The Background to the Case
The case concerned a minor child who suffered severe neurological injuries during labour and delivery at Tshwane District Hospital and Steve Biko Academic Hospital.
The child was born on 18 October 2015 and was subsequently diagnosed with cerebral palsy together with profound additional impairments.
The Gauteng MEC for Health conceded liability in full for the respondent's agreed or proven damages. The dispute before the courts therefore concerned the amount of compensation payable rather than whether the negligent medical treatment had caused the child's injuries.
Severe Cerebral Palsy
The child suffered permanent and profound neurological impairment arising from injuries sustained during labour and delivery.
Multiple Disabilities
His condition included cortical visual and hearing impairments, intellectual disability and uncontrolled epilepsy.
Fully Dependent
The child could not independently sit, crawl or walk and was unable to speak.
Already Conceded
The MEC had conceded liability for the damages arising from the child's injuries. The dispute concerned quantum.
What Compensation Had Already Been Awarded?
The Gauteng Division of the High Court, Pretoria awarded the child a total amount exceeding R15 million.
This included approximately R13.33 million in special damages and a further R2.2 million in general damages.
The MEC appealed only against the R2.2 million general damages award.
R13.33 Million
The award catered for various financial needs associated with the child's condition, care, treatment and future requirements.
R2.2 Million
The High Court awarded an additional amount for non-pecuniary loss, including pain, suffering and loss of amenities of life.
Special Damages vs General Damages
The distinction between these two forms of compensation became crucial in the appeal.
Special damages generally compensate measurable financial losses and expenses arising from an injury. General damages compensate non-financial consequences that cannot be calculated by simply adding invoices or projecting expenses.
Special Damages
These may include future medical care, therapy, assistive devices, caregivers, accommodation adaptations and other quantifiable expenses.
General Damages
These traditionally compensate consequences such as pain, suffering, disability, disfigurement and loss of amenities of life.
Why Did the High Court Award R2.2 Million?
The High Court considered expert reports dealing with the child's neurological and functional condition.
It concluded that the child experienced what it described as “twilight moments” and was not in a state of complete unconscious suffering.
The High Court considered that he experienced pain and had suffered a devastating loss of amenities of life. It therefore awarded R2.2 million in general damages.
Was the child capable of sufficient awareness to experience pain, suffering and the loss of the ordinary amenities of life, or was his neurological condition so profound that he was effectively unconscious of those losses?
Why Did the MEC Appeal?
The MEC argued that the child was in an unconscious or vegetative state and therefore could not experience pain or appreciate his loss of amenities of life.
On that basis, the MEC contended that no general damages should have been awarded.
Alternatively, the MEC argued that the general damages award should be substantially reduced.
The appeal required the Court to consider both a factual question about the child's level of awareness and a legal question about whether an unconscious claimant can receive compensation for non-pecuniary loss.
The Supreme Court of Appeal Was Divided
This was not a unanimous judgment.
Five judges heard the appeal. Three formed the majority and two disagreed with the outcome.
No General Damages
Makgoka JA, with Goosen JA and Dawood AJA concurring, concluded that the child was unconscious of his loss and that the R2.2 million award should be set aside.
Would Have Upheld the Award
Kgoele JA, with Baartman AJA concurring, considered the evidence sufficient to establish awareness warranting an award of general damages.
The disagreement illustrates the difficulty courts face when medical evidence suggests extremely limited awareness but does not produce a simple, universally agreed description of the claimant's cognitive state.
Why Did the Majority Find the Child Unconscious of His Loss?
The majority carefully considered the expert reports dealing with the child's intellectual, neurological and communicative abilities.
The child required constant care and his condition was permanent and irreversible.
The majority concluded that his intellectual functioning was almost non-existent and that he would never appreciate that his condition was different from that of other children.
It therefore disagreed with the High Court's finding that the child was not in an unconscious state.
Can an Unconscious Claimant Receive Damages for Pain and Suffering?
According to the majority judgment, awareness is essential to a claim for compensation for pain and suffering.
Pain and suffering are subjective experiences. If a claimant is unconscious of pain, there is no experienced pain for money to compensate under that particular head of general damages.
The majority held that where there is unconsciousness, there is no awareness of pain. An unconscious claimant is therefore not entitled to compensation for pain and suffering as a component of general damages.
What About Loss of Amenities of Life?
This was the more difficult legal question.
Loss of amenities of life refers broadly to the loss of the ability to participate in and enjoy the ordinary experiences and activities of life.
The question was whether a person who is completely unaware of that loss should nevertheless receive money simply because the loss objectively exists.
The majority considered competing approaches to this question in South African and foreign law.
The Loss Itself Is Compensated
Under a purely objective approach, damages may be awarded because the claimant has lost amenities of life even if the claimant cannot appreciate that loss.
What Can the Award Achieve?
A functional approach considers whether an award can actually be used to improve or ameliorate the claimant's condition for the claimant's own benefit.
The SCA Majority Favoured a Functional Approach
The majority rejected the proposition that an unconscious claimant must invariably receive compensation for loss of amenities simply because those amenities have objectively been lost.
Instead, it held that a court should consider the purpose that an additional award of general damages would actually serve.
Where loss of amenities is claimed on behalf of an unconscious person, the majority held that the particulars of the loss should be pleaded and the court should consider whether the additional money can be used for that claimant's exclusive benefit.
According to the majority, where there is no indication that additional general damages can be employed for the exclusive benefit of the unconscious claimant, there is no juridical basis for an additional award for loss of amenities of life.
Why Did the R13.33 Million Special Damages Award Matter?
The majority considered the substantial provision that had already been made for the child's future physical and care needs.
The special damages award included provision for numerous interventions intended to make his life more comfortable and provide for his ongoing care.
Assistive Devices
Provision included specialised seating, wheelchairs, mattresses and other equipment required because of the child's disability.
Caregivers & Assistance
The award catered for caregivers, relief caregivers and other forms of ongoing assistance.
Ongoing Treatment
Provision was made for therapies including occupational, speech and language, and physiotherapy.
Medication & Future Care
The damages included provision for medication and other anticipated medical and physical requirements.
The majority considered that these damages already provided for the interventions capable of ameliorating the child's physical condition and making his life more comfortable.
Why Was the Additional R2.2 Million Rejected?
The majority found no evidence establishing how the additional general damages would be used for the child's exclusive benefit beyond the substantial provision already made through special damages.
In those circumstances, it concluded that the additional award would not serve the compensatory purpose for which damages for loss of amenities were intended.
The judgment should not be understood as saying that a profoundly disabled child has suffered no loss or that the child's needs are unimportant. The majority's reasoning concerned the juridical purpose of an additional non-pecuniary award where the claimant is unconscious and substantial special damages already provide for the claimant's physical needs.
Why Did Two Judges Disagree?
Kgoele JA, with Baartman AJA concurring, reached a different conclusion about the child's awareness.
The dissent considered evidence that the child moaned when hungry, experienced forms of pain or discomfort and appeared to have some awareness of his mother's voice.
In their view, the evidence did not justify treating him as completely unconscious or in a persistent vegetative state.
The dissenting judgment considered his level of awareness sufficient to justify an award of general damages and would have dismissed the MEC's appeal.
The dissent regarded the child's limited responses and awareness as significant. It considered that diminished intellectual capacity did not make his pain, suffering and profound loss of enjoyment of life legally irrelevant.
Which Judgment Is Legally Binding?
Because three judges agreed with the judgment delivered by Makgoka JA, that judgment constitutes the majority decision of the Supreme Court of Appeal.
The dissenting judgment remains important because it demonstrates the competing reasoning and the difficulty of assessing awareness in catastrophically brain-injured claimants, but it did not determine the outcome of the appeal.
The appeal succeeded. The High Court's order awarding R2.2 million in general damages was deleted and replaced with an order that there be no award for general damages.
Does This Mean Every Severely Brain-Injured Child Gets No General Damages?
No. That would state the decision too broadly.
The claimant's actual level of awareness remains critically important. The judgment itself demonstrates this because the majority and minority disagreed about how the expert evidence concerning this particular child's awareness should be interpreted.
A claimant who retains awareness of pain, discomfort, disability or diminished enjoyment of life is not necessarily in the same legal position as a claimant found to be unconscious of those losses.
The Medical Evidence Matters
Neurological, neuropsychological and other expert evidence may be crucial in establishing the claimant's cognitive awareness.
Subjective Experience Matters
Whether a claimant can experience and appreciate pain is directly relevant to compensation for pain and suffering.
Purpose of the Award Matters
For an unconscious claimant, the majority requires consideration of whether additional compensation can serve a functional purpose for that claimant.
Special Damages Matter
The extent to which medical, care and other needs have already been provided for may influence the assessment of additional general damages.
What Does This Mean for Medical Negligence Claims?
Catastrophic medical negligence claims often involve several distinct categories of damages. The fact that one category is limited or unavailable does not necessarily mean that the entire damages claim disappears.
In this case, liability for the child's neurological injuries had already been conceded and the substantial special damages award was not overturned.
The appeal concerned the separate question of whether an additional R2.2 million should have been awarded as general damages.
A medical negligence claim may involve substantial compensation for future medical treatment, caregivers, therapy, equipment, accommodation, loss of earnings and other financial losses even where a separate dispute exists concerning general damages.
Expert Evidence Becomes Critical in Catastrophic Injury Claims
The case demonstrates why expert evidence is central to the assessment of damages following profound neurological injury.
The dispute was not simply about the diagnosis of cerebral palsy. The Court had to examine what the child's neurological condition meant for his actual level of cognition, awareness, communication and experience of pain.
Neurological Function
Experts may need to assess the nature and severity of the brain injury and the claimant's level of neurological functioning.
Cognitive Awareness
Evidence concerning responses to voices, discomfort, surroundings and other stimuli may become important.
Future Care
Medical and allied experts assist in determining the treatment, therapy, equipment and caregiving the claimant will require.
Financial Quantification
The costs associated with lifelong or long-term disability must be properly calculated and supported by evidence.
The Injury and the Compensation Are Separate Questions
The severity of an injury does not automatically determine the amount payable under every head of damages.
A catastrophically injured claimant may require millions of rands for future medical care and support. Those financial requirements are assessed separately from non-pecuniary compensation for subjective experiences such as pain and suffering.
The SCA's judgment therefore illustrates the importance of identifying exactly what each component of a damages claim is intended to compensate.
The majority did not reverse the finding of medical negligence or the substantial compensation for the child's care needs. It dealt specifically with whether an additional award of general damages was legally justified in the circumstances.
The Key Takeaway
MEC for Health, Gauteng Provincial Government v AAS obo CMMS represents an important development in South African damages law.
The majority held that an unconscious claimant who has no awareness of pain cannot receive compensation for pain and suffering.
For loss of amenities of life, the majority adopted a functional approach: where the claimant is unconscious, the court should consider whether an additional award can actually be employed for the claimant's exclusive benefit.
In this case, the child's extensive physical and care needs had already been addressed through the special damages award, and there was no evidence establishing how the additional R2.2 million would serve his exclusive benefit.
The majority therefore set aside the general damages award.
In catastrophic brain injury litigation, evidence concerning the claimant's level of awareness, experience of pain, loss of amenities and the practical purpose of the damages sought may be crucial to the assessment of general damages.
Has Medical Negligence Caused a Serious or Permanent Injury?
Danel Campbell Attorneys assists clients with medical negligence and catastrophic personal injury claims. These matters often require detailed investigation of medical records, specialist expert evidence, future care requirements and the different categories of damages that may be recoverable.
Explore Personal Injury & Medical Negligence Services →This article provides general legal information and commentary on MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025] ZASCA 91, delivered on 20 June 2025, and does not constitute legal advice. The Supreme Court of Appeal was divided, with the majority judgment determining the outcome by three judges to two. Medical negligence and damages claims are fact-specific and the nature and extent of compensation depend on the evidence and circumstances of each matter. Legal advice should be obtained in relation to a specific claim.