International Law Journal of Southern Africa (CILSA) 113(Wanda).
47 C J J M Stolker ‘The Unconscious Plaintiff: Consciousness as a Prerequisite for Compensation for Non -Pecuniary
Loss’ (1990) 39 (1) International and Comparative Law Quarterly 82 (Stolker ).
48 Wanda at 139.
35
[78] Wanda further posits that ‘the issue cannot be confined to providing for
substitute pleasures and the ability to enjoy such pleasures, which of course, an
unconscious person cannot feel’.49 In his view, such an approach trivialises the
whole essence of being. The learned author supports the view adopted by the English
majority that the use to which the damages are put is none of the court’s business,
and that this factor should not influence the quantum of damages. He also views
compensation for the unconscious claimant as a symbolic reflection of society’s
outrage for the damage done to the claimant.50 Furthermore, the author invokes s 9
(the right to equality) and s 10 (the right to dignity) of the Constitution, and argues
that denial of compensation breaches these rights.51

[79] Wanda also refers to the works of other academic writers such as Boberg52
and Neethling et al,53 who are both proponents of the objective approach. Boberg
strongly supports the view that, by compensating an unconscious claimant for loss
of amenities of life, the law reflects ‘society’s sympathy with the victim and its sense
of outrage at his grievous loss’. For their part, Neethling et al posit that the loss of
amenities of life is not only measured by the consciousness of a claimant. It can be
ascertained objectively to what extent the claimant’s capacity to enjoy a normal life
has been negatively affected by the injury. The learned authors further assert that,
since an unconscious person does not have a normal life and does not take part in
normal activities as he used to, it cannot be correct to say that he has not suffered
any loss.


49 Ibid at 139 -140.
50 Ibid at 140, footnote 71.
51 Ibid at 142.
52 PQR Boberg Law o f delict : Vol 1 Aquilian Liability 3 ed (1984) at 567.
53 Neethling et al Law of Delict 4 ed (2001) at 251.
36
[80] Stolker’s central proposition is that the determining factor ought to be whether
the victim is aware of the compensation, in the sense that he or she is capable of
deriving happiness from that which is bought for him with the money.54 He argues
that the purpose of damages for non -pecuniary loss is to provide happiness for the
claimant. In other words, not compensation per se, but compensation with a purpose.
If this purpose cannot be achieved, no damages for non -pecuniary loss should be
awarded. For this reason, he concludes that no award should be made for damages
for the unconscious in respect of loss of amenities of life. Stolker devotes a section
in his article to the position of very young children.55 He concludes that they are not
entitled to damages for non -pecuniary loss because they are not receptive to the
happiness provided to them through the use of the money.

Foreign law
[81] In terms of s 39(1)( c) of the Constitution, we may consider comparative
foreign law in resolving the issue. In doing so, I bear in mind the caution sounded
by the Constitutional Court in H v Fetal Assessment Centre56 to, among other things,
view any doctrines, precedents and arguments in the foreign jurisprudence through
the prism of the Bill of Rights and our constitutional values. As will be evident later,
English law featured predominantly in our jurisprudence. It is therefore necessary to
set out the key findings and reasoning in those authorities. I will also consider the
position in two common law jurisdictions, Canada and Australia, as well as the
United States of America, before I turn to the jurisprudence in o ur country.




54 Stolker at 98 .
55 Ibid at 99 -100.
56 H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) para 31.
37
English law
[82] The two leading decisions in English law are Wise v Kaye (Wise )57 and H West
& Son v Shephard (West ).58 Wise is a decision of the Court of Appeal, while West is
that of the House of Lords. In both cases, the courts were not unanimous.

[83] Wise concerned a 20 -year-old young woman who had suffered serious brain
injuries. She was still unconscious three and a half years after the accident, and was
not expected ever to recover consciousness. There was no prospect of recovery, and
she would never have any knowledge of her condition. For this reason, no claim was
made for pain and suffering. On appeal against the amount awarded by the trial court
in respect of general damages, the Appeal Court w as not unanimous. The majority
rejected the submission that, because of the claimant’s unconsciousness, only a
nominal amount should have been awarded. It held that general damages must be
assessed on an objective basis and the fact that the victim was ign orant of the loss
suffered was irrelevant. In the main majority judgment, Sellers LJ likened limiting
the compensation of an unconscious claimant to treating them as if they were dead.
In a concurring judgment, Upjohn LJ reiterated the same point. He reaso ned that in
respect of a claim for a living person, the fact that they were ignorant of their loss
was irrelevant because ‘[t]he injury to her has been done; the damage has been
suffered’.59

[84] In a dissenting judgment in Wise , Lord Diplock held that the compensation
for a claimant who is unaware of their loss should only be nominal. He reasoned that
the only rational basis on which these damages can be assessed is by assessing the
difference between the happiness which the vic tim would have enjoyed if he had not

57 Wise v Kaye and Another [1962] 1 All ER 257 ( Wise ).
58 H West & Son Ltd and Another v Shephard [1963] 2 All ER 625 ( West ).
59 West fn 58 at 268.
38
been injured and the happiness or unhappiness which he has experienced as an
injured person. Lord Diplock observed:
‘When physical pain is over leaving a permanent physical disability behind, the consequent “loss
of amenities of life” can also be compensated only by an arbitrary or conventional sum.’60

[85] In West , a 41 -year-old woman had sustained severe head injuries resulting in
cerebral atrophy and paralysis of all four limbs. Her life expectancy was reduced to
five years. She was not totally unconscious, as she, to some extent, could appreciate
her condition. For that reason, the trial court had awarded slightly more. On appeal
to it, the House of Lords was not unanimous on the question of how an unconscious
claimant should be compensated for non -pecuniary damages.

[86] The majority endorsed the Appeal Court’s majority decision in Wise , and
emphasised that: (a) the fact of unconsciousness does not eliminate the actuality of
the deprivation of the ordinary experiences and amenities of life; (b) if damages are
awarded on a correct basis, it is of no concern to the court to consider any question
as to the use th at will thereafter be made of the money awarded. Consequently, there
should not be a paring down of the award because of some thought that a particular
plaintiff will not be able to use the money.

[87] Writing for the majority on how unconsciousness affects compensation, Lord
Morris of Borth -y-Gest said:
‘An unconscious person will be spared pain and suffering and will not experience the mental
anguish which may result from knowledge of what has in life been lost or from knowledge that
life has been shortened. The fact of unconsciousness is therefore relev ant in respect of and will
eliminate those heads or elements of damage which can only exist by being felt or thought or
experienced. The fact of unconsciousness does not, however, eliminate the actuality of the

60 Ibid at 271.
39
deprivations of the ordinary experiences and amenities of life which may be the inevitable result
of some physical injury.’61

[88] Dissenting, Lord Devlin reasoned that if, because of their injuries, claimants
are rendered wholly unconscious so that they do not suffer any of the frustrations
associated with the injuries, they should be compensated less than those conscious
of their lo ss. For him, there are two elements for consideration: (a) the fact of the
loss, and (b) what a claimant feels about it. He considered the latter factor more
important to an injured person. He explained:
‘To my mind there is something unreal in saying that a man who knows and feels nothing should
get the same as a man who has to live with and put up with his disabilities, merely because they
have sustained comparable physical injuries. It is no more possib le to compensate an unconscious
man than it is to compensate a dead man’.62

[89] The English Court of Appeal had another occasion to consider the issue of
general damages for an unconscious claimant in Lim Poh Choo v Camden and
Islington Area Health Authority (Lim Poh Choo ).63 The claimant was a senior
psychiatrist who suffered brain damage through negligence at a minor
gynaecological operation, as a result of which she became a complete invalid with
severe mental impairment. Because of her condition, she was essentially non -
appreciative of her loss.

[90] As was the case in previous cases, the court was not unanimous. The majority
followed the reasoning of the majority in West and dismissed the appeal against the
award for general damages. In his minority judgment, Lord Denning MR held that,
because of the claimant’s unconsciousness of her condition, only a modest amount

61 West fn 58 at 349.
62 Ibid at 265.
63 Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332.
40
should have been awarded, for a large sum would avail her nothing; it would merely
accumulate during her lifetime, and ultimately devolve on her relatives upon her
death.

[91] On appeal, the unanimous House of Lords declined the invitation to revisit
West , but instead affirmed its correctness.64 Although it acknowledged the force of
the dissenting opinion in that judgment, and that of Lord Denning in the Court of
Appeal in Lim Poh Choo , the House considered that the policy issues underpinning
divergent judicial opinion were best served through legislative reform, rather than
judicial intervention. Writing for the House, Lord Scarman pointed out that since
West was decided in 1963, settlements and contested claims had proceeded on the
basis that Wise was correct and that its reversal ‘would cause widespread injustice,
unless it were to be part and parcel of a comprehensive reform of the law’. He
accordingly concluded that if the law is to be changed, it had to be done through
legislative intervention r ather than judicial pronouncement.

[92] It is worth mentioning that in England, a commission tasked to investigate this
issue has recommended that damages for non -pecuniary loss no longer be awarded
to unconscious victims. In its report, the Commission said:
‘We think the approach should be to award non -pecuniary damages only where they can serve
some useful purpose, for example, by providing the plaintiff with an alternative source of
satisfaction to replace one that he has lost. Non -pecuniary damages cannot do this for a
permanently unconscious plaintiff. As Justice argued in their evidence to us, “When we
compensate someone for non -economic loss, we are essentially seeking to relieve his suffering,
and suffering is by its nature an experience subjective to t he victim.”

64 Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910 .
41
We recommend that non -pecuniary damages should no longer be recoverable for permanent
unconsciousness’.65

Canada
[93] The Canadian Supreme Court pronounced itself on the issue in three
contemporaneous judgments: Arnold v Teno (Teno );66 Andrews v Grand & Toy
Alberta Ltd (Grand & Toy );67 and Thornton v Board of School Trustees (Thornton ).68
In both Grand & Toy and Thornton , young men became quadriplegic as a result of
their injuries, although their mental capacities were unaffected. In Teno , the infant
claimant’s mobility was seriously lessened. Although technically she was not
paralysed, she suffered a considerable degree of mental impairment.69

[94] The Canadian position is summed up in Dickson J’s judgment in Grand &
Toy:70
‘If damages for non -pecuniary loss are viewed from a functional perspective, it is reasonable that
large amounts should not be awarded once a person is properly provided for in terms of future care
for his injuries and disabilities. The money for future care is to provide physical arrangements for
assistance, equipment and facilities directly related to the injuries. Additional money to make lif e
more endurable should then be seen as providing more general physical arrangements above and
beyond those relating directly to the injuries. The result is a coordinated and interlocking basis for
compensation, and a more rational justification for non -pecuniary loss compensation.’
These remarks should, however, be understood in the context that none of the three
cases concerned an unconscious claimant.


65 Report of the United Kingdom Royal Commission on Civil Liability and Compensation for Personal Injury, Cmnd
7054 Vol I, paras 397 -8, established in 1973 and chaired by Lord Pearson. The commission reported in 1978.
66 Arnold v Teno 1978 CanLII 2 (SCC); [1978] 2 SCR 287 (Teno ).
67 Andrews v Grand & Toy Alberta Ltd 1978 CanLII 1 (SCC); [1978] 2 SCR 229; 83 D.L.R. (3d) 452 (Grand & Toy ).
68 Thornton v Board of School Trustees of School District No 57 1978 CanLII 12 (SCC); [1978] 2 S.C.R. 267, 83
D.L.R. (3d) 480, 19 N.R. 552, [1978] 1 W.W.R. 607, 3 C.C.L.T. 257.
69 Teno fn 66 at 296.
70 Grand & Toy fn 67 at 262.
42
Australia
[95] The leading authority in that jurisdiction is Skelton v Collins (Skelton ),71 where
a 17-year-old claimant had been rendered unconscious as a result of a motor vehicle
collision. He had remained unconscious since the accident and would remain
unconscious for the rest of his life, which was projected to last about six months
from the date of the trial. The trial court had determined general damages on the
basis that compensation must be ‘for what the plaintiff consciously suffers’. In doing
so, the trial court departed from the position adopted in England by a majority of the
Court of Appeal in Wise and by a majority of the House of Lords in West .

[96] On appeal to the high court, it was argued that general damages for the loss of
amenities of life should have been assessed on an objective basis, ie without regard
to the fact that the claimant had remained unconscious since the accident, as
enunciated by the English majority in West. The high court was divided in a four -to-
one split.72 The majority declined to follow the principle enunciated by the majority
in Wise and West. It held that where the claimant is not aware of their injuries,
damages should be low. In reaching that decision, the majority took into
consideration that a body of authority inconsistent with the majority opinion in West
had developed in Australia.73 It also pointed to the diversity of opinion in West itself.

United States of America
[97] Various states approach the issue differently. For example, in Flannery v
United States ,74 the Supreme Court of Appeals of the State of West Virginia held

71 Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 (Skelton ).
72 Kitto, Taylor, Windeyer and Owen JJ held the majority, with Menzies J dissenting.
73 The court considered two notable cases which had declined to follow the English majority, namely Scutt v Bailey
(No. 2) (1964) WAR 81 and Fowler v Fowler (1964) WAR 193, which in turn, had influenced the trial court.
74 Flannery v. United States 297 S.E.2d 433 (1982). See also Rufino v United States 829 F.2d 354, 360 -61 (2d Cir.
1987).
43
that a claimant who has been rendered permanently ‘semi -comatose’ is entitled to
recover for the impairment of his capacity to enjoy life. The New York Court of
Appeals reached a contrary conclusion in McDougald v Garber .75 The majority, led
by Chief Judge Wachtler, held that compensation beyond the purpose of delictual
recovery, further compensation results in damages that are punitive, and therefore
should not be awarded. Dissenting, Judge Titone held that loss of enjoyment of life
is an objective damage item, conceptually distinct from conscious pain and
suffering, and should be allowed.

South Africa
[98] This brings me to our country, where there are three main judgments on the
issue: Gerke ,76 Reyneke v Mutual & Federal Insurance Co. Ltd (Reyneke ),77 and
Collins v Administrator, Cape (Collins ).78 All three are judgments of two divisions
of the high court.79 There are dicta in other cases, to which reference will be made
in the course of the judgment.

[99] Gerke was the first South African case in which the issue of general damages
for an unconscious claimant was treated in any detail. Before then, there were several
dicta on the issue. In Steenkamp v Minister of Justice (Steenkamp ),80 Roberts AJ had
held that it was not proper to award an unconscious claimant such an amount as
would provide more than could be usefully employed in alleviating his unhappy
position, but leave a large sum for his heirs — a view to be adopted later in the

75 McDougald v Garber 73 N.Y.2d 246; 536 N.E.2d 372, 538 N.Y.S.2d 937, 1989.
76 Gerke fn 26.
77 Reyneke fn 43.
78 Collins fn 43.
79 Gerke and Reyneke are judgments of the former Witwatersrand Local Division (now Gauteng Division of the High
Court, Johannesburg), while Collins was decided in the former Cape of Good Hope Division (now Western Cape
Division of the High Court, Cape Town).
80 Steenkamp v Minister of Justice 1961 (1) PH J9 (T) (Steenkamp ).
44
minority judgments in English law. The ratio in Steenkamp was followed in
Geldenhuys v South African Railways and Harbours (Geldenhuys ).81

[100] Shortly after West was decided , Burne J briefly considered the issue in Roberts
NO v Northern Assurance Co Ltd (Roberts ).82 He noted that in English law, the
consideration that a large portion (if not the whole) of the damages awarded would
almost certainly not be used by the claimant, but would accrue for the benefit of his
or her estate and heirs, was irrelevant. He considered the English cases to ‘reflect a
sound, common sense view . . . in accordance with the principles of our law’.83 For
these reasons, he declined to follow Steenkamp.

[101] Gerke , which was decided shortly after Roberts , concerned a 21 -year-old
young man who had remained unconscious two and a half years after being injured
in a motor vehicle accident. He would never be able to comprehend or talk again, or
to recover control of his bodily functions or limbs. He would rema in bedridden and
helpless for the rest of his life, with a life expectancy of six months.

[102] The court considered how the plaintiff’s unawareness of his loss affected
the quantum of general damages. Ludorf J made extensive reference to English law
and attributed its heavy influence in concluding as he did. He reasoned that, as
unawareness was not a disqualification for a claim for loss of earnings, it should not
be a disqualificat ion for a claim for loss of amenities of life.84 According to Ludorf
J, general damages are awarded on objective and subjective bases for an unconscious
claimant. Objectively, compensation is made for the mere fact of the injury and the

81 Geldenhuys v South African Railways and Harbours [1964] 1 All SA 13 (C); 1964 (2) SA 230 (C) at 235B -D.
82 Roberts NO v Northern Assurance Co Ltd 1964 (4) SA 531 (D). The judgment was handed on 24 September 1964.
83 Ibid at 540F.
84 Gerke fn 26 at 495A -B.
45
loss, irrespective of the fact that the claimant is not aware of his or her loss.
‘[S]omething falls to be awarded for what has been called loss of happiness.’85 The
learned Judge alluded to some overlap between the objective and subjective
elements of damages as made in English law. He referred to a passage in Benham v
Gambling (Benham ) in which it was said:86
‘. . . it is necessary for the Court to be satisfied that the circumstances of the individual life were
calculated to lead, on balance, to a positive measure of happiness, of which the victim has been
deprived by the defendant's negligence. If the character or habit of the individual were calculated
to lead to a future of unhappiness or despondency, that would be a circumstance justifying a
smaller award.’87

[103] Ludorf J concluded that a similar approach be adopted in considering
compensation for an unconscious claimant. He said that the subjective element has
two components in assessing damages for loss of amenities of life. In the first one,
the court ‘will have regard to any relevant data about the individual characteristics
and circumstances of the plaintiff which tend to show the extent and degree of the
deprivation’.88 In the second component, the court will consider the claimant’s
awareness of his or her loss. The less awareness, the smaller the award, he said.

[104] I must point out that the passage in Benham was made in the context of
damages for loss of expectation of life. There, a child of two and a half years old
was injured in a motor accident. He was unconscious from the moment of the
accident and died later the same day. Because of the holding in Rose v Ford ,89 the
child had acquired, at the time of injury, a cause of action for loss of expectation of
life. Viscount Simon LC held that under those circumstances, no more than a

85 Ibid at 494F.
86 Benham v Gambling [1941 ] 1 All E.R. 7; [1941 ] AC 157 .
87 Ibid at 12 -13.
88 Gerke fn 26 at 494G.
89 Rose v Ford [1937 ] AC 826 ; [1937] UKHL J0625 -1.
46
moderate sum should be awarded for the diminution of his expectancy of life. Thus,
the limitation was confined to claims for shortened life expectancy. In West , the
majority expressly declined to extend such a limitation to other heads of damages,
such as loss of amenities of life. Lord Pearce put it thus:
‘Benham v Gambling artificially and drastically limited the liability of defendants in respect of
loss of expectation of life. But I would not extend that artificial limitation to any claims for loss of
some or even all of the amenities of living during a plaintiff’s life, however low that life may have
been brought.’90

[105] In Gerke , Ludorf J rested his test on the following premise :
‘[T]he test (a) is objective in that something falls to be awarded for what has been called loss of
happiness even in a case where the victim has been reduced to a state in which he has never realised
and will never realise that he has suffered this loss; (b) is, however, subjective, in the sense that
the Court, in fixing quantum , will have regard to any relevant data about the individual
characteristics and circumstances of the plaintiff which tend to show the extent and degree of the
deprivation; (c) is subjective, also, in the sense that any realisation which the plaintiff has, or did
have or will have, of what he has lost, is most material and important. This is the true compensable
suffering (as distinct from pain) which will carry far heavier dama ges than the somewhat artificial
and notional award referred to in (a) above. This suffering will continue only for the expected
duration of his life.’91
The reasoning in Gerke was followed, albeit without discussion, in Qunta.

[106] In Reyneke , a 16 -year-old child had sustained severe, irreversible brain
injuries resulting in her being in a permanent vegetative state. She was unaware of
her bodily functions, and was blind, mute and deaf. The court accepted, however,
that she experienced pain mome ntarily, for example, when she was injected. Classen
AJ referred to the English authorities considered in Gerke , and supported the

90 West fn 58 at 368.
91 Gerke fn 26 at 494F -H.
47
conclusions reached by Ludorf J in the latter case. The learned Judge expressed his
objection to the functional approach as follows:
‘The principal criticism levelled at awarding damages to a “cabbage” for pain and suffering and
loss of amenities of life is that money is paid for enjoyment of life to a person who does not know
that he had suffered such loss of enjoyment. It is said one is consoling someone with money who
does not know that he needs consolation and it is said that consolation presupposes consciousness
and some capacity of intellectual appreciation. In my view the fallacy in this argument is that it
equates a dead man with an unconscious man. It also implies that it is “cheaper to kill a man than
to maim him”.’ 92

[107] The learned Judge also had regard to the approach adopted in Southern
Insurance Association Ltd v Bailey (Bailey )93 , and concluded that ‘the South African
approach’ to the issue at hand was the following:94 courts had developed a twofold
approach to this problem, the effect of which is to divide the head of claim, ‘loss of
amenities’ into two categories of loss. The first category is for ‘pain and suffering,
shock, mental anguish, anxiety, distress or fear, etc.’ When making an award in this
category, said Classen J, the court adopts a subjective approach. Such an amount, if
any, will depend on the extent to which the claimant can subjectively feel or
experience pain, fear, anxiety, etc. If, due to their cond ition, the claimant is
insensible to those, no compensation should be made.

[108] The second category is for ‘loss of amenities of life, reduced expectation of
life, disfigurement, etc’.95 Here, the court adopts an objective approach, in that it
awards damages for loss, whether the victim is aware of such loss or not. In awarding
damages for loss in this category, a court may take into account the functional
approach as one of the factors i nfluencing the award, whereby the amount of

92 Reyneke fn 43 at 425G -H.
93 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) ( Bailey ).
94 Reyneke fn 43 at 425I -426C.
95 Ibid at 42 6A.
48
damages may be increased or decreased depending on: (a) the extent to which the
money so awarded can be utilised to benefit the victim in alleviating his/her lot in
life; and/or (b) the extent to which such money will exclusively benefit the victim’s
heirs .96

[109] Although Classen J in Reyneke followed Gerke , which in turn was influenced
by English law, he held that the use to which any award for an unconscious claimant
might be put, could be considered in the award of general damages. This is a
deviation from the English position set out by the majority in West where it was held
that the use to which any award could be put was irrelevant. Classen J found that the
child was unaware of her loss of amenities of life. Consequently, he accepted that
any award in respect of loss of amenities of life may not be applied for her benefit.
Applying the above principles, the learned Judge considered himself to retain a
discretion to make an award for loss of amenities of life. He said that the money
could be used, for example, the transport costs of family and friends intend ing to
visit the child, even though she may not be aware of their presence.

[110] Just under four years after Reyneke , the issue arose again in Collins . There, an
infant had suffered severe cerebral hypoxia in a hospital following the displacement
of a tracheostomy tube on which she was dependent for ventilation, with the
following sequelae: cortical blindness, inability to swallow, and fed using a naso-
gastric tube; unconscious of environmental stimuli; unaware of herself; no
awareness of pain; in a permanent vegetative state, and with no intellectual function.

[111] Scott J embarked upon an excursus of the English authorities referred to
earlier, including the respective dissenting judgments. He pointed out that the

96 Ibid at 426A -E.
49
distinction drawn in English law between the subjective and objective elements in
the loss of amenities of life owed its existence to a statutory provision in English
law, which allowed a claim for loss of expectation of life to be transmitted to a
decease d’s estate.97 As such, the distinction is uniquely English and there is no basis
for accepting it in South African law. Thus, such a claim is not transmissible in South
Africa, and there is no need for such a distinction, and without it, no logical basis
exists for dra wing such a distinction.98

[112] As to his objections to the English approach, Scott J remarked:99
‘First, the award of non -pecuniary damages in respect of the actuality of the loss serves no purpose
as the money awarded cannot be used for the benefit of the unconscious plaintiff. Second, it can
provide no consolation to an unconscious plaintiff, as con solation presupposes consciousness and
some capacity of intellectual appreciation. A conscious person who, by reason of his injuries, is
incapable of deriving any advantage from a monetary award can notionally obtain some
consolation from the receipt of mo ney and from being able, if he pleases, to give it away. An
unconscious person cannot even have this consolation. The so -called “functional” approach
involves the award of non -pecuniary damages only to the extent that such damages can fulfil a
useful funct ion in making up for what has been lost in the sense of providing for physical
arrangements which can make the victim’s life more endurable.’

[113] For all these reasons, Scott J declined to follow Gerke and Reyneke , and their
English provenance. He further concluded that this Court’s decision in Bailey (not
to embrace the functional approach) did not oblige him to make an award of non -
pecuniary damages. The functional approach, he reasoned, involves limiting an
award to an amount which can serve a useful purpose.100 Because of the unconscious
state of the claimant in that case, any award would serve no purpose at all, whether

97 Collins fn 43 at 74G.
98 Ibid at 94D -E and 94E -F.
99 Ibid at 92F -I.
100 Ibid at 95B -C.
50
useful or otherwise. He also distinguished Bailey on the basis that it did not concern
an unconscious claimant. Scott J accordingly concluded that the claimant was not
entitled to an award of non -pecuniary damages.101

The dicta of this Court
[114] As mentioned, this Court has not had an occasion to squarely grapple with the
divergent opinions expressed in the cases considered above. However, in two cases,
Marine & Trade Insurance Co Ltd v Katz (Katz)102 and Bailey ,103 this Court was
urged to apply the functional approach to the awarding of general damages. The
appellant insurance companies argued that the large amounts awarded for general
damages would be of no use to the claimants. Therefore, in line with the functional
approach, so contended the appellants, the amounts ought to be reduced.

[115] Katz concerned a quadriplegic woman whose mentality and intelligence were
not adversely affected by the injuries sustained in a motor vehicle accident. She
therefore had considerable insight into her dire condition, which caused her mental
distress. The trial court had awarded her what was agreed to be a higher -than-normal
amount for general damages. On appeal against that amount, the appellant insurance
company relied on Lord Denning MR’s minority judgment in the Court of Appeal
in Lim Poh Choo , and submitted that the award could bring no greater mental or
physical consolation to the claimant than a more modest and pragmatic award. Thus,
it was contended, there was no real usefulness or comfort to her as solatium .

[116] This Court pointed out that the trial Judge had considered that argument, and
had suggested that the award could be used, for example, to finance visits to her by

101 Ibid at 95D.
102 Marine & Trade Insurance Co Ltd v Katz 1979 (4) SA 961 (A) (Katz).
103 Bailey fn 93.
51
her children who had emigrated to Australia. Although an amendment specifically
claiming the expenses of such trips was abandoned in the trial court, this Court held
that this did not preclude the point from being validly used to counter the argument
about the alleged futility of awarding a large amount.

[117] Trollip JA recognised the force of the argument against awarding large sums
which would be of no use to the claimant, and would merely accumulate during her
lifetime and ultimately devolve on her relatives. However, since the claimant ‘fully
retains her in telligence and normal mentation . . . ways and means can and doubtless
will be found to use the award to her best advantage.’104 The learned Judge
considered that the award could be used to alleviate her lot in life or bring her
pleasure or consolation, eg convenient electronic devices, a reading machine, a
gadget to turn the pages of books or magazines, a person could be engaged t o pay
her social visits to entertain her or relieve her boredom, etc.

[118] In Bailey , a two -year-old girl had suffered severe widespread brain damage,
but was not a ‘cabbage’, as the court put it. She would have sufficient insight into
her condition as she developed in future. She would be aware of her physical and
mental disabilities by comparison with normal people, ‘so that this will be a
permanent source of painful frustration and suffering to he r’. The appellant
insurance company contended that the trial court should have adopted the ‘functional
approach’, which would have had the effect of reducing the amount awarded for
general damages.


104 Katz fn 102 at 983F.
52
[119] This Court noted that the functional approach had been rejected by the House
of Lords in the United Kingdom.105 Regarding the approach adopted by Trollip JA
in Katz, it was indicated that the case was decided on its own facts. This merely
meant that the approach adopted by the trial court did not warrant interference with
its award of damages.106 Nicholas JA said that the case, ‘did not lay down that the
“functional” approach was the one to be followed’. He went on to refer to the general
‘flexible approach’ alluded to in Sandler v Wholesale Coal Suppliers Ltd
(Sandler )107 in determining the award of general damages, which is to be done ‘by
the broadest considerations’. However, Nicholas JA recognised that the function to
be served by an award is a factor which may be considered, together with all the
considerations.

[120] In NK obo ZK v MEC for Health (Gauteng) (NK obo ZK ),108 it was stated that
it was not for a court to determine the purpose or function that an award will be used
for. The first judgment places much store on this remark. I will revert fully to NK
obo ZK.

Analysis
[121] It is against the above academic and jurisprudential discourse that I consider
whether an unconscious claimant is entitled to an award for loss of amenities of life.
As stated, the English approach is that general damages are awarded to an
unconscious clai mant, on an objective basis, irrespective of whether they are aware
of their loss of amenities of life. That entails that the use to which non -pecuniary
damages may be put is entirely irrelevant in the awarding of general damages. In

105 Bailey fn 93 at 119B.
106 Ibid at 119E -F.
107 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
108 NK obo ZK v Member of the Executive Council for Health of the Gauteng Provincial Government [2018] ZASCA
13; 2018 (4) SA 454 (SCA ) para 9 .
53
other words, an unconscious claimant is immutably entitled to an award for loss of
amenities of life, irrespective of whether that amount would serve any purpose, albeit
such an amount is awarded on a nominal basis. As was put by the majority of the
House of Lords in West , if damages are awarded to a plaintiff on a correct basis, the
use to be made of the money awarded is of ‘no concern to the Court’.109

[122] The English approach has not found acceptance in South Africa. Even Gerke ,
which, as mentioned, was heavily influenced by English law, seems to have accepted
that the use to be made of the money awarded is a relevant factor. Ludorf J accepted
that unawareness should play a role in considering general damages for an
unconscious claimant. First, he alluded to awareness as ‘the true compensable
suffering (as distinct from pain) which will carry far heavier damages than the
award’ based on the objective basis, which the learned judge characterised as
‘somewhat artificial and notional award’.110 Second, when considering the amount
of damages, Ludorf J deviated from the majority’s holding in West that, between the
objective and subjective elements of the loss, the former is greater than the latter. He
accepted that ‘awareness of such loss is the most important factor in such an
assessment, in the proper case’.111

[123] As demonstrated earlier, the functional approach was employed in several
South African decisions. In Katz it was used to justify the large award for general
damages, and had been adopted in two earlier cases, namely, Steenkamp and
Geldenhuys. In Steenkamp Roberts AJ said:
‘[I]t does not seem to me to be proper to award such an amount as would provide more than could
be usefully employed in alleviating his unhappy position, but leave a large sum for his heirs, as

109 West at 629, 633, 641, and 642 and affirmed in Lim Poh Choo at 332.
110 Gerke fn 26 at 494 H.
111 Ibid at 496A.
54
might well be the position if the amount claimed were awarded. It is not for the court to determine
what kind of expenditure by the plaintiff would be justified, but in considering possible needs and
compensatory activities, I have given thought to reasona ble capital expenditure such as a home, a
car adapted to his condition to allow him to be driven round in a position to see around him, home
cinema equipment, equipment to reproduce music, apparatus to allow him to read, and above all
paid help.’112

[124] In Geldenhuys Rosenow J referred with approval to Steenkamp as follows:
‘[T]he Court should aim at awarding an amount that can be usefully employed in alleviating the
plaintiff’s unhappy condition, rather than to proceed to an astronomic level which would in the
result probably benefit the ultimate heirs instead of the plainti ff.’113

[125] In Bobape v President Insurance Company Limited ,114 the court considered
general damages for a 10-year-old boy who had suffered a brain injury resulting in
severe neurological deficits that left him with severely impaired intellectual capacity
and marked impairment of communication. The court had regard to the child’s
‘apparent lack of appreciation of his condition’ when considering general
damages.115

[126] Classen J in Reyneke , held that some allowance had to be made for the fact
that the claimant would not be able to make use of any awarded amount because of
their unconsciousness. To that extent, the learned Judge posited, this should be a
factor for consideration in the awarding of gener al damages. He was more expressive
in rejecting the English position that the use to be made of the money awarded is of
no concern to the Court. He said:

112 Steenkamp fn 80 at 26.
113 Geldenhuys fn 81 at 235C.
114 Bobape v President Insurance Company Limited 1990 (4A4) QOD 43 (W).
115 Ibid at 55.
55
‘In South Africa it may be the concern of the Court if the victim will never be able to utilise or
enjoy the money. It will be in the discretion of the Court when making an award to decide whether
or not it should take into account the extent to which the victim will be able to employ the money
to alleviate his lot in life. The Court may, if it is desirable in its discretion to do so, have cognisance
of the “paring down” argument.’116

[127] The sum of these dicta is that, unlike in English law, our courts do not consider
the purpose to be served by an award of damages to an unconscious claimant to be
irrelevant. This is a factor to be taken into consideration, together with all the other
circumstances.

[128] Roberts and NK obo ZK are the only cases in which the English approach was
accepted without any qualification. As far as Roberts is concerned, it is
understandable why the court adopted that position. The case was decided in 1964,
shortly after the English House of Lords’ decision in West , and there were no South
African decisions on the issue at that stage.

[129] NK obo ZK , upon which the first judgment places much reliance, stands on a
different footing. There, reference was made to a passage in Bailey in which this
Court declined to adopt the functional approach as the standard in claims for loss of
amenities of life for unconscious claimants. Relying on that passage, it was said that
‘[w]e do not have to determine what the award will be used for – its purpose or
function’.117 This being a holding of this Court, it is ordinarily binding on us, and
from which we would not easily depart. That is the essence of the principle of
precedence. But there are two difficulties with these remarks. First, they go against

116 Reyneke fn 93 at 423I.
117 NK obo ZK fn 108 para 9.
56
what this Court held in Bailey . It is necessary to quote in full, the relevant passage,
in which Nicholas JA said:
‘This Court has never attempted to lay down rules as to the way in which the problem of an award
of general damages should be approached. The accepted approach is the flexible one described in
the often quoted statement of Watermeyer JA in Sandler v Wholesale Coal Suppliers Ltd 1941 AD
194 at 199:
“The amount to be awarded as compensation can only be determined by the broadest general
considerations and the figure arrived at must necessarily be uncertain, depending upon the Judge's
view of what is fair in all the circumstances of the case.”
I do not think that we should now adopt a different approach. To do so might result in injustice of
the kind referred to in Lord Scarman’s speech in the Lim Poh Choo case.
This does not mean, of course, that the function to be served by an award of damages should be
excluded from consideration. That is something which may be taken into account together with all
the other circumstances. ’118 (Emphasis added.)

[130] In the emphasised portion, this Court expressly recognised that the function
for which the award could be used is a factor which can be considered in awarding
general damages, together with other factors. Viewed in this light, the remarks in
NK obo ZK that the purpose for which an award would be used is of no relevance,
contradict the key holding in Bailey . The remarks in Bailey , especially those in the
first part, are often relied upon as a total rejection of the functional approach to
general damages for unconscious claimants. This is evident in the high court’s
judgment, and in both NK obo ZK and the first judgment. As I have demonstrated
above, this, with respect, is an erroneous view of what Nicholas JA said.

[131] Second, the remarks in NK obo ZK were made in passing and do not constitute
binding authority. The test in this regard is settled. W hat is binding in a judgment is

118 Bailey fn 93 at 119H.
57
the ratio decidendi , which amounts to the principle to be extracted from the case.119
As to how to determine the ratio decidendi , Schreiner JA laid down the following
test in Pretoria City Council v Levinson :120
‘[W]here a single judgment is in question, the reasons given in the judgment, properly interpreted,
do constitute the ratio decidendi, originating or following a legal rule, provided (a) that they do
not appear from the judgment itself to have been merely subsidiary reasons for following the main
principle or principles, (b) that they were not merely a course of reasoning of the facts . . . and (c)
(which may cover (a)) that they were necessary for the decision, not in the sense that it could not
be reached along other lines, but in the sense that along the lines actually followed in the judgment
he result would have been different but for the reasons.’

[132] This test was affirmed and applied in True Motives 84 (Pty) Ltd v Mahdi ,121
where Cameron JA observed that what binds courts is only the ratio of the decision
of a court and not what might have been said in passing. He explained:122
‘According to Schreiner JA’s approach , the reasons given creating or following a legal rule are
binding on this court provided they were not merely subsidiary to the main principle , that they
were not merely linked to the incidental facts . . . and that they were necessary for the decision in
the sense that along the lines that the court actually followed the results would have been different,
but for the reasons.’

[133] When Schreiner JA’s distinction is applied to the remarks in NK obo ZK (that
a court does not concern itself with the purpose for which an award would be used
for) it must first be determined what the issue in that case was. There, the appellant
was an unconscious claimant. The issue was whether he experienced ‘twilight
mome nts’. During argument, this became common cause. Accordingly, all that

119 Collect v Priest 1931 AD 290.
120 Pretoria City Council v Levinson 1949 (3) SA 305 (A) at 317; see also Makhanya v University of Zululand [2009]
ZASCA 69; 2010 (1) SA 62 (SCA); [2009] 8 BLLR 721 (SCA); [2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539
(SCA) para 81.
121 True Motives 84 (Pty) Ltd v Mahdi and Another [2009] ZASCA 4; 2009 (4) SA 153 (SCA ); 2009 (7) BCLR 712
(SCA); [2009] 2 All SA 548 (SCA) .
122 Ibid para 105.
58
remained was for this Court to determine the amount of damages. Thus, the remarks
in NK obo ZK were not necessary to determine the issue before the Court. They were
therefore made en passant , and thus constitute neither the ratio decidendi of the
judgment, nor a considered judgment on the issue in dispute in the present case:
whether the purpose for which an award might be used is relevant in considering
damages in respect of an unconscious claimant.

[134] Thus, the remarks in NK obo ZK go against the authority of this Court’s
judgment in Bailey , and they were made in passing. To that extent, they do not bind
us.

[135] Lastly, on the remarks in Bailey . As a general proposition about the approach
to general damages, there is nothing controversial about the remarks . The remarks
are, however, unhelpful in answering the question of legal principle raised in the
present appeal : whether an unconscious claimant is entitled to general damages for
loss of amenities of life. It must be borne in mind that neither in Bailey nor Sandler
was this Court confronted with that question . In Sandler , the claim was about a knee
injury, and there were no neur opsychological sequelae.

[136] As evident from a survey of our jurisprudence and of other jurisdictions, the
question of whether an unconscious claimant is entitled to general damages for loss
of amenities of life is of formidable legal complexity. Given this context, it is
doubtful tha t Nicholas JA meant his remarks to be anything more than a restatement
of the broad principle about general damages. This is the context in which ‘the
flexible approach’ alluded to by Watermeyer J in Sandler and referred to by Nicholas
JA in Bailey , should be understood. It is, therefore, simplistic to hold up Nicholas
59
JA’s remarks as an answer to a complex doctrinal question we are required to answer
in this appeal.

[137] I have demonstrated that our courts have adopted the approach that the
purpose for which an award is to be used is a relevant factor in considering loss of
amenities of life for an unconscious claimant. However, this approach is not without
difficulties. T here seems to lack a coherent articulation as to how, in the final
analysis, the purpose to be served by the award should be factored in, ie whether: (a)
the award should be made in the first place; and (b) how the fact of unawareness
influences the quantu m of the award, ie whether the amount should be nominal or
standard. In both Bailey and Reyneke , the fact of unawareness was identified as but
one factor that may be considered whether an award for loss of amenities of life
should be made for an unconscious claimant.

[138] In Reyneke , Classen J held that he had ‘ a discretion whether or not to take that
fact [of unconsciousness] into account in assessing her loss’.123 He said that, in
exercising that discretion, he took into account that the child claimant was ‘unaware
of her loss of amenities as well as the fact that a portion of any award made under
this head of damage may not be applied to [her] benefit’.124 These factors, said the
learned Judge, did not prevent him from making an award for her loss of amenities
of life.

[139] Unfortunately, Classen J did not articulate the factors he considered
important when exercising the discretion. It is therefore unclear what factors may be
relevant, or when they might be so. The result is to leave it open for a judge to decide

123 Reyneke fn 43 at 427H.
124 Ibid at 427H -I.
60
whether a claimant’s lack of awareness is relevant. This is undesirable. Claimants
and their legal representatives are entitled to expect a principled and consistent
approach from our courts.

[140] I do not accept that a court has a discretion whether to consider the fact of
unawareness. In my view, a court is enjoined to take that fact into account in all
circumstances where a claim for loss of amenities of life is asserted on behalf of an
unconscious claimant. Inevitably, when a court engages in that exercise, the purpose
for which the a ward is to serve, would arise. Once that comes into consideration,
Classen J’s test in Reyneke runs into difficulties. This is evident in the learned
Judge’s difficulty in justifying the entitlement of the unconscious claimant to an
award for amenities of life. He said:
‘In cases of this kind, it is never a clear -cut case whether or not awards for loss of amenities will
or will not redound to the victim’s personal benefit. Benefit may result directly or indirectly. An
example of indirect benefit may be established in cases where the money is used to pay the
transport costs of family and friends intending to visit Suzette. In such instances the money is in
fact employed to console her and to alleviate her lot in life, however small . This is so because,
although she may not be aware of her family’s presence, she has a right to be visited by her family
while still alive. . .’.125

[141] With respect, this is unconvincing. First, the learned Judge had earlier
accepted that a portion of any award made under this head of damage may not be
applied to the child claimant’s benefit. Thus, the statement that it was unclear
whether the award would be to the claimant’s benefit seems contradictory. Second,
because of the child’s unawa reness, the presence of her family at her bedside would
not benefit her at all, either directly or indirectly. It would certainly benefit her
family members with their transport costs. Indeed, e very benefit conceived by the

125 Ibid at 42 7I-428C
61
Judge was not to the claimant, but to her family members. In Collins , Scott J
correctly cautioned against making an award as a means of indirectly awarding
compensation to the child’s parents for their bereavement and suffering if the
claimant is a young child.126

[142] Third, because of her unawareness, the child would not appreciate the
presence of her family members. Their presence would never console her. Fourth,
despite the learned Judge stating that he would consider the claimant’s unawareness,
the large amount awar ded (R50 000) for loss of amenities of life suggests that this
fact did not have much effect on the award.

[143] Lastly, Classen J remarked:
‘The defendant cannot be heard to say, “Suzette is not aware of the presence of her family and
friends and therefore I should not be forced to pay any contribution towards the costs of having
them at her bedside.’

[144] The above remarks are emblematic of one of the often -advanced reasons for
awarding an unconscious claimant damages for loss of amenities of life. It is said
that this reflects society’s demand that some retribution be made for the injustice
done to the claimant. The difficulty with this proposition is that it impermissibly
introduces a punitive element into our law of delict. It is now settled that i n the
Aquilian action, in the action for pain and suffering and loss of amenities of life, an
award of punitive damages has no place.127 Windeyer J put it well in Skelton :
‘The one principle that is absolutely firm, and which must control all else, is that damages for the
consequences of mere negligence are compensatory. They are not punitive. They are given to

126 Collins fn 43 at 94I.
127 Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at 917A, affirmed by the Constitutional Court in Fose
v Minister of Safety and Security [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (CC) para 62 and Dikoko v
Mokhatla [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) para 76.
62
compensate the injured person for what he has suffered and will suffer in mind, body or estate.
Only so far as they can do so is he entitled to have them.’128

[145] In a different but relevant context of constitutional damages, this Court held,
in R K v Minister of Basic Education ,129 that where adequate compensation has been
made for damages suffered, additional constitutional damages would amount to
punishment. There, the parents of a child who drowned in a pit latrine at his school
were awarded compensation for the emotional shock, trauma and grief they had
suffered as a result of the incident. Additionally, the parents sought constitutional
damages. This Court surveyed cases in which constitutional damages were
awarded.130 Declining their claim for constitutional damages, Leach JA said:
‘It seems to me, in principle, that where, as here, persons have been compensated for their damages
suffered by reason of an injury, physical or psychiatric, any further damages would effectively
amount to a punishment for breach of a right for which compe nsation has already been granted.’131

[146] The other reason advanced why non -pecuniary damages should be awarded
to an unconscious claimant is that refusing to do so, equates a living person with a
dead one. This may be true. But that is a consequence of our legal system. And in
truth, insofar as damages for an unconscious person are concerned, there is not much
difference between such a person and a dead one. Both are: (a) unaware of their
conditions; and (b) not capable of enjoying the money awarded to them as damages.
There are indeed outcomes in our law of damages that are not morally or socially
palatable. For example, a person who causes life -changing injuries to an elderly

128 Skelton fn 71, para 5 of Windeyer J’s judgment.
129 R K and Others v Minister of Basic Education and Others [2019] ZASCA 192; [2020] 1 All SA 651 (SCA); 2020
(2) SA 347 (SCA) ( R K).
130 For example, MEC, Department of Welfare, Eastern Cape v Kate [2006] ZASCA 49; 2006 (4) SA 478 (SCA);
[2006] 2 All SA 455 (SCA) and President of the Republic of South Africa and Another v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici Curiae ) [2005] ZACC 5; 2005 (5) SA 3 (CC) ; 2005 (8) BCLR 786
(CC).
131 K R fn 129 para 59.
63
person who does not have any dependents, would likely pay less in damages than
would one who causes the same injuries to a young professional with dependents.132
That is how our law works.

[147] In addition to the above general contentions, counsel for the respondent
asserted that denying the child damages for loss of amenities of life would result in
a breach of his constitutional right to dignity. There is no merit in this submission.
That the child has been awarded a substantial sum in special damages is a complete
answer to it. That amount is such that the child would not want for anything, and
that, to the extent possible under the circumstances, his dignity would be preserved
by the facilities and medical equipment to be covered by the money awarded as
special damages.

[148] It should always be borne in mind that a compensation award, whether for
pecuniary or non -pecuniary damages, must have a purpose. Special damages are
meant to ‘redress, to the extent that money can, the actual or probable reduction of
a person’s patrimony as a result of the delict or breach of contract’.133 The purpose
of general damages, on the other hand, is ‘to redress the deterioration of a highly
personal legal interests that attach to the body and personality of the claimant’.134

[149] If the purpose of an award cannot be achieved, it must follow that there is no
basis for such an award. In a case of loss of amenities of life, the purpose of an award
is to offer some solatium or consolation to a claimant. If, because of the claimant’s
unconsciousness, this cannot be achieved, there should be serious doubt whether the

132 This is an example given by Stolker fn 47.
133 Van der Merwe v Road Accident Fund and Another [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682
(CC) (Van der Merwe ) para 38.
134 Ibid para 39.
64
award should be made at all. Indeed, where it is clear that a damages award would
not be of any use to a claimant, it is difficult to think of any legal basis for such
award, other than it being punitive in nature so as to express society’s outrage for
the damage caused. That is not the purpose of com pensation in delictual claims.

[150] Taylor J asserts in Skelton that a proper assessment whether damages should
be awarded ‘can be made only upon a comparison of the condition which has been
substituted for the victim’s previously existing capacity to enjoy life . . .’.135 In the
present case, no such comparison is feasible. The child has never experienced the
enjoyment of the amenities of life, because he suffered brain injury at birth. A
conscious claimant would, for example, suffer the distress about his or her condition,
the possibility of early death, frustrations about not being able to navigate things
they previously could.

[151] An unconscious claimant would never have to contend with these. He or she
would therefore not be receptive to the consolation with which the damages are
intended to provide him or her. An award for loss of amenities of life would thus
serve no purpose in t hose circumstances. No amount of money, whether nominal or
conventional, can ameliorate an unconscious claimant’s situation. As Windeyer J
put in Skelton :
‘Consolation presupposes consciousness and some capacity of intellectual appreciation. If money
were given to the plaintiff, he could never know that he had it. He could not use it or dispose of it.
It would simply go to his legal personal representatives o n his death. It would be of no more benefit
to him personally than sending the defendant to gaol would be. He is not, like Samson Agonistes,
aware and able to bemoan his fate “to live a life half dead, a living death”. His existence is in very
truth a livi ng death.’136

135 Skelton fn 71 (per Taylor J ) para 12.
136 Skelto n fn 71 (per Windeyer J) para 13.
65
[152] In the present case, the situation is complicated by the fact that the claimant
is an infant who was born with severe mental retardation resulting in his
unconsciousness. As such, his cognitive development was stunted at birth. He has
never experienced any life other than the unconscious one. Put differently, the child
has never experienced anything but his disability and dysfunction.

[153] In Oliver v Ashman ,137 Pearce LJ described the situation of an unconscious
infant as ‘a complete and painless destruction of all the higher attributes of man
[with] . . . no consciousness of what is [lost], no anguish of remembered
happiness’.138 In the same case, Willmer LJ observed that such a child ‘has never
known what the joys and sorrows of ordinary adult human life [are], and he cannot
ever know what he has been deprived of’. Alluding to the difficulty in determining
compensation for such an infant, he said:
‘. . . I think it must be obvious that where a man has known these pleasures of ordinary life, the
award of damages must be greater than in the case of one who has never known them and who
never will. This plaintiff, in so far as that matter is concerned, is (most unhappily) in the same
position substantially as if he had actually been killed in the accident.’139

[154] It must be emphasised that general damages serve to protect ‘highly
personal legal interests that attach to the body and personality of the claimant’.140 As
such, the award must be capable of being used for the exclusive benefit of the
claimant. Even the proponents of the objective approach seem to acknowledge that
in most instances, the bulk, if not all, of the award for the unconscious claimant is
unlikely to be used for their benefit. It would likely accumulate interest in a trust
fund, and upo n the claimant’s death, accrue to the claimant’s estate, for the benefit

137 Oliver and Others v Ashman and Another [1962] 2 QB 210.
138 Ibid at 231 -2.
139 Ibid at 236.
140 Van der Merwe fn 133 para 39.
66
of relatives. In this way, a largesse is poured out to the heirs of an unconscious
claimant in circumstances where they were never entitled to the benefit. Ultimately,
the award serves a purpose for which it was never intended.

[155] Scott J in Collins made a trenchant observation that an award for non -
pecuniary damages can only be considered to the extent that such damages can fulfil
a useful function in making up for what has been lost in the sense of providing for
physical arrangements which can make the claimant’s life more endurable .141 Thus,
where an unconscious claimant’s physical needs have been taken care of (by way of
pecuniary damages), awarding such a claimant non -pecuniary damages, as the
headnote reads, ‘would be like paying a dead person money in order to compensate
him for the loss of his life’.142 Accordingly, he held, where an award of non -
pecuniary damages to the unconscious claimant will not serve any purpose for the
claimant at all, whether useful or otherwise, there is no basis for making any
award.143

[156] For all of the above reasons, I cannot endorse either Gerke or Reyneke. Gerke
was based on English law, although it made a slight de viation therefrom. I have
demonstrated that our courts have not followed the English position that the purpose
for which an award would be used is irrelevant. Regarding Reyneke , although it
marked a welcome departure from English law, I have demonstrated that its
approach suffers insurmountable theoretical and practical limitations. The remarks
in NK obo ZK to the effect that the purpose for which an aw ard would be used is
irrelevant, do not reflect our law as correctly set out in Bailey. In all the

141 Collins fn 43 at 95B-C, 92H -I and 93E -F.
142 Ibid at 95D, 91G -H, 93H and 93I -J and 94B.
143 Ibid at 95B-C.
67
circumstances, I find the reasoning of Scott J in Collins far more juridically sound
and cohesive.

Conclusion
[157] The position in our law on the compensation of an unconscious claimant can
thus be summarised as follows. Such a claimant is not entitled to any award for pain
and suffering under any circumstances. This is uncontroversial. In respect of an
award for loss of amenities of life, such can only be made to the extent it can serve
some function for the personal and exclusive benefit of the claimant. This is
particularly so where an award for special damages adequately provides the means
and facilities to make the unconscious claimant’s life less miserable.

[158] Therefore, where loss of amenities of life is claimed for an unconscious
claimant, the particulars of such loss should be pleaded. This is, in any event, what
is required by rule 18(10) (c)(ii) of the Uniform Rules of Court, which enjoins such
a party to give particulars of his or her loss. Thus, a court adjudicating such a claim
is enjoined to always enquire as to the purpose to be served by such an award.
Accordingly, unless there is some indication that additional sums in the form of
general damages can be employed for the exclusive use of the claimant, there is no
juridical basis for awarding such amounts in the form of general damages for loss of
amenities of life.

[159] In the present case, adequate provision has been made for the child’s physical
needs by an award of special damages. There was no evidence as to what the
additional amounts, over and above those provided for by special damages, would
be used for. In the ab sence of any indication as to how that amount was likely to be
used for the exclusive benefit of the child, it should not have been awarded.
68
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 result is that
there was no basis for awarding the amount of R2 200 000 for general damages. I
would thu s uphold the appeal.

Order without reasons
[160] It is necessary to comment on a matter of judicial conduct. As mentioned in
the introductory paragraphs, the high court granted an order on 12 October 2022,
without reasons. Although the high court subsequently furnished reasons upon
request, its failure to do so when it made the order remains unexplained. It often
happens that a cour t, due to reasons of urgency or expediency, makes an order
without reasons. But, in those circumstances, the salutary practice is to inform the
parties that the reasons for the order would follow in due course. There is no
indication in its subsequently fu rnished reasons that any of the above circumstances
necessitated the high court to grant an order without reasons, or that it had intended
to give them later.

[161] The practice of granting orders without reasons has been discouraged by both
this Court and the Constitutional Court. In Botes v Nedbank (Botes ),144 this Court
noted that, in opposed matters where the issues have been argued, it is an
unacceptable procedure to make an order without giving any reasons for it. Litigants
are entitled to be informed of the reasons for the court’s decision. Botes was endorsed
by the Constitutional Court in Strategic Liquor Services v Mvumbi ,145 where that
Court pointed out that failure to supply reasons ‘will usually be a grave lapse of duty
. . .’.

144 Botes and Another v Nedbank Ltd 1983 (3) SA 27(A) at 27 D.
145 Strategic Liquor Services v Mvumbi NO and Others [2009] ZACC 17; (2009) 30 ILJ 1526 (CC); 2010 (2) SA 92
(CC); 2009 (10) BCLR 1046 (CC); [2009] 9 BLLR 847 (CC) para 14.
69
Order
[162] The following order is made:
1 The appeal succeeds with costs, including the costs of two counsel.
2 The order of the high court is amended by deleting the order awarding general
damages for R2 200 000 and replacing it with the following:
‘There is no award for general damages’.



_________________
T MAKGOKA
JUDGE OF APPEAL
70
Appearances :

For appellant : A B Rossouw SC (with L A Pretorius)
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein

For respondent: S J Myburgh SC (with C Jacobs)
Instructed by: Werner Boshoff Inc ., Pretoria
Phats hoane Henney Inc ., Bloemfontein .