LPL4802
PORTFOLIO EXAM
DUE DATE: 30 OCTOBER 2025
,LPL4802 October/November 2025 Exam
DUE 30 OCTOBER 2025
Question 1: Nature and Assessment of Non-Patrimonial Loss (Injury to Personality)
1.1 Approach to Comparable Cases
The Supreme Court of Appeal in MEC for Health v AAS emphasised that past awards in
comparable cases serve only as a guide, not a binding rule. A trial court “should not
slavishly follow previous awards”, because “the particular facts of each case must be
considered”. In other words, courts must consider the unique facts including the degree
of pain and loss of amenities before arriving at a figure. As Kgoele JA held: even when a
case appears broadly similar, the court must still “state the factors and circumstances it
considers important in damages assessment” and give a reasoned basis for its award.
The SCA reiterated that while past awards “serve as a useful guide”, they “should never
interfere with a court’s discretion”. In practice, this means comparing the facts of the new
case e.g. severity of injuries, life expectancy, care needs to those in reported cases
before relying on their awards.
Only cases of material similarity (comparable injuries, pain level, amenity loss) justify
close comparison. Authorities in this judgment emphasised this balance: Protea
Assurance Co Ltd v Lamb and Marine Trade Insurance Co Ltd v Goliath were cited to
underline that comparable cases are informative but not determinative. In summary, the
court a quo should have used past awards as benchmarks, but must have assessed the
child’s specific condition and suffering first. The court’s reliance on awards alone without
a detailed factual comparison was held to be a “mechanical exercise”, which the SCA
condemned.
, 1.2 General Damages and Unconsciousness
Where a claimant has been rendered unconscious e.g. coma, vegetative state at or after
the accident, the law treats general damages differently. It is settled that an unconscious
person has no awareness of pain and hence cannot claim for pain and suffering during
the period of unconsciousness. The SCA in MEC v AAS reiterated that “there is no
awareness of pain, and a claimant is not entitled to compensation for pain and suffering”
if unconscious. Thus if the claimant remains unconscious immediately after the accident,
damages for pain are assessed only from the point of regaining consciousness (if at all).
In contrast, courts have debated whether an unconscious claimant may recover for loss
of amenities of life. Some scholarship e.g. Wanda, Neethling supports an objective award
of amenities loss even for an unconscious person, to recognize the total deprivation of
normal life. However, no clear majority rule exists, and any award for amenities would be
symbolic rather than for experienced loss. In practice, if the injury is wholly
unconsciousness without regaining capacity, awards tend to exclude pain damages and
carefully consider whether any amenity loss should be compensated with many judges
reluctant to award full general damages.
Courts assess an unconscious claimant’s general damages by excluding pain and
suffering for the unconscious period, and by treating loss of amenities cautiously often
awarding only what is deemed reasonable in light of the claimant’s permanent condition
and the absence of conscious suffering.
PORTFOLIO EXAM
DUE DATE: 30 OCTOBER 2025
,LPL4802 October/November 2025 Exam
DUE 30 OCTOBER 2025
Question 1: Nature and Assessment of Non-Patrimonial Loss (Injury to Personality)
1.1 Approach to Comparable Cases
The Supreme Court of Appeal in MEC for Health v AAS emphasised that past awards in
comparable cases serve only as a guide, not a binding rule. A trial court “should not
slavishly follow previous awards”, because “the particular facts of each case must be
considered”. In other words, courts must consider the unique facts including the degree
of pain and loss of amenities before arriving at a figure. As Kgoele JA held: even when a
case appears broadly similar, the court must still “state the factors and circumstances it
considers important in damages assessment” and give a reasoned basis for its award.
The SCA reiterated that while past awards “serve as a useful guide”, they “should never
interfere with a court’s discretion”. In practice, this means comparing the facts of the new
case e.g. severity of injuries, life expectancy, care needs to those in reported cases
before relying on their awards.
Only cases of material similarity (comparable injuries, pain level, amenity loss) justify
close comparison. Authorities in this judgment emphasised this balance: Protea
Assurance Co Ltd v Lamb and Marine Trade Insurance Co Ltd v Goliath were cited to
underline that comparable cases are informative but not determinative. In summary, the
court a quo should have used past awards as benchmarks, but must have assessed the
child’s specific condition and suffering first. The court’s reliance on awards alone without
a detailed factual comparison was held to be a “mechanical exercise”, which the SCA
condemned.
, 1.2 General Damages and Unconsciousness
Where a claimant has been rendered unconscious e.g. coma, vegetative state at or after
the accident, the law treats general damages differently. It is settled that an unconscious
person has no awareness of pain and hence cannot claim for pain and suffering during
the period of unconsciousness. The SCA in MEC v AAS reiterated that “there is no
awareness of pain, and a claimant is not entitled to compensation for pain and suffering”
if unconscious. Thus if the claimant remains unconscious immediately after the accident,
damages for pain are assessed only from the point of regaining consciousness (if at all).
In contrast, courts have debated whether an unconscious claimant may recover for loss
of amenities of life. Some scholarship e.g. Wanda, Neethling supports an objective award
of amenities loss even for an unconscious person, to recognize the total deprivation of
normal life. However, no clear majority rule exists, and any award for amenities would be
symbolic rather than for experienced loss. In practice, if the injury is wholly
unconsciousness without regaining capacity, awards tend to exclude pain damages and
carefully consider whether any amenity loss should be compensated with many judges
reluctant to award full general damages.
Courts assess an unconscious claimant’s general damages by excluding pain and
suffering for the unconscious period, and by treating loss of amenities cautiously often
awarding only what is deemed reasonable in light of the claimant’s permanent condition
and the absence of conscious suffering.
