For Once-and-for-All: SCA rejects Judicial abolition of lump sum Damages in medical negligence claims

The Supreme Court of Appeal has set aside an order of the Eastern Cape High Court which purported to abolish the common law once-and-for-all rule in a medical negligence claim involving a child who sustained spastic quadriplegic cerebral palsy as a result of negligent management of labour and delivery in a provincial hospital. In a unanimous judgment delivered on 11 February 2026, Schippers JA held that the High Court’s development of the common law was inappropriate, and that such structural reform of the law of damages must be undertaken by the legislature. 

T N obo B N v Member of the Executive Council for Health of the Eastern Cape Government and Others (Case No: 383/23) [2026] ZASCA 14 (11 February 2026).

On 22 December 2011, at Cecilia Makiwane Hospital in East London, the child was born with spastic quadriplegic cerebral palsy as a result of the Hospital staff’s negligence during labour. In 2017, his mother sued the MEC for Health, Eastern Cape, claiming R23 million. The MEC conceded negligence, and the parties agreed on the amounts payable for general damages, future loss of earning capacity and the costs of an adapted motor vehicle. However, the MEC pleaded that the common law should be developed under sections 39(2) and 173 of the Constitution to permit the State to provide future medical care in kind rather than as a lump sum.

The court a quo upheld the plea and granted remedies directing the MEC to provide medical services and supplies at state hospitals for the child’s lifetime, with an undertaking to procure or reimburse private sector services for certain items. The court held that the once-and-for-all rule offends the Bill of Rights on two grounds: (1) because lump sum awards impede the realisation of the right to healthcare for everyone under section 27(2) of the Constitution, and (2) because legal practitioners take 25% of damages awarded (sometimes more), which significantly diminishes the capacity of the award to provide fully for the claimant.

The court a quo concluded that the “limited incremental development” sought in terms of s 39(2) of the Constitution, was justified and that on the evidence, it is also in the interests of justice that the common law be developed “to provide courts which adjudicate medical negligence claims with a broader remedial framework”.

This judgment, if not challenged would have had a ripple effect on how damages in general would be calculated. While the justification in relation to claims made against the State may have appeared to be reasonable, there is little doubt that it would have set the basis for further developments in the common law without being limited to instances involving the State.

The SCA’s reasoning

The SCA found that the court a quo failed to apply the methodology prescribed by the Constitutional Court in Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and Another1 in relation to the development of the common law. In particular, it did not consider the underlying rationale for the rule, being finality of litigation and the prevention of a multiplicity of actions, nor did it assess the wider consequences of its judgment.

The SCA went so far as to hold that the court a quo’s order was not a “limited incremental development” but a radical restructuring of the law of damages, based on the unsound reliance on obiter dicta in the case of MEC for Health and Social Development, Gauteng v DZ obo WZ², which itself had cautioned that the major engine for law reform is the legislature and not the judiciary. Drawing on the Supreme Court of Canada’s decision in Watkins v Olafson³, the SCA endorsed the principle that courts are ill-equipped to consider fully the complexities of introducing periodic or in-kind payments, and that a single case cannot serve as the vehicle for such far-reaching reform.

The SCA further identified that the order handed down by the court a quo simply implicated the right to equality under section 9(1) of the Constitution as the differentiation between children injured in public versus private hospitals was, prima facie, objectively irrational. It also implicated the right to dignity under section 10 of the Constitution, depriving the plaintiff of the freedom to choose how and where the child should receive future care. 

In dealing with the court a quo’s second rational for developing the common law, namely the misconduct by legal practitioners in handling lump sum awards, the SCA held that this must be regulated by the Legal Practice Council, other professional bodies and the court, not by development of the common law.

Lastly, and importantly, the SCA also expressly held that MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government⁴, pertaining to the development of the common law in relation to the amendment of the State Liability Act to permit periodic payments, was wrongly decided and should not be followed.

The message

Recently, our High Courts have developed different approaches when dealing with the once-and-for-all rule in medical malpractice cases against the State. This has left us in a state of uncertainty. The SCA has now settled the position authoritatively: the once-and-for-all rule remains intact, lump sum damages are the default, and that should any reform take place, such reform must be championed by Parliament.

¹2016 (1) SA 621 (CC)

²2018 (1) SA 335 (CC)

³[1989] 2 SCR 750

⁴[2020] 2 All SA 177 (GJ)