In a landmark judgment, the Constitutional Court has left the door open for the development of the common law to have future damages in personal injury claims paid periodically and by way of services.

The Constitutional Court was faced with the question whether massive future medical expenses based on speculation can be paid by way of services rather than money and can be paid periodically rather than as a single amount at judgment stage.

The court concluded that compensation in a form other than money is not incompatible with the basis of awarding delictual damages. Secondly, the court found that periodic payments (or services) which are subject to a ‘top-up/claw-back’ will fit in with general principles of compensation for loss. Factual evidence has to be led to substantiate a case for the development of the common law by the courts in this regard, however.

The evidence required for providing compensation by way of future services instead of money would have to be to the effect that the services offered to the disabled plaintiff are as good as the services they could buy for themselves from the private healthcare sector. According to ordinary principles of damages, the plaintiff will not succeed for a higher figure for future medical expenses than is required to pay for equivalent public healthcare facilities. It is always open to a defendant to prove that equally good treatment is available at a lower cost.

If the law is to be developed on the basis of topping-up the damages where the future medical expenses prove to be more expensive than those determined at the trial date; or to claw-back from the amount of the provisional award if the future medical expenses are never incurred (for instance because of the death of the claimant or the fact that the treatment fails or the plaintiff does not avail themselves of the treatment), there will have to be evidence that the defendant or a suitable trust fund will remain in place to meet the future expenses and that any money set aside is not paid to the plaintiff unless the expenses are actually incurred.

The case concerned a claim by a mother on behalf of her minor son who had cerebral palsy due to complications at birth arising from prolonged labour at a State hospital as a result of negligence of the nursing staff. Liability had been conceded by the State and the damages were agreed but not how and when those damages were going to be paid.

This is probably a matter which is more suitably dealt with by way of law reform by the legislature.

The door has therefore been left open to develop the common law to provide periodic compensation which may be in the form of services and for evidence to be led how the top-up/claw-back of funds will be made possible.

This is probably a matter which is more suitably dealt with by way of law reform by the legislature. It was done for Road Accident Fund matters for instance.

This case comes in the wake of the exponential rise in medical negligence claims against State hospitals in particular and the South African Law Reform Commission has been commissioned to investigate the reasons for medical negligence claims against the State. A paper on the Commission’s investigations was published in July 2017 and includes recommendations on legislative reform.

The case is MEC, Health and Social Development, Gauteng v DZ.