Are we seeing another paradigm shift in general damages awards?

Financial compensation is awarded for non-pecuniary loss (general damages) as a result of an injury caused by someone else’s negligence. An award of general damages is intended to compensate the injured party for pain and suffering, disfigurement, disablement and loss of amenities of life. South African courts have traditionally been rather conservative in relation to such awards when compared to other jurisdictions. However, we saw a paradigm shift in the courts’ approach toward awarding general damages in the early 2000s.

The shift was precipitated by the trial court’s decision on Marunga v Road Accident Fund 2003 (5) SA 164 (SCA). Mr Marunga suffered a fracture of the left femur which resulted in a 3.5cm shortening of the limb, a soft tissue injury in the chest area, and bruises on the forehead, left arm, and left knee. Having regard to the nature of the injury and the sequelae (which were not completely extraordinary) the court awarded an amount of R375 000.00 in respect of general damages. This award was at least five-fold what one could have expected to be awarded for such injuries at the time. While the Supreme Court of Appeal reduced the award to R175 000, ultimately the award remained substantially higher than what would usually have been awarded in similar circumstances at the time.

Shortly after the Marunga decision, the court seemed to follow suit in Delport NO vs Road Accident Fund  2003 (5) QOD A4-1 (T) where the court awarded an amount of R1 250 000.00 in respect of a tetraplegic plaintiff. Comparatively, in the case of Geldenhys NO v Road Accident Fund 2002 5 QOD A2-1 which was decided in the previous year the general damages award was R1 000 000 less for the same type of injury with similar sequelae.

Subsequent to Marunga and Delport, awards in respect of general damages have steadily increased. However such awards have, subsequent to this initial paradigm shift in 2003, been largely predictable. This certainty in respect of what courts may / should / will award in respect of general damages is important for a number of reasons. In the first instance, litigants have an idea of what a reasonable settlement of a matter ought to be. Defendants can also be confident when making tenders into court. More importantly, entities such as the state, private hospitals, and insurers who are often involved in litigation can put the necessary appropriate reserves in place when claims of this nature are first made. 

When one considers the general damages award in the recent case of MAT v The Minister of Police [2022] ZAGPPHC 813, it would appear that we may be seeing  another paradigm shift in our courts approach to general damages awards. In this case, the court made a  surprisingly large award of R2 000 000 for general damages resulting from an unlawful arrest and detention. In this case, the plaintiff remained incarcerated for two years and one month until the charges were withdrawn and he was released. The plaintiff testified that he was tattooed by force by the inmates, resulting in him contracting HIV. A clinical psychologist also testified that he developed severe depression. 

The award made in the MAT case follows on the similar case of Khedama v The Minister of Police 2022 JDR 0128 (KZD) which was decided earlier this year as well. In this case the court awarded R1 000 000.00 for damages suffered as a consequence of unlawful arrest and detention. 

The general damages awards handed down on in MAT and Khedama are exponentially higher than previous general damages awards in similar cases. Last year for example an amount of R340 000 was awarded for general damages in the case of Xakambana v Minister of Police 2021 JOL 49407 (ECM), where the facts were not materially different when compared to MAT and Khedama.

It is unknown whether the MAT decision is to be appealed. In the event of an appeal, the award may be reduced. However, even if the appeal court adopts a similar approach to that in Marunga, the appeal court would still be hard pressed to alter the award to one which is more akin to that in the Xakambana decision. Generally, damages awarded for unlawful arrest and detention are not as high when compared to awards made for bodily injury. We do suspect that the MAT and Khedama decisions have the potential to replicate the paradigm shift that we saw in 2003 – this cannot be good news to those entities who are prone to being litigated against.