, LPL4802
SEMESTER 2 PORTFOLIO 2025 ANSWERS
DUE DATE: 30 OCTOBER 2025
QUESTION 1:
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO
PERSONALITY)
1.1 Assessment of General Damages Using Comparable Cases
In the majority judgment of MEC for Health, Gauteng Provincial Government v AAS
obo CMMS (401/2023) [2025] ZASCA 91, the Supreme Court of Appeal underscored
that courts assessing general damages for non-patrimonial loss must adopt a
principled approach, balancing consistency with case-specific circumstances
(Bremmer & Van Heerden, 2020). General damages aim to compensate for injuries
to personality, such as pain and suffering, loss of amenities of life, emotional
distress, and impairment of dignity, rather than for quantifiable financial loss (Corbett,
Hofmeyr & Kentridge, 2019).
The majority stressed that courts must consult comparable cases to anchor awards,
ensuring fairness, predictability, and proportionality (Zimmermann & Visser, 2021).
Comparative analysis serves to prevent both excessive and inadequate
compensation. Factors that differentiate cases — such as age, occupation, pre-
existing health, and injury severity — must guide upward or downward adjustments
(Bremmer & Van Heerden, 2020). For example, injuries in a child may warrant higher
awards due to lifelong consequences, while an elderly plaintiff with pre-existing
conditions may justify a more moderate approach.
Practically, the trial court should first identify relevant awards in analogous cases,
examining the nature and impact of injuries, duration of suffering, and social and
, occupational consequences. Then, the award must be calibrated to reflect
distinctions in the current matter (Corbett, Hofmeyr & Kentridge, 2019). The court in
MEC for Health v AAS emphasised that reliance on prior cases provides a rational
framework but does not rigidly bind judicial discretion; the award must ultimately
reflect the plaintiff’s unique circumstances while maintaining overall equity and public
confidence in the justice system (Zimmermann & Visser, 2021).
1.2 Assessment of General Damages in Cases Involving Unconsciousness
The assessment of general damages is particularly nuanced where a plaintiff has
experienced periods of unconsciousness. Although the plaintiff may have lacked
awareness of pain or distress during unconscious periods, South African law
recognises the objective harm suffered (Bremmer & Van Heerden, 2020). The SCA
in MEC for Health v AAS held that the totality of the injury, including unconscious
intervals, must be incorporated in evaluating damages, as unconsciousness often
indicates the severity of trauma and the need for extensive medical intervention
(Corbett, Hofmeyr & Kentridge, 2019).
Courts consider expert medical testimony, caregiver observations, and the long-term
consequences of unconsciousness, such as scarring, functional impairment, or
psychological sequelae, when assessing general damages (Zimmermann & Visser,
2021). Consciousness is not a prerequisite for suffering; rather, the injury’s enduring
effects on dignity, lifestyle, and emotional well-being are central to valuation.
Consequently, periods of unconsciousness may justify higher awards, reflecting the
gravity of the injury and its moral and symbolic significance in compensating the
plaintiff for loss of personality (Bremmer & Van Heerden, 2020).
Moreover, the law recognises that unconsciousness contributes to long-term life
disruption. The courts emphasise that general damages in such cases must account
for both the immediate objective harm and the lasting impact on personal autonomy,
quality of life, and social functioning (Corbett, Hofmeyr & Kentridge, 2019). This
approach ensures that awards are just, reasonable, and responsive to both the
measurable and intangible effects of severe injury.
SEMESTER 2 PORTFOLIO 2025 ANSWERS
DUE DATE: 30 OCTOBER 2025
QUESTION 1:
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO
PERSONALITY)
1.1 Assessment of General Damages Using Comparable Cases
In the majority judgment of MEC for Health, Gauteng Provincial Government v AAS
obo CMMS (401/2023) [2025] ZASCA 91, the Supreme Court of Appeal underscored
that courts assessing general damages for non-patrimonial loss must adopt a
principled approach, balancing consistency with case-specific circumstances
(Bremmer & Van Heerden, 2020). General damages aim to compensate for injuries
to personality, such as pain and suffering, loss of amenities of life, emotional
distress, and impairment of dignity, rather than for quantifiable financial loss (Corbett,
Hofmeyr & Kentridge, 2019).
The majority stressed that courts must consult comparable cases to anchor awards,
ensuring fairness, predictability, and proportionality (Zimmermann & Visser, 2021).
Comparative analysis serves to prevent both excessive and inadequate
compensation. Factors that differentiate cases — such as age, occupation, pre-
existing health, and injury severity — must guide upward or downward adjustments
(Bremmer & Van Heerden, 2020). For example, injuries in a child may warrant higher
awards due to lifelong consequences, while an elderly plaintiff with pre-existing
conditions may justify a more moderate approach.
Practically, the trial court should first identify relevant awards in analogous cases,
examining the nature and impact of injuries, duration of suffering, and social and
, occupational consequences. Then, the award must be calibrated to reflect
distinctions in the current matter (Corbett, Hofmeyr & Kentridge, 2019). The court in
MEC for Health v AAS emphasised that reliance on prior cases provides a rational
framework but does not rigidly bind judicial discretion; the award must ultimately
reflect the plaintiff’s unique circumstances while maintaining overall equity and public
confidence in the justice system (Zimmermann & Visser, 2021).
1.2 Assessment of General Damages in Cases Involving Unconsciousness
The assessment of general damages is particularly nuanced where a plaintiff has
experienced periods of unconsciousness. Although the plaintiff may have lacked
awareness of pain or distress during unconscious periods, South African law
recognises the objective harm suffered (Bremmer & Van Heerden, 2020). The SCA
in MEC for Health v AAS held that the totality of the injury, including unconscious
intervals, must be incorporated in evaluating damages, as unconsciousness often
indicates the severity of trauma and the need for extensive medical intervention
(Corbett, Hofmeyr & Kentridge, 2019).
Courts consider expert medical testimony, caregiver observations, and the long-term
consequences of unconsciousness, such as scarring, functional impairment, or
psychological sequelae, when assessing general damages (Zimmermann & Visser,
2021). Consciousness is not a prerequisite for suffering; rather, the injury’s enduring
effects on dignity, lifestyle, and emotional well-being are central to valuation.
Consequently, periods of unconsciousness may justify higher awards, reflecting the
gravity of the injury and its moral and symbolic significance in compensating the
plaintiff for loss of personality (Bremmer & Van Heerden, 2020).
Moreover, the law recognises that unconsciousness contributes to long-term life
disruption. The courts emphasise that general damages in such cases must account
for both the immediate objective harm and the lasting impact on personal autonomy,
quality of life, and social functioning (Corbett, Hofmeyr & Kentridge, 2019). This
approach ensures that awards are just, reasonable, and responsive to both the
measurable and intangible effects of severe injury.
