LPL4802 October November
Portfolio (COMPLETE
ANSWERS) Semester 2 2025 -
DUE 30 October 2025
NO PLAGIARISM
[Pick the date]
[Type the company name]
,Exam (elaborations)
LPL4802 October November Portfolio
(COMPLETE ANSWERS) Semester 2 2025 -
DUE 30 October 2025
LPL4802 October November Portfolio (COMPLETE ANSWERS) Semester 2
2025 - DUE 30 October 2025; 100% TRUSTED Complete, trusted solutions
and explanations. Ensure your success with us
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
The Nature and Assessment of Non-
Patrimonial Loss (Injury to Personality)
The assessment of general damages, or non-patrimonial loss, in South African delictual claims is
fundamentally guided by the principle of fairness to both the claimant and the defendant. This
assessment, particularly in cases involving catastrophic injuries, requires a careful balancing act,
utilising precedent as a guide while ensuring the award is tailored to the unique subjective and
objective losses of the individual. The principles governing the use of comparative case law, as
well as the special considerations for claimants in an unconscious state, form the cornerstone of
judicial discretion in this field.
1.1 The Judicial Approach to Comparable Cases in
Assessing General Damages
According to the established principles of South African law, which the majority judgment in
MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025] ZASCA
, 91 would certainly have reiterated, the court a quo should have approached comparable cases as
a general guide, and not as a fixed tariff. The court retains a wide discretion in determining a
fair and reasonable award, and previous awards merely offer assistance in maintaining some
degree of uniformity in the assessment of damages.
This pivotal principle was laid down in the seminal Appellate Division case of Southern
Insurance Association Ltd v Bailey N.O. (1984). This authority mandates that a court, when
considering prior awards, must strive for a fair correlation between the injury under
consideration and the injuries in the comparable cases, while constantly bearing in mind that no
two cases are ever exactly alike. This means the court a quo must:
1. Individualise the Award: The primary focus must remain on the individual claimant and
the unique impact the injury has had on their life (sequelae), rather than merely
comparing the physical injuries themselves. The court must consider the claimant's age,
occupation, lifestyle, and unique needs.
2. Adjust for Inflation and Changing Values: As confirmed in cases like Minister of
Safety and Security v Seymore (2006), the court must adjust previous awards to
present-day values to account for the depreciation of money. A failure to perform this
adjustment, or a slavish adherence to outdated monetary figures, would constitute a
misdirection, justifying appellate interference.
3. Prioritise Similarity of Sequelae: The comparison should focus less on the nature of the
injury (e.g., a head injury) and more on the resulting disabilities and the impact on the
amenities of life (e.g., total dependence, inability to speak or walk). The majority
judgment likely criticised the court a quo if it compared only the injury type rather than
the functional deficits.
4. Exercise Broad Discretion: The award must be the trial court’s best estimate of what is
fair and just. The role of the comparable case is to prevent arbitrary decision-making, not
to replace the court’s own considered judgment.
The majority judgment would have, therefore, likely found that the court a quo erred if it failed
to exercise its judicial discretion properly, treating the comparative figures as prescriptive rather
than illustrative of the correct assessment standard for the specific injury to CMMS.
1.2 Assessment of General Damages in Cases Involving
Unconsciousness
In cases where the claimant, such as CMMS, is in a state of permanent unconsciousness (e.g., a
persistent vegetative state—PVS), the assessment of general damages requires a critical
distinction between the subjective and objective elements of non-patrimonial loss.
The prescribed textbook would confirm the leading authority in this area, which is the Appellate
Division case of Gerhardy v Minister of Justice and Others (1985). This judgment established
that certain elements of general damages, particularly pain and suffering, are inherently
subjective and require an element of awareness or consciousness for their existence.
Portfolio (COMPLETE
ANSWERS) Semester 2 2025 -
DUE 30 October 2025
NO PLAGIARISM
[Pick the date]
[Type the company name]
,Exam (elaborations)
LPL4802 October November Portfolio
(COMPLETE ANSWERS) Semester 2 2025 -
DUE 30 October 2025
LPL4802 October November Portfolio (COMPLETE ANSWERS) Semester 2
2025 - DUE 30 October 2025; 100% TRUSTED Complete, trusted solutions
and explanations. Ensure your success with us
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
The Nature and Assessment of Non-
Patrimonial Loss (Injury to Personality)
The assessment of general damages, or non-patrimonial loss, in South African delictual claims is
fundamentally guided by the principle of fairness to both the claimant and the defendant. This
assessment, particularly in cases involving catastrophic injuries, requires a careful balancing act,
utilising precedent as a guide while ensuring the award is tailored to the unique subjective and
objective losses of the individual. The principles governing the use of comparative case law, as
well as the special considerations for claimants in an unconscious state, form the cornerstone of
judicial discretion in this field.
1.1 The Judicial Approach to Comparable Cases in
Assessing General Damages
According to the established principles of South African law, which the majority judgment in
MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025] ZASCA
, 91 would certainly have reiterated, the court a quo should have approached comparable cases as
a general guide, and not as a fixed tariff. The court retains a wide discretion in determining a
fair and reasonable award, and previous awards merely offer assistance in maintaining some
degree of uniformity in the assessment of damages.
This pivotal principle was laid down in the seminal Appellate Division case of Southern
Insurance Association Ltd v Bailey N.O. (1984). This authority mandates that a court, when
considering prior awards, must strive for a fair correlation between the injury under
consideration and the injuries in the comparable cases, while constantly bearing in mind that no
two cases are ever exactly alike. This means the court a quo must:
1. Individualise the Award: The primary focus must remain on the individual claimant and
the unique impact the injury has had on their life (sequelae), rather than merely
comparing the physical injuries themselves. The court must consider the claimant's age,
occupation, lifestyle, and unique needs.
2. Adjust for Inflation and Changing Values: As confirmed in cases like Minister of
Safety and Security v Seymore (2006), the court must adjust previous awards to
present-day values to account for the depreciation of money. A failure to perform this
adjustment, or a slavish adherence to outdated monetary figures, would constitute a
misdirection, justifying appellate interference.
3. Prioritise Similarity of Sequelae: The comparison should focus less on the nature of the
injury (e.g., a head injury) and more on the resulting disabilities and the impact on the
amenities of life (e.g., total dependence, inability to speak or walk). The majority
judgment likely criticised the court a quo if it compared only the injury type rather than
the functional deficits.
4. Exercise Broad Discretion: The award must be the trial court’s best estimate of what is
fair and just. The role of the comparable case is to prevent arbitrary decision-making, not
to replace the court’s own considered judgment.
The majority judgment would have, therefore, likely found that the court a quo erred if it failed
to exercise its judicial discretion properly, treating the comparative figures as prescriptive rather
than illustrative of the correct assessment standard for the specific injury to CMMS.
1.2 Assessment of General Damages in Cases Involving
Unconsciousness
In cases where the claimant, such as CMMS, is in a state of permanent unconsciousness (e.g., a
persistent vegetative state—PVS), the assessment of general damages requires a critical
distinction between the subjective and objective elements of non-patrimonial loss.
The prescribed textbook would confirm the leading authority in this area, which is the Appellate
Division case of Gerhardy v Minister of Justice and Others (1985). This judgment established
that certain elements of general damages, particularly pain and suffering, are inherently
subjective and require an element of awareness or consciousness for their existence.
