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.
