QUESTION 1
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO
PERSONALITY)
1.1 Court’s Approach to Comparable Cases (Essay Format)
When assessing general damages, courts typically use previous comparable cases
for guidance (1). In the majority judgment of MEC for Health, Gauteng Provincial
Government v AAS obo CMMS (401/2023) [2025] ZASCA 91 (20 June 2025), the
Supreme Court of Appeal (SCA) held that trial courts should not slavishly follow
previous awards but must engage in a careful evaluation of the comparability of facts
and the unique circumstances of each case (2). The mere mechanical comparison
with older cases may result in an improper exercise of judicial discretion (3). The
correct approach, the majority indicated, is to look at the underlying facts: the extent
of injuries, the claimant’s condition, and the probable impact on the claimant’s life (4).
As stated in Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A), a court making
an award may have regard to earlier decisions merely to establish a general pattern,
while retaining flexibility to accommodate unique factual distinctions (5). Applying
that principle, the majority emphasized that prior decisions offer guidance, but the
real test involves factoring in the totality of the claimant’s injuries and the facts that
make a case sufficiently different (6). The SCA cautioned that the quantum must be
tailored to the case at hand, by considering the personal circumstances of the
plaintiff, the seriousness of injuries, pain, suffering, and the amount already awarded
under other heads (7).
,Consequently, the majority held that the high court in the matter a quo ought to have
done more than merely list amounts furnished in older judgments. It should have
critically appraised each case, highlighted relevant similarities, such as the type of
injuries or level of unconsciousness, and demonstrated how those analogies or
distinctions shaped the final figure (8). Because no case is factually identical, the
mere reference to large sums in prior judgments reveals no immediate formula.
Instead, the aim is consistency, moderated by individual justice and fairness (9).
1.2 Assessment of General Damages in Cases Involving Unconsciousness
The prescribed textbook, Visser & Potgieter Law of Damages 3 ed 2012, at pages
112–113, addresses the difficulty of awarding general damages (non-patrimonial
loss) for unconscious claimants (10). The key principle is whether the plaintiff’s
unconscious state divests him of the subjective element of pain and suffering or
awareness of loss of amenities of life (11). Generally, “pain and suffering”
presupposes consciousness, whereas “loss of amenities” can be approached more
objectively (12). Where the injured party is wholly unconscious or in a “persistent
vegetative state,” certain courts have found no true legal justification to award
compensation for the subjective element of pain and suffering, because
consciousness is missing (13).
However, courts traditionally make a nominal or reduced award if some twilight or
partial awareness remains (14). According to the majority in AAS obo CMMS, if the
child is entirely unaware of his condition, awarding large sums for intangible loss
where no real functional benefit can be derived, may not be warranted (15).
Therefore, the so-called “Collins approach” sees no reason for awarding general
damages to a completely unconscious plaintiff, since the fundamental object—
namely consolation and solace—is unattainable (16). If the plaintiff is proved to be
partially aware, a limited award may apply based on such twilight moments (17).
That stance finds support in the textbook’s distinction between the subjective and
, objective components, ensuring that money is used, if at all, to alleviate or
compensate for real, experienced suffering (18).
[25 marks]
-----------------------------------------------
QUESTION 2
QUANTUM OF DAMAGES AND SATISFACTION FOR NON-PATRIMONIAL LOSS
(INJURY TO PERSONALITY)
2.1 Combining Claims for Pain and Suffering with Loss of Amenities of Life
In principle, pain and suffering and loss of amenities of life are two distinct heads of
non-patrimonial damages (19). According to the textbook (Visser & Potgieter Law of
Damages at pages 111–112), “pain and suffering” relates primarily to physical
discomfort, mental distress, or anxiety that the injured person experiences (20). In
contrast, “loss of amenities” refers to the reduced capacity to participate in the
normal activities and pleasures of life (21). Courts often treat them together for
convenience and award a single global sum, but in matters of complexity (e.g.,
disputed consciousness), the law better serves justice by allocating some measure
for each if feasible (22). The SCA majority in MEC for Health, Gauteng Province v
AAS obo CMMS cautioned that lump-sum awards may obscure the true extent of an
unconscious plaintiff’s intangible loss or the absence thereof (23).
Separating them clarifies whether the plaintiff still subjectively feels pain (i.e., partial
or full consciousness) requiring a monetary solace, as opposed to the purely
objective dimension of “loss of ordinary life amenities”—like inability to walk, dance,
or lead a normal life. This distinction is crucial to avoid awarding compensation for an
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY TO
PERSONALITY)
1.1 Court’s Approach to Comparable Cases (Essay Format)
When assessing general damages, courts typically use previous comparable cases
for guidance (1). In the majority judgment of MEC for Health, Gauteng Provincial
Government v AAS obo CMMS (401/2023) [2025] ZASCA 91 (20 June 2025), the
Supreme Court of Appeal (SCA) held that trial courts should not slavishly follow
previous awards but must engage in a careful evaluation of the comparability of facts
and the unique circumstances of each case (2). The mere mechanical comparison
with older cases may result in an improper exercise of judicial discretion (3). The
correct approach, the majority indicated, is to look at the underlying facts: the extent
of injuries, the claimant’s condition, and the probable impact on the claimant’s life (4).
As stated in Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A), a court making
an award may have regard to earlier decisions merely to establish a general pattern,
while retaining flexibility to accommodate unique factual distinctions (5). Applying
that principle, the majority emphasized that prior decisions offer guidance, but the
real test involves factoring in the totality of the claimant’s injuries and the facts that
make a case sufficiently different (6). The SCA cautioned that the quantum must be
tailored to the case at hand, by considering the personal circumstances of the
plaintiff, the seriousness of injuries, pain, suffering, and the amount already awarded
under other heads (7).
,Consequently, the majority held that the high court in the matter a quo ought to have
done more than merely list amounts furnished in older judgments. It should have
critically appraised each case, highlighted relevant similarities, such as the type of
injuries or level of unconsciousness, and demonstrated how those analogies or
distinctions shaped the final figure (8). Because no case is factually identical, the
mere reference to large sums in prior judgments reveals no immediate formula.
Instead, the aim is consistency, moderated by individual justice and fairness (9).
1.2 Assessment of General Damages in Cases Involving Unconsciousness
The prescribed textbook, Visser & Potgieter Law of Damages 3 ed 2012, at pages
112–113, addresses the difficulty of awarding general damages (non-patrimonial
loss) for unconscious claimants (10). The key principle is whether the plaintiff’s
unconscious state divests him of the subjective element of pain and suffering or
awareness of loss of amenities of life (11). Generally, “pain and suffering”
presupposes consciousness, whereas “loss of amenities” can be approached more
objectively (12). Where the injured party is wholly unconscious or in a “persistent
vegetative state,” certain courts have found no true legal justification to award
compensation for the subjective element of pain and suffering, because
consciousness is missing (13).
However, courts traditionally make a nominal or reduced award if some twilight or
partial awareness remains (14). According to the majority in AAS obo CMMS, if the
child is entirely unaware of his condition, awarding large sums for intangible loss
where no real functional benefit can be derived, may not be warranted (15).
Therefore, the so-called “Collins approach” sees no reason for awarding general
damages to a completely unconscious plaintiff, since the fundamental object—
namely consolation and solace—is unattainable (16). If the plaintiff is proved to be
partially aware, a limited award may apply based on such twilight moments (17).
That stance finds support in the textbook’s distinction between the subjective and
, objective components, ensuring that money is used, if at all, to alleviate or
compensate for real, experienced suffering (18).
[25 marks]
-----------------------------------------------
QUESTION 2
QUANTUM OF DAMAGES AND SATISFACTION FOR NON-PATRIMONIAL LOSS
(INJURY TO PERSONALITY)
2.1 Combining Claims for Pain and Suffering with Loss of Amenities of Life
In principle, pain and suffering and loss of amenities of life are two distinct heads of
non-patrimonial damages (19). According to the textbook (Visser & Potgieter Law of
Damages at pages 111–112), “pain and suffering” relates primarily to physical
discomfort, mental distress, or anxiety that the injured person experiences (20). In
contrast, “loss of amenities” refers to the reduced capacity to participate in the
normal activities and pleasures of life (21). Courts often treat them together for
convenience and award a single global sum, but in matters of complexity (e.g.,
disputed consciousness), the law better serves justice by allocating some measure
for each if feasible (22). The SCA majority in MEC for Health, Gauteng Province v
AAS obo CMMS cautioned that lump-sum awards may obscure the true extent of an
unconscious plaintiff’s intangible loss or the absence thereof (23).
Separating them clarifies whether the plaintiff still subjectively feels pain (i.e., partial
or full consciousness) requiring a monetary solace, as opposed to the purely
objective dimension of “loss of ordinary life amenities”—like inability to walk, dance,
or lead a normal life. This distinction is crucial to avoid awarding compensation for an
