[School]
[Course title]
, Exam (elaborations)
LPL4802 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 30
October 2025 Institution
University Of South Africa (Unisa)
Course
Law of Damages (LPL4802)
LPL4802 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 30 October
2025; 100% TRUSTED Complete, trusted solutions and explanations
QUESTION 1: NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO PERSONALITY)
Study the attached judgment, MEC for Health, Gauteng Provincial Government v AAS obo
CMMS (401/2023) [2025] ZASCA 91 (20 June 2025), and answer the questions that follow. Your
response must be written in essay format. Each substantive point you make, when supported by
relevant legal authority, will carry a value of two (2) marks. 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. (15
marks) 1.2How should general damages be assessed in cases involving unconsciousness?
Support your answer with the relevant authority as cited in the prescribed textbook. (10 marks)
[25 marks] LPL 4802_OCT/NOV EXAM Page 5 of 9 1.1 How the court a quo should have
approached comparable cases when assessing general damages
In the SCA judgment the majority emphasised the correct approach when assessing general
damages (i.e. non-pecuniary loss: pain and suffering, loss of amenities of life, etc). The following
key points emerge:
1. Reference to comparable awards is permissible but not determinative.
The judgment affirms that courts may look to prior awards in broadly similar cases to
guide quantum, but must not apply those awards slavishly. The purpose is to ensure
consistency and predictability in non-pecuniary awards while leaving room for the
court’s discretion in the particular facts of the case.
This is in line with general doctrine: e.g., as described in the Norton Rose Fulbright “Big
Read” commentary: “The courts generally look to past awards in cases with similar
circumstances … but previous awards are merely a guide and are not to be followed
slavishly.” Norton Rose Fulbright+2Law Library+2
, In the SCA judgment itself, the court reiterated that reliance on past awards must be in
“broadly similar in all material respects” cases. Studocu+1
2. Comparable awards must be adjusted for time, facts and severity.
When using comparative awards, the court must adjust for inflation, changed social
values or economic environment, and must take into account differences in severity of
injury, age, duration of suffering, prognosis, etc. The SCA judgment criticised the court a
quo’s award for not sufficiently anchoring itself in the precedents and/or failing to
properly compare the facts with those precedents.
For example, the comment: “The court looked at previous awards in similar cases …
those awards provided a range of R1.2 million to R2.2 million for similar brain injuries.”
Norton Rose Fulbright+1
The SCA emphasised that the facts of each case must govern: “each case must be
decided on its own facts.” Norton Rose Fulbright+1
3. The court should articulate clearly how it arrived at the figure.
The SCA emphasised the need to link the factual features of the claimant’s situation
(severity of injury, pain, loss of amenities, prognosis) with the quantum selected and
how previous awards were adjusted. In the present judgment the SCA found that the
court a quo gave insufficient weight to the claimant’s lack of awareness (i.e., in a
vegetative/unconscious state) and thus mis-applied the comparative awards framework.
SAFLII+1
4. Ensure the award remains compensatory and not punitive or enrichive.
The SCA reaffirmed that general damages awards must aim at compensation (solatium)
rather than profit or punishment. The court a quo must ensure the amount is fair to
both parties: just to the claimant, but not so large as to be unjust to the defendant. This
normative principle underpins the use of comparative awards as guides. The
commentary (Big Read) captured this:
“The court has a wide discretion … Even though money cannot perfectly compensate for losses
… the courts have developed guidelines … neither special nor general damages are meant to
enrich the plaintiff.” Norton Rose Fulbright+1
The SCA in this case underscored that given claimants who lack awareness cannot benefit from
the award in the way the law envisages for pain/suffering/amenities, the court a quo should
have been more cautious. Financial Institutions Legal Snapshot+1
5. In cases of severely injured or brain-injured claimants the “twilight” concept must be
carefully handled.
The SCA judgment returns to the concept of “twilight state” (i.e., a person with
diminished awareness but not totally unconscious) vs a “vegetative” or unconscious
[Course title]
, Exam (elaborations)
LPL4802 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 30
October 2025 Institution
University Of South Africa (Unisa)
Course
Law of Damages (LPL4802)
LPL4802 October November Portfolio (COMPLETE ANSWERS) Semester 2 2025 - DUE 30 October
2025; 100% TRUSTED Complete, trusted solutions and explanations
QUESTION 1: NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO PERSONALITY)
Study the attached judgment, MEC for Health, Gauteng Provincial Government v AAS obo
CMMS (401/2023) [2025] ZASCA 91 (20 June 2025), and answer the questions that follow. Your
response must be written in essay format. Each substantive point you make, when supported by
relevant legal authority, will carry a value of two (2) marks. 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. (15
marks) 1.2How should general damages be assessed in cases involving unconsciousness?
Support your answer with the relevant authority as cited in the prescribed textbook. (10 marks)
[25 marks] LPL 4802_OCT/NOV EXAM Page 5 of 9 1.1 How the court a quo should have
approached comparable cases when assessing general damages
In the SCA judgment the majority emphasised the correct approach when assessing general
damages (i.e. non-pecuniary loss: pain and suffering, loss of amenities of life, etc). The following
key points emerge:
1. Reference to comparable awards is permissible but not determinative.
The judgment affirms that courts may look to prior awards in broadly similar cases to
guide quantum, but must not apply those awards slavishly. The purpose is to ensure
consistency and predictability in non-pecuniary awards while leaving room for the
court’s discretion in the particular facts of the case.
This is in line with general doctrine: e.g., as described in the Norton Rose Fulbright “Big
Read” commentary: “The courts generally look to past awards in cases with similar
circumstances … but previous awards are merely a guide and are not to be followed
slavishly.” Norton Rose Fulbright+2Law Library+2
, In the SCA judgment itself, the court reiterated that reliance on past awards must be in
“broadly similar in all material respects” cases. Studocu+1
2. Comparable awards must be adjusted for time, facts and severity.
When using comparative awards, the court must adjust for inflation, changed social
values or economic environment, and must take into account differences in severity of
injury, age, duration of suffering, prognosis, etc. The SCA judgment criticised the court a
quo’s award for not sufficiently anchoring itself in the precedents and/or failing to
properly compare the facts with those precedents.
For example, the comment: “The court looked at previous awards in similar cases …
those awards provided a range of R1.2 million to R2.2 million for similar brain injuries.”
Norton Rose Fulbright+1
The SCA emphasised that the facts of each case must govern: “each case must be
decided on its own facts.” Norton Rose Fulbright+1
3. The court should articulate clearly how it arrived at the figure.
The SCA emphasised the need to link the factual features of the claimant’s situation
(severity of injury, pain, loss of amenities, prognosis) with the quantum selected and
how previous awards were adjusted. In the present judgment the SCA found that the
court a quo gave insufficient weight to the claimant’s lack of awareness (i.e., in a
vegetative/unconscious state) and thus mis-applied the comparative awards framework.
SAFLII+1
4. Ensure the award remains compensatory and not punitive or enrichive.
The SCA reaffirmed that general damages awards must aim at compensation (solatium)
rather than profit or punishment. The court a quo must ensure the amount is fair to
both parties: just to the claimant, but not so large as to be unjust to the defendant. This
normative principle underpins the use of comparative awards as guides. The
commentary (Big Read) captured this:
“The court has a wide discretion … Even though money cannot perfectly compensate for losses
… the courts have developed guidelines … neither special nor general damages are meant to
enrich the plaintiff.” Norton Rose Fulbright+1
The SCA in this case underscored that given claimants who lack awareness cannot benefit from
the award in the way the law envisages for pain/suffering/amenities, the court a quo should
have been more cautious. Financial Institutions Legal Snapshot+1
5. In cases of severely injured or brain-injured claimants the “twilight” concept must be
carefully handled.
The SCA judgment returns to the concept of “twilight state” (i.e., a person with
diminished awareness but not totally unconscious) vs a “vegetative” or unconscious
