Personal Injury | Compensation | South African Law

When someone is seriously injured through the wrongful conduct or negligence of another person, not every consequence of the injury can be measured with an invoice, payslip or calculator.

South African law recognises this through an award of general damages, also referred to as non-patrimonial damages. These damages compensate an injured person for the non-financial consequences of an injury, including pain and suffering, disability, disfigurement and loss of amenities of life.

Unlike medical expenses or loss of earnings, there is no precise mathematical formula that can determine what pain, permanent scarring or the loss of the ability to enjoy ordinary activities is worth.

The Basic Principle

General damages attempt to provide fair monetary compensation for non-financial harm suffered as a result of an actionable injury, even though money cannot truly restore what the injured person has lost.

General damages in South African personal injury law

What Are General Damages?

General damages compensate a claimant for harm to interests that do not have an immediately measurable monetary value.

If a person incurs R50,000 in proven medical expenses, the financial loss can generally be identified and quantified. The same cannot be done with physical pain, permanent disability, scarring or the loss of the ability to participate in activities that once formed an important part of that person's life.

The court must therefore place a monetary value on consequences that are, by their nature, incapable of exact calculation.

General Damages

Pain & Suffering

Compensation may take account of physical pain, discomfort and suffering caused by the injury and its treatment.

General Damages

Disfigurement

Permanent scars, burns, amputations and other changes to physical appearance may be relevant.

General Damages

Disability

The nature and permanence of physical or other disability may significantly influence the assessment.

General Damages

Loss of Amenities

Compensation may recognise the loss or reduction of the ability to participate in and enjoy the ordinary activities of life.

General Damages vs Financial Loss

Personal injury claims frequently involve both non-patrimonial and patrimonial loss. Understanding the distinction is important because each component of the claim must be proved differently.

Non-Patrimonial

General Damages

These compensate consequences such as pain, suffering, disfigurement, disability and loss of amenities that cannot be calculated with mathematical precision.

Patrimonial

Financial Damages

These relate to measurable financial losses such as medical expenses, loss of earnings and other proven economic losses resulting from the injury.

One Injury, Different Losses

A serious injury can produce several separate heads of damage. Compensation for pain and suffering is not the same claim as compensation for medical expenses or loss of earnings.

A Simple Example

Consider a person who suffers a serious leg injury because of another person's negligence.

The injured person may incur hospital and rehabilitation expenses and may be unable to work for several months. Those losses can ordinarily be investigated using financial records, invoices and employment evidence.

But the same person may also experience severe pain, undergo several operations, develop permanent scarring and lose the ability to run, play sport or participate fully in activities previously enjoyed.

Financial

Medical Expenses

The actual or anticipated costs associated with medical treatment may form a separate patrimonial claim.

Financial

Loss of Earnings

Income lost because of the injury may be calculated and claimed where properly proved.

Non-Financial

Pain & Scarring

The physical experience of pain and the impact of permanent scarring may form part of general damages.

Non-Financial

Loss of Lifestyle

The inability to return to sport, hobbies or other meaningful activities may constitute loss of amenities of life.

What Can General Damages Compensate?

The exact components depend on the circumstances of the particular claim. In bodily injury matters, several recurring forms of non-patrimonial harm are recognised.

01

Pain and Suffering

This includes physical discomfort caused by the injury and its consequences, as well as discomfort associated with medical treatment and procedures.

02

Loss of Amenities of Life

This concerns the loss of the ability to participate in and enjoy normal life activities, including activities that were particularly important to the injured person.

03

Disfigurement

Permanent scarring, burns, amputations and other visible consequences of an injury may be considered.

04

Disability

Permanent or long-term physical impairment and its effect on the person's independence and daily functioning may be relevant.

05

Emotional & Psychological Consequences

Where supported by the evidence and legally recoverable, psychological and emotional consequences flowing from the injury may also be relevant to the assessment.

What Is Loss of Amenities of Life?

Loss of amenities is broader than physical pain.

It concerns what the injured person can no longer do or enjoy because of the injury. The effect can be dramatic even where the person remains capable of working or performing basic daily activities.

A keen runner who can no longer run, a parent who can no longer play physically with their children, or a person who loses independence in ordinary daily activities may experience a significant loss of amenities.

Highly Personal

Loss of amenities cannot be assessed only by looking at the medical diagnosis. The enquiry includes how the injury changed the particular claimant's actual life.

How Are General Damages Calculated?

There is no tariff or simple mathematical formula that determines the value of general damages in an ordinary personal injury claim.

The court exercises a discretion to determine an amount that is fair and reasonable in the circumstances.

Several factors may influence that assessment.

01

Nature of the Injury

The court considers the injuries sustained and their seriousness.

02

Duration and Severity of Pain

Acute pain, chronic pain, repeated procedures and prolonged recovery may all be relevant.

03

Permanent Consequences

Permanent disability, scarring, disfigurement and long-term symptoms are important considerations.

04

Effect on Daily Life

The impact on mobility, independence, relationships, recreation, hobbies and ordinary activities may be examined.

05

Future Prognosis

The likelihood of future deterioration, surgery, chronic symptoms or permanent restrictions may affect the award.

06

Comparable Awards

Courts may consider awards in reasonably comparable cases, while recognising that no two injured people or cases are identical.

Do Previous Cases Determine What Your Claim Is Worth?

No. Previous judgments are useful, but they do not create a fixed price list for injuries.

South African courts repeatedly emphasise that comparable awards are guides rather than rigid rules. The facts of the particular claimant's case must remain central to the assessment.

Two people may suffer apparently similar fractures but experience very different consequences because of their age, occupation, hobbies, complications, recovery, scarring or permanent limitations.

No Compensation Calculator

A previous case involving a similar injury does not automatically establish the value of a new claim. The nature and impact of the individual claimant's injuries must be assessed on their own evidence.

What Evidence Is Used to Prove General Damages?

Because general damages concern the human consequences of an injury, strong evidence is required to demonstrate the nature, severity and long-term effect of those consequences.

Medical Evidence

Hospital & Clinical Records

Records help establish the injuries, treatment, operations and medical course following the incident.

Expert Evidence

Specialist Reports

Appropriate experts may assess prognosis, disability, impairment, scarring and future treatment requirements.

Personal Evidence

The Claimant's Experience

Evidence about pain, daily limitations and activities the claimant can no longer perform can be highly relevant.

Supporting Evidence

Family & Other Witnesses

In appropriate cases, people who knew the claimant before and after the injury may help demonstrate how the injury changed daily life.

In What Claims Can General Damages Arise?

General damages are not limited to one type of personal injury case. They may arise in various delictual claims where the legal requirements for liability and damages are established.

Road Accidents

RAF Claims

General damages may be recoverable from the Road Accident Fund where the statutory serious-injury requirements are satisfied.

Healthcare

Medical Negligence

Serious injuries caused by negligent medical treatment may give rise to a claim for non-patrimonial loss.

Public Liability

Slip, Fall & Other Injuries

Where negligence is established, injuries occurring on unsafe premises may result in a claim that includes general damages.

State Liability

Unlawful Arrest & Detention

General damages can also arise from infringements of personality rights, including qualifying claims for unlawful arrest and detention.

General Damages in Road Accident Fund Claims

Road Accident Fund claims are subject to an additional statutory requirement.

A person injured in a motor vehicle collision does not automatically qualify for general damages merely because the RAF is liable for the accident.

The injury must qualify as a serious injury under the Road Accident Fund Act and the applicable regulations.

RAF Serious Injury Requirement

The assessment of general damages in an RAF claim involves a separate serious injury assessment process. This is distinct from proving liability for the collision and from claiming patrimonial losses such as loss of earnings.

How Is a “Serious Injury” Assessed for RAF Purposes?

The statutory process requires the injury to be assessed by an appropriately qualified medical practitioner in accordance with the prescribed method.

Broadly, the assessment considers whole person impairment and, where appropriate, the narrative test.

Assessment Route

Whole Person Impairment

The prescribed assessment methodology considers the degree of permanent impairment arising from the injuries.

Assessment Route

Narrative Test

An injury may also qualify under the prescribed narrative criteria, including certain serious long-term impairments, serious disfigurement or severe long-term mental or behavioural disturbance.

Important for RAF Claimants

A serious injury assessment is a specific statutory process. It should not be reduced to the assumption that any painful or permanent injury automatically qualifies for general damages from the RAF.

Do You Need a Physical Injury to Claim General Damages?

Not necessarily in every type of claim.

General damages can arise from legally recognised infringements that do not necessarily involve a conventional physical injury. For example, claims arising from unlawful arrest and detention may involve damages for the infringement of liberty, dignity and related consequences.

Psychological injury or emotional consequences may also be relevant in appropriate cases, but the legal basis of the claim, causation and the supporting evidence remain important.

Every Claim Is Different

Experiencing distress does not automatically create a claim for general damages. There must first be a recognised legal cause of action and the necessary elements of that claim must be established.

What About Claims After the Death of a Breadwinner?

This area is sometimes misunderstood.

Where a breadwinner dies because of the wrongful conduct of another, qualifying dependants may have a claim for loss of support. That is principally a patrimonial claim based on the financial support that the dependant has lost.

The death of a loved one does not, merely by itself, mean that dependants automatically receive general damages for their grief or emotional trauma.

Loss of Support Is Different

A dependant's loss-of-support claim and an injured person's claim for pain, suffering and loss of amenities are different legal claims with different requirements.

Does a More Serious Injury Always Mean a Higher Award?

Severity is important, but general damages are not determined by the name of the injury alone.

Courts consider the overall consequences of the injury. A fracture that heals completely may have very different consequences from a fracture that causes chronic pain, permanent reduced mobility, repeated surgery and the loss of important recreational activities.

Similarly, a scar may have a different impact depending on its size, location, visibility and effect on the particular claimant.

Relevant

Duration of Recovery

Hospitalisation, operations, rehabilitation and the length of recovery can influence the assessment.

Relevant

Residual Symptoms

Chronic pain, stiffness, weakness and other ongoing symptoms may remain relevant long after the original injury.

Relevant

Permanent Impairment

Lasting restrictions and disability generally carry greater significance than temporary limitations.

Relevant

Individual Lifestyle

The impact on the particular claimant's independence, family life, recreation and enjoyment of life must be considered.

Can a Lawyer Tell You Immediately What Your General Damages Are Worth?

Usually not responsibly.

An early estimate made before the medical evidence, prognosis and long-term consequences are known may bear little resemblance to the proper value of the claim.

In a serious personal injury matter, the value becomes clearer as the medical evidence develops and the permanent consequences of the injury can be properly assessed.

Beware of Instant Figures

A general damages claim should not be valued simply by searching for an apparently similar injury online and copying the award. Comparable cases are only part of the assessment.

How Is a General Damages Claim Prepared?

Proper preparation involves establishing both the injury itself and the effect that injury has had, and is expected to continue having, on the claimant.

01

Establish Liability

The legal basis upon which another person or entity is responsible for the injury must first be established.

02

Collect Medical Evidence

Medical records help establish the nature of the injuries, treatment received and complications that developed.

03

Obtain Appropriate Expert Reports

Experts may be required to address prognosis, permanent impairment, disability, scarring and psychological consequences.

04

Assess the Personal Impact

The claimant's pre-injury and post-injury functioning, hobbies, independence and lifestyle should be properly investigated.

05

Consider Comparable Decisions

Relevant previous awards may then assist in determining a reasonable range, without replacing an individual assessment of the claim.

Why Does Proper Legal Preparation Matter?

General damages can appear deceptively simple because there is no spreadsheet showing the precise value of pain or loss of quality of life.

In reality, that lack of mathematical certainty makes the evidence even more important.

A claim that does not adequately demonstrate the severity, permanence and practical consequences of the injury may fail to reflect the claimant's true loss.

The Evidence Tells the Story

The aim is not merely to prove that an injury occurred. A properly prepared claim demonstrates what the injured person endured, what has permanently changed and what has been lost from their ordinary enjoyment of life.

The Key Takeaway

General damages are South African law's attempt to compensate for the consequences of an injury that cannot be measured directly in rands and cents.

They may encompass pain and suffering, disability, disfigurement and loss of amenities of life. Their value depends on the particular claimant, the severity and permanence of the injuries, the medical evidence and the effect of those injuries on the person's life.

Previous court awards can provide guidance, but there is no fixed tariff and no two personal injury claims are identical.

For Injured Claimants

If you have suffered a serious injury because of another person's negligence or wrongful conduct, the value of your claim should be assessed as a whole, including both measurable financial losses and any legally recoverable non-patrimonial damages.

This article provides general legal information about general damages in South African law and does not constitute legal advice. The right to claim damages and the amount recoverable depend on the cause of action, the evidence, the nature and consequences of the injury and the applicable legislation. Road Accident Fund claims are additionally subject to the statutory serious-injury assessment process for general damages. Legal advice should be obtained in relation to a specific matter.

Personal Injury

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A personal injury claim can involve far more than medical bills. If you have been seriously injured because of another person's negligence, we can assess the circumstances, the impact of your injuries and the different categories of damages that may be recoverable.

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