, QUESTION 1
1.1 Use of Comparable Cases in Assessing General Damages
In the case of MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025]
ZASCA 91, the majority held that the court a quo incorrectly relied on previous cases when
determining general damages. The Supreme Court of Appeal (SCA) stated that while comparable
cases may be consulted for guidance, a court may not follow them mechanically or treat them as
decisive. Instead, it must critically evaluate the facts of each case before using them in comparison.
This approach is consistent with the long-standing principle in Protea Assurance Co Ltd v Lamb
1971 (1) SA 530 (A), where the Appellate Division held that previous awards for general damages
may only serve as a guideline. A court must still exercise its own judicial discretion in determining
what is fair and reasonable in each case.
The SCA criticised the trial court for making a “mechanical comparison” to other cases without
examining the specific facts of the present matter. It relied on Marine & Trade Insurance Co Ltd v
Goliath 1968 (4) SA 329 (A), where the court held that before using previous decisions as
comparisons, the degree of pain, suffering and loss of amenities in each case must be properly
established. The SCA further confirmed that general damages involve a discretionary judicial
assessment guided by fairness, as established in Road Accident Fund v Marunga 2003 (5) SA 164
(SCA).
Therefore, the majority held that the correct approach is:
Previous cases must only guide and not dictate the determination.
Courts must examine the specific facts and severity of injuries before applying comparisons.
Awards must include reasons explaining how the amount was reached.
The process must not be mechanical or based purely on quantum tables.
The court concluded that the high court failed in this respect because it did not explain why it
chose R2.2 million as general damages or how the comparator cases were factually similar to the
present one.
1.1 Use of Comparable Cases in Assessing General Damages
In the case of MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025]
ZASCA 91, the majority held that the court a quo incorrectly relied on previous cases when
determining general damages. The Supreme Court of Appeal (SCA) stated that while comparable
cases may be consulted for guidance, a court may not follow them mechanically or treat them as
decisive. Instead, it must critically evaluate the facts of each case before using them in comparison.
This approach is consistent with the long-standing principle in Protea Assurance Co Ltd v Lamb
1971 (1) SA 530 (A), where the Appellate Division held that previous awards for general damages
may only serve as a guideline. A court must still exercise its own judicial discretion in determining
what is fair and reasonable in each case.
The SCA criticised the trial court for making a “mechanical comparison” to other cases without
examining the specific facts of the present matter. It relied on Marine & Trade Insurance Co Ltd v
Goliath 1968 (4) SA 329 (A), where the court held that before using previous decisions as
comparisons, the degree of pain, suffering and loss of amenities in each case must be properly
established. The SCA further confirmed that general damages involve a discretionary judicial
assessment guided by fairness, as established in Road Accident Fund v Marunga 2003 (5) SA 164
(SCA).
Therefore, the majority held that the correct approach is:
Previous cases must only guide and not dictate the determination.
Courts must examine the specific facts and severity of injuries before applying comparisons.
Awards must include reasons explaining how the amount was reached.
The process must not be mechanical or based purely on quantum tables.
The court concluded that the high court failed in this respect because it did not explain why it
chose R2.2 million as general damages or how the comparator cases were factually similar to the
present one.
