When a patient’s brain injuries diminishes their awareness and full appreciation of their pain and suffering, an award for general damages is appropriate if the patient experiences intermittent periods of heightened awareness.
When determining the amount to be awarded for general damages, our courts prefer a flexible approach. The award should be determined by the broadest general considerations and be based on what is fair in all the circumstances of a case. The purpose or function of the award for general damages is irrelevant. Past awards by the courts for similar losses provide guidance, but the past awards must be scrutinised carefully and courts must make independent assessments in each case.
In our law at present, the ‘once and for all’ principle is to the effect that a plaintiff must claim in one action all past and prospective damages flowing from a cause of action, and the court is obliged to award these damages in a lump sum and to make a contingency deduction for unknowns such as longevity. A damages award for past, future and related medical expenses should not be conflated with an award for loss of amenities of life. An award for loss of amenities of life would therefore not result in a duplication of an award for past, future and related medical expenses. ‘A court is not a casino’. Departure from the normal range of deductions for contingencies of between 15 and 20 percent should only occur with good reason, such as the presence of special circumstances indicating that the patient’s life is likely to be more adverse than the norm.
In a March 2018 medical negligence case in which a child sustained severe brain damage resulting in cerebral palsy and other adverse manifestations, the appeal court increased an award for general damages from R200 000 to R1 800 000, and reduced the deduction for contingencies in respect of future loss of earnings from 35% to 20%. General damages in bodily injury matters are awarded for non-monetary losses (such as pain and suffering and loss of amenities of life) as well as future loss of earnings, future hospital, medical and related expenses, and loss of support caused by the death of breadwinners. Contingency deductions for awards for future loss of earnings tend to range between 15 and 20 percent and the court reduced the allowance accordingly.
The guesswork inherent in judicial decision-making regarding future losses may be mitigated by legislation which permits setting up appropriate trust funds, and the periodic compensation of future medical expenses. A landmark Constitutional Court judgment in 2017 left the door open for the latter mechanism, as discussed in our blog on periodic compensation of future medical expenses.
The case is Khoza v MEC for Health, Gauteng.