In a significant court ruling, the Supreme Court of Appeal (SCA) has decided that an unconscious child cannot receive compensation for pain and suffering. This ruling came after a case where a child, born with cerebral palsy due to medical negligence, was awarded R2.2 million for general damages (pain and suffering). The child also received R13.3 million for special damages to cover medical and care costs.
The mother of the child, who was representing him, was happy with the ruling, but the Gauteng MEC (provincial government) disagreed. The MEC argued that because the child was in a vegetative state (unconscious and unable to feel pain), the child should not receive money for pain and suffering.
The court was split on the decision. Three judges agreed with the MEC, while two judges disagreed. The majority of judges said that since the child can’t experience the benefits of compensation for pain and suffering, it would not make sense to give this money. They also noted that the R13.3 million already awarded was enough to cover the child’s needs and improve his life.
However, the two dissenting judges believed the child should still receive the general damages, stating that the child was not entirely unconscious and could have moments of awareness. They argued that even if the child couldn’t feel pain, the payment could go to the family.
The case highlights the significant difficulty our court faces when deciding whether an award for general damages is appropriate in the circumstances.
In the end, the SCA ruled that the unconscious child was not entitled to general damages.
Read the full judgment here: https://www.saflii.org/za/cases/ZASCA/2025/91.html
Our office has extensive experience in medical negligence claims. Should you be a victim of medical negligence contact one of our legal experts for an assessment of your claim.
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