Co-authored by Brigitte Geyer

In April 2024, the Bloemfontein High Court confirmed that the life expectancy of a child suffering from cerebral palsy should not be considered to reduce general damages.

In the main action, in 2023, the claimant was awarded R2,400,000.00 in general damages on behalf of their 15-year-old child, the patient, who suffers from cerebral palsy due to birth complications. The judge adjudicated on general damages only.

The defendant applied for leave to appeal against this order. The defendant raised two related issues in its appeal.

Firstly, it argued that the judge erred in its estimation of the general damages by failing to consider the life expectancy report, as meticulously drawn up by actuaries. The life expectancy report estimated that the child would live to the maximum age of 29.6 years.

Secondly, the defendant contended that general damages to the amount of R2,400,000.00 was excessive and that a quantum between R1,800,000.00 and R2,000,000.00 was more in line with general damages typically awarded for children suffering from cerebral palsy.

As for the first issue in appeal, the court in the main action determined that life expectancy ought not be considered when calculating general damages, as general damages is a reasonable and fair amount linked directly to the minor child’s pain and suffering, as opposed to their future medical expenses and loss of earning capacity which constitute separate claims.

The court supported this reasoning. While the mere fact that the life expectancy of the patient has been diminished as a result of the applicant’s conduct contributes to their pain and suffering, no further consideration should be given to the number of years by which their life expectancy has been diminished. In other words, diminished life expectancy may be taken into account when increasing general damages, not reducing it.

As for the second argument that the quantum awarded was too steep, the court made two objections.

Firstly, the court emphasised that a trial court has a wide discretion when it comes to determining what constitutes fair and adequate compensation for bodily injuries. In the absence of a striking misdirection or irregularity, it would therefore be inappropriate for an appeal court to reduce the quantum awarded by the trial court. There are no clearly defined parameters by which the monetary value of a person’s pain and suffering can be measured and the amount awarded as compensation for such pain and suffering should therefore be determined in light of the broadest general considerations.

Secondly, the lesser quantum presented by the defendant made specific reference to the life expectancy of the patient. As the court had established that such considerations are irrelevant to the reduction of general damages, the quantum argued on appeal could not be accepted. The court considered various precedents related to the quantum of general damages awarded to patients suffering from cerebral palsy. The quantum in these cases range between R2,575,493.00 and R2,633,066.00, which are in line with the quantum awarded in the main action.

Finally, the threshold for granting leave to appeal has been raised so that the burden of proof is that another court would come to a different conclusion, not that it might do so. The defendant failed to show a striking disparity between the award that was given and that which they deem to be the appropriate award for damages.

The defendant therefore failed to prove that the Court of Appeal would come to a different conclusion as to the quantum for general damages awarded and the application for leave to appeal was dismissed with costs.

MEC for the Department of Health Free State Province v G.A.K obo M.A.K (2795/2015) [2024] ZAFSHC 142 (25 April 2024) (saflii.org)