When faced with the devastating reality of a loved one being injured and left in a vegetative state, you may wonder what legal remedies are available to you.
In June the Supreme Court of Appeal (SCA) overturned a high court ruling that had awarded R2.2m in damages to a child who had been left permanently unconscious due to medical negligence — in effect closing the door to similar claims for pain, suffering and loss of amenities of life by unconscious individuals. Such damages are usually referred to as general damages in SA law.
This article analyses the judgment in MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025] ZASCA 91, which sets a precedent in SA law regarding the entitlement of unconscious individuals to damages for pain and suffering, and loss of amenities of life. The decision could have major implications for families of individuals who are in a vegetative state, severely brain-injured, or unable to experience pain or have lost life’s enjoyments.
The claimant’s case
In this case, the biological mother of the minor child instituted legal action against the Gauteng MEC for health. The high court, sitting in Pretoria, ordered the MEC to pay a little over R15.5m, which included R2.2m to compensate the child for pain, suffering and loss of amenities of life. In a landmark ruling the majority of the SCA held that because unconscious claimants do not have an awareness of their pain and suffering, nor an appreciation for their loss of amenities of life, they are not entitled to compensation in the form of general damages.
In October 2015 “AAS” (the minor child) was born and diagnosed with cerebral palsy. The damages subject to this case arose from the neurological injuries sustained during labour and delivery at the Tshwane District Hospital and Steve Biko Academic Hospital. The cerebral palsy was further complicated by cortical visual and hearing impairments, intellectual disability, intractable, uncontrolled epilepsy and chronic dislocation of the left hip. As a result the child is unable to sit, crawl or walk, nor can he speak. The child has an estimated life expectancy of 18-20 years.
The high court found that the child experiences “twilight moments” — brief periods of responsiveness where, though he may not fully appreciate his suffering, he nonetheless endures constant pain and will require ongoing medical intervention for the rest of his life. Based on these intermittent moments of consciousness the court awarded R2.2m for general damages. However, on appeal to the SCA the MEC argued the award was unjustified, contending that the child is in a permanent vegetative state and therefore does not experience pain, and is unaware of the loss of amenities of life.
The SCA’s judgment
The majority judgment of the SCA focused on whether the child’s lack of awareness of his injuries was relevant when assessing general damages. In particular, it considered whether a person who is unconscious and unaware of their condition can receive compensation for pain, suffering or loss of enjoyment of life.
The court reviewed the high court’s decision, which had awarded R13,330,578.28 in special damages to cover the child’s medical expenses. The SCA found that the high court did not properly consider whether, in light of that significant amount, an additional R2.2m for general damages was justified.
The SCA carefully examined the child’s condition. It found that he has severely reduced mental and physical abilities, cannot care for himself and, according to expert reports, is unaware of his pain and unlikely to ever become aware. The court concluded that the high court’s finding that the child experiences brief moments of conscious is not supported by the expert medical evidence
‘Twilight moments’
The SCA also clarified what is meant by “twilight moments”, saying the high court had misunderstood the term. These refer to brief, temporary improvements after a brain injury, not signs that someone is aware of pain or their condition. The court noted that while the child may cry from hunger or discomfort, that does not mean he is conscious of suffering.
Once it established that the child is in an unconscious state, the SCA considered whether such a person could receive general damages. It ruled that because general damages are meant to compensate for pain and suffering, and this child is not aware of either, such compensation is not appropriate.
The court then turned to the loss of amenities of life — the pleasures and experiences that make life enjoyable. In this case, because the child was injured at birth he never had the chance to enjoy the pleasures of life. Unlike a conscious person who might grieve their losses, he is not able to experience frustration or sadness about his condition. As a result, the court found that an award for loss of amenities would serve no purpose.
General damages are for the individual only
Lastly, the court stated that compensation for damage should be used for the exclusive benefit of the affected individual, not anyone else. Since unconscious claimants cannot use or appreciate such an award, the justification for awarding general damages falls away. The court also stressed that when claiming for loss of amenities the specific losses should be clearly described in the court papers. In its order the SCA amended the order of the high court by deleting the order awarding general damages for R2.2m and replaced it with no award for general damages.
This ruling is significant in SA law because it provides clarity on whether general damages may be awarded to unconscious or severely incapacitated people who are unable to experience pain and suffering or to appreciate a loss of amenities of life. The judgment underscores the principle that an award for damage serves as compensation and should only be awarded where someone has the capacity to experience harm or derive benefit from the award.
The SCA has set a precedent that limits the scope of an award for pain, suffering and loss of amenities, particularly in medico-legal claims involving children with profound neurological impairments. The decision is likely to influence litigation involving severely disabled claimants and may shape how courts assess damages in the case of cerebral palsy and other birth-related injuries or defects.
• Finch is a candidate attorney, and Le Roux a director, at Herold Gie Attorneys.
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