South Africa: General Damages ....In General

Last Updated: 2 December 2011
Article by Deon Francis and Reshana Pillay

General damages is the broad term given to non-pecuniary loss such as pain and suffering, loss of amenities, emotional harm, etc and is awarded to a plaintiff as part of a compensatory damages to cover all those losses which are not easily quantified as opposed to percuniary damages, ie damages for harm to one's personality and physical integrity. As pointed out by the court in the case of Hendricks v President Insurance 1993 (3) SA 158 C the nature of the damages which are awarded make quantifying the award very difficult.

When awarding delictual damages, courts have to determine the difference between the present "financial state" of the plaintiff and the state he or she would have been in had the delict not occurred. Percuniary damages are quantifiable, whereas quantifying the award to be made in respect of non-percuniary damages is not as easily determined. The nature of non-pecuniary loss makes it difficult to assess or calculate an appropriate amount precisely and exactly. To quote the Appellate Division in Sandler v Wholesale Coal Suppliers, 1941 AD, 194 at 199:

"Though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty."

There is unfortunately no expert who can place an exact value to the abovementioned losses. The amount awarded for general damages lies within the discretion of our courts. The damages that are to be awarded should be assessed taking into account the age, sex, status, culture, lifestyle and the nature of the injury suffered as well as having regard to previous awards made for similar injures. Also, other factors which are often taken into account include the degree of pain suffered (the fact that pain is a subjective is taken into account, whether further surgery can be expected, whether the plaintiff has debilitating scarring, is unable to fend for him/herself and has a decreased life expectancy etc). Even with these guidelines awards for general damages, especially in the very recent past, are often arbitrary and out of kilter with the previous awards.

While a court may have complete discretion in its approach to assessing what amount to award, it must be cautious of restricting itself to only certain precedent cases. In the recent decision of Mpondo v Road Accident Fund [2011]JOL 27508 (ECG), it was held that in considering past awards in the assessment of general damages, it is vital that a proper basis for comparison must first be ascertained. The court should look at the pattern of awards made in comparable circumstances rather than a singular award made in respect of injuries similar to the case at hand. Often, parties (and the courts) make inaccurate comparisons when assessing general damages, resulting in wayward awards being made.

In the Mpondo case the trial court misdirected itself in its approach in assessing general damages to such an extent that the appeal court considered a fresh amount of damages to be awarded. The appeal court held that: "It is not enough to compare the general nature of injuries. All factors affecting the assessment of damages must be taken into account. Once it is established that the circumstances are sufficiently comparable, then only are such cases to be used as a general yardstick to assist the court in arriving at an award."

As indicated above, damages (both patrimonial and non-patrimonial) are awarded to place the victim in the same position that he or she would have been had the harm not occurred. Although the assessment of general damages is by its very nature subjective, one should try to maintain a degree of objectivity having regard to the principles as laid down in the Mpondo judgement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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