The SCA guiding us out of the “twilight state” of general damages

In 2022, I questioned whether we were witnessing another paradigm shift in the court’s approach to awarding general damages. Now, with the benefit of hindsight, it appears that this period demonstrated a more frequent tendency by our courts (as we saw in the early 2000’s) to award increasingly large awards for general damages.

https://www.clydeco.com/en/insights/2022/11/are-we-seeing-another-paradigm-shift

This tendency was commented on in Manzimela v Road Accident Fund 2025 ZA GP JH C 484, where the Court noted that increasingly larger awards are being made to plaintiffs with relatively minor injuries whereas those who have suffered significant injuries are being comparatively undercompensated.

In Mazimela, the plaintiff suffered a severe head injury and fracture of the cervical spine resulting in him being rendered quadriplegic, incontinent of bladder and bowel and left with severe psychological long-term sequelae. In this case the court awarded general damages of R4,500,000.00, which, as far as I know, appears to be the highest award for general damages in our jurisdiction to date. 

In handing down the award, the Court commented:

• “The purpose is not to “punish” the Defendant, and neither is it to pour from the horn of largesse in favour of the Plaintiff. At the same time this court is also of the view that many less serious matters in which general damages awards are made on the strength of narrative tests are overcompensated whereas matters which is truly serious with severe injuries or sequelae such as  quadriplegia, tetraplegia, paraplegia, hemiplegia, upper and/or lower limb amputations, blindness, being deaf or dumb are, in comparison, under compensated.”

The Court however steered clear from commenting on general damages awards in respect of individuals who have suffered head injuries “as certain types of brain injuries have the effect of a patient not being aware or not experiencing his or her injuries to the fullest extent or in some cases at all”.

This brings me to a discussion of the recent Supreme Court of Appeal judgment in MEC for Health Gauteng Provincial Government v AAS obo CMNS 2025 ZACSA 91.  This case is important for two reasons. First and foremost, it clarifies the stance that we are to adopt when approaching general damages in respect of unconscious plaintiffs. Secondly, and in passing, the Court, provides us with a reminder of the general principles which ought to be considered when quantifying general damages – principles which unfortunately appear to be sometimes overlooked.

Briefly, AAS involved an appeal from the Pretoria High Court where the only issue was whether general damages should be awarded to a minor who was diagnosed with cerebral palsy as a result of a medical malpractice incident.  

The judgment revisits the debate of the 1990’s as to the approach to be adopted when considering awards made in respect of unconscious plaintiffs, specifically highlighting the difference in approach by the Gauteng High Court (Reyneke v Mutual & Federal Insurance Company Limited 1992 (2) SA 412 (T) compared to the approach taken by the Western Cape High Court (Collins v Administrator, Cape 1995 4 SA 73(C)). Given these different approaches, it was necessary for the Supreme Court of Appeal to finally pronounce on this issue.

As a starting point, the SCA reminds us that when quantifying general damages, one must distinguish between pain and suffering on the one hand and loss of amenities of life on the other. This is an aspect often overlooked when considering what an appropriate award should be. When dealing with unconscious plaintiffs it was settled that no award is to be made in respect of pain and suffering, whereas there are differing academic opinions on the approach to loss of amenities of life.

Before dealing with whether an award can be made to an unconscious plaintiff for loss of amenities of life it is necessary to determine whether the plaintiff was indeed an unconscious plaintiff and what this meant. This is where the SCA comments that the trial court erred. The trial court had found that because the minor had felt pain and responded to some stimuli that the minor was in a “twilight state” – not completely vegetative but not conscious either.

When discussing this “twilight state” the SCA referred to the SCA case of NK obo ZK v MEC for Health Gauteng Provincial Government 2018 ZA SCA 13.  In this case, the injuries suffered by minor resulted in her not having full insight into the nature and extent of her injuries, but also not being in a completely vegetative state.  This was described as her being in a “twilight state”.  In NK obo ZK, given that there was some appreciation of the sequelae flowing from the injuries suffered and that the minor fell within the “twilight state”, an amount of R1,800,000.00 was awarded in 2018.  

While the minority judgment accepted that the minor in AAS fell into a “twilight state”, the majority held that by the very description of what was considered to be a “twilight state” the minor was indeed an unconscious plaintiff – because you have brief and fluttering moments of lucidness does not mean that you are conscious. 

The SCA in AAS appears to have embraced the dictum in Collins when deciding under what circumstances an award should be made to an unconscious plaintiff and emphasised that for such an award to be made, it must serve a purpose: 

• “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 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 compensation in delictual claims.”

It bears mentioning that the SCA cautioned against awarding general damages which seemingly appear to fulfil a purpose when that purpose has already been accounted for by the special damages which have been awarded.

While there appears to be a tendency to award increasingly large amounts for general damages, the SCA has reminded us not to do so recklessly. The quantification of general damages is not akin to crystal ball gazing. There are various important principles which must be taken into account when considering appropriate awards and AAS is a refreshing reminder of what this entails.