LPL4802
OCT/NOV PORTFOLIO 2025
UNIQUE NO.
DUE DATE: 30 OCTOBER 2025
,1.2 Assessment of general damages in cases involving unconsciousness
(10 marks)
(a) General principle
Where the claimant is permanently unconscious, general damages must reflect only
the loss that the claimant personally experiences or can benefit from. This flows
from the principle of personal satisfaction (solatium)—compensation must serve a
subjective or functional purpose for the injured party (Visser & Potgieter Law of
Damages 3 ed at 391; Neethling & Potgieter Law of Delict 8 ed (2021) at 294).
(b) Authority from the majority in CMMS
At paragraphs [157] – [159], the SCA summarised South African law as follows:
1. An unconscious claimant is never entitled to an award for pain and suffering,
because awareness is a precondition for that head of loss.
2. An award for loss of amenities of life may only be made to the extent that it
serves a personal and exclusive benefit to the claimant.
3. Where special damages already provide adequately for the claimant’s care,
comfort, and quality of life, additional general damages serve no juridical
purpose.
The court approved the reasoning of *Scott J in Collins v Administrator, Cape 1995 (4)
SA 73 (C) as “juridically sound and cohesive.” In contrast, it declined to follow Gerke
and Reyneke, which had relied too heavily on the English approach (West v Shephard
[1964] AC 326).
(c) Position in South African law
The majority aligned with Bailey v Southern Insurance Association Ltd 1984 (1) SA 98
(A) and Marine & Trade Insurance Co Ltd v Katz 1979 (4) SA 961 (A), confirming that
the purpose of damages is compensatory, not punitive. The court must therefore
, enquire into the purpose of the award—whether it will meaningfully benefit the
unconscious claimant.
(d) Application of the rule
In CMMS, the child’s lifelong care, equipment, and medical costs had already been
covered by special damages. There was no evidence that any further amount would
serve the child’s personal benefit, and thus the R 2.2 million general-damage award
was set aside.
(e) Supporting textbook authority
According to Neethling & Potgieter Law of Delict (8 ed, 2021 at 294), “non-patrimonial
loss in the form of pain, suffering and loss of amenities presupposes some level of
consciousness.” This confirms the majority’s statement that general damages are not
automatic and must be limited to functional compensation only.
(f) Conclusion
In cases of unconsciousness, courts must:
Disallow any award for pain and suffering;
Grant damages for loss of amenities only if the award will have a personal or
functional purpose for the claimant; and
Recognise that special damages ordinarily suffice to secure the claimant’s
comfort.
Therefore, in accordance with CMMS (2025 ZASCA 91 paras [157]–[159]) and Collins
(1995 (4) SA 73 (C)), general damages must be restricted or denied where they serve
no compensatory or functional purpose for an unconscious plaintiff.
OCT/NOV PORTFOLIO 2025
UNIQUE NO.
DUE DATE: 30 OCTOBER 2025
,1.2 Assessment of general damages in cases involving unconsciousness
(10 marks)
(a) General principle
Where the claimant is permanently unconscious, general damages must reflect only
the loss that the claimant personally experiences or can benefit from. This flows
from the principle of personal satisfaction (solatium)—compensation must serve a
subjective or functional purpose for the injured party (Visser & Potgieter Law of
Damages 3 ed at 391; Neethling & Potgieter Law of Delict 8 ed (2021) at 294).
(b) Authority from the majority in CMMS
At paragraphs [157] – [159], the SCA summarised South African law as follows:
1. An unconscious claimant is never entitled to an award for pain and suffering,
because awareness is a precondition for that head of loss.
2. An award for loss of amenities of life may only be made to the extent that it
serves a personal and exclusive benefit to the claimant.
3. Where special damages already provide adequately for the claimant’s care,
comfort, and quality of life, additional general damages serve no juridical
purpose.
The court approved the reasoning of *Scott J in Collins v Administrator, Cape 1995 (4)
SA 73 (C) as “juridically sound and cohesive.” In contrast, it declined to follow Gerke
and Reyneke, which had relied too heavily on the English approach (West v Shephard
[1964] AC 326).
(c) Position in South African law
The majority aligned with Bailey v Southern Insurance Association Ltd 1984 (1) SA 98
(A) and Marine & Trade Insurance Co Ltd v Katz 1979 (4) SA 961 (A), confirming that
the purpose of damages is compensatory, not punitive. The court must therefore
, enquire into the purpose of the award—whether it will meaningfully benefit the
unconscious claimant.
(d) Application of the rule
In CMMS, the child’s lifelong care, equipment, and medical costs had already been
covered by special damages. There was no evidence that any further amount would
serve the child’s personal benefit, and thus the R 2.2 million general-damage award
was set aside.
(e) Supporting textbook authority
According to Neethling & Potgieter Law of Delict (8 ed, 2021 at 294), “non-patrimonial
loss in the form of pain, suffering and loss of amenities presupposes some level of
consciousness.” This confirms the majority’s statement that general damages are not
automatic and must be limited to functional compensation only.
(f) Conclusion
In cases of unconsciousness, courts must:
Disallow any award for pain and suffering;
Grant damages for loss of amenities only if the award will have a personal or
functional purpose for the claimant; and
Recognise that special damages ordinarily suffice to secure the claimant’s
comfort.
Therefore, in accordance with CMMS (2025 ZASCA 91 paras [157]–[159]) and Collins
(1995 (4) SA 73 (C)), general damages must be restricted or denied where they serve
no compensatory or functional purpose for an unconscious plaintiff.
