LP[L4802/ LAW OF DAMAGES 2025 EXAM ANSWERS. DUE 28 OCTOBER 2025
QUESTION 1 [TOTAL: 25 MARKS]
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO
PERSONALITY) SEE CHAPTER 3 OF THE TEXTBOOK
1.1 According to the majority judgment, how should the court a quo have
approached comparable cases when assessing general damages? Discuss with
reference to the relevant authority cited in the judgment.
The majority judgment in MEC for Health, Gauteng Provincial Government v AAS
obo CMMS (401/2023) [2025] ZASCA 91 emphasises that courts should avoid a
purely mechanical comparison of previous awards; rather, courts must critically
engage with the facts of each precedent while noting the particular nuances of the
instant case (1 MEC for Health, Gauteng Provincial Government v AAS obo CMMS
(401/2023) [2025] ZASCA 91 (majority) para 47-49 ). The authority often cited in this
regard is Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A), which instructs
courts that while previous awards serve as guidelines, each case is unique and must
be judged on its own facts (2 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A)
at 534-535 ). The SCA in the majority judgment illustrated that the court a quo had
simply lumped together a few comparable awards without explaining how each
case’s detailed facts aligned with the facts at hand or why those precedents justified
the final quantum (3 MEC for Health (majority) paras 49-51 ).
The correct approach is to:
• Identify the similarities and differences between the facts of the instant case and
previous cases (4 Visser and Potgieter, Law of Damages (3edn Juta, 2012) 105 ).
, • Outline pertinent factors that directly shape general damages—especially the
nature, severity, and permanence of the injuries, victim’s age, occupation, emotional
trauma, awareness of the condition, and effect on lifestyle (5 S v Road Accident
Fund 2003 (5) SA 164 (SCA) at 169-170 ).
• Use prior cases only as broad guidelines, and then articulate how the particular
facts fit into or differ from those guidelines (6 Protea Assurance at 535 ).
Hence, if the court a quo had considered the plaintiff’s specific circumstances and
meaningfully distinguished them from or likened them to older cases, it would have
arrived at a fairer and more substantively reasoned quantum (7 MEC for Health
(majority) paras 50-52 ).
1.2 How should general damages be assessed in cases involving
unconsciousness? Support your answer with the relevant authority as cited in the
prescribed textbook.
In scenarios where a claimant is unconscious or in a ‘persistent vegetative state’, the
textbook articulates two contrasting views (8 Visser and Potgieter (3edn) 113 ). On
one hand, some judgments adopt an “objective” approach, awarding compensation
on the mere fact of the deprivation of amenities of life, even if the claimant is
unaware of such deprivation (9 Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484
(W) at 494 ). On the other hand, a more functional or purposive approach is
explained by certain courts, rejecting an award for a wholly unconscious claimant,
since such damages would serve no actual purpose for someone incapable of
awareness (10 Collins v Administrator, Cape 1995 (4) SA 73 (C) at 92-95 ).
Visser and Potgieter note that the latter approach has drawn support, as awarding
large sums for someone wholly unaware of their loss introduces a “punitive” element
inconsistent with the purely compensatory nature of the Aquilian action (11 Visser
and Potgieter (3edn) 117 ). The authors highlight that if an unconscious plaintiff
QUESTION 1 [TOTAL: 25 MARKS]
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO
PERSONALITY) SEE CHAPTER 3 OF THE TEXTBOOK
1.1 According to the majority judgment, how should the court a quo have
approached comparable cases when assessing general damages? Discuss with
reference to the relevant authority cited in the judgment.
The majority judgment in MEC for Health, Gauteng Provincial Government v AAS
obo CMMS (401/2023) [2025] ZASCA 91 emphasises that courts should avoid a
purely mechanical comparison of previous awards; rather, courts must critically
engage with the facts of each precedent while noting the particular nuances of the
instant case (1 MEC for Health, Gauteng Provincial Government v AAS obo CMMS
(401/2023) [2025] ZASCA 91 (majority) para 47-49 ). The authority often cited in this
regard is Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A), which instructs
courts that while previous awards serve as guidelines, each case is unique and must
be judged on its own facts (2 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A)
at 534-535 ). The SCA in the majority judgment illustrated that the court a quo had
simply lumped together a few comparable awards without explaining how each
case’s detailed facts aligned with the facts at hand or why those precedents justified
the final quantum (3 MEC for Health (majority) paras 49-51 ).
The correct approach is to:
• Identify the similarities and differences between the facts of the instant case and
previous cases (4 Visser and Potgieter, Law of Damages (3edn Juta, 2012) 105 ).
, • Outline pertinent factors that directly shape general damages—especially the
nature, severity, and permanence of the injuries, victim’s age, occupation, emotional
trauma, awareness of the condition, and effect on lifestyle (5 S v Road Accident
Fund 2003 (5) SA 164 (SCA) at 169-170 ).
• Use prior cases only as broad guidelines, and then articulate how the particular
facts fit into or differ from those guidelines (6 Protea Assurance at 535 ).
Hence, if the court a quo had considered the plaintiff’s specific circumstances and
meaningfully distinguished them from or likened them to older cases, it would have
arrived at a fairer and more substantively reasoned quantum (7 MEC for Health
(majority) paras 50-52 ).
1.2 How should general damages be assessed in cases involving
unconsciousness? Support your answer with the relevant authority as cited in the
prescribed textbook.
In scenarios where a claimant is unconscious or in a ‘persistent vegetative state’, the
textbook articulates two contrasting views (8 Visser and Potgieter (3edn) 113 ). On
one hand, some judgments adopt an “objective” approach, awarding compensation
on the mere fact of the deprivation of amenities of life, even if the claimant is
unaware of such deprivation (9 Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484
(W) at 494 ). On the other hand, a more functional or purposive approach is
explained by certain courts, rejecting an award for a wholly unconscious claimant,
since such damages would serve no actual purpose for someone incapable of
awareness (10 Collins v Administrator, Cape 1995 (4) SA 73 (C) at 92-95 ).
Visser and Potgieter note that the latter approach has drawn support, as awarding
large sums for someone wholly unaware of their loss introduces a “punitive” element
inconsistent with the purely compensatory nature of the Aquilian action (11 Visser
and Potgieter (3edn) 117 ). The authors highlight that if an unconscious plaintiff
