WeeklySA_AdminPRINCIPLE: Appeal Court restores long-standing rule requiring lump-sum payouts for future medical care to victims of medical negligence – instead of leaving them ‘at the mercy of failing state healthcare’…
By Tania Broughton
The ruling restores the application of South Africa’s “once and for all” rule, which requires that all damages — past and future — be claimed in a single action and awarded as a lump sum.
In 2020. The late ex-finance minister Tito Mboweni warned against the risk of rising medical malpractice claims against the state – then sitting at nearly R100 billion.
In a unanimous judgment written by Justice Ashton Schippers, the SCA rejected an attempt to replace lump-sum compensation with a system requiring injured patients to receive future treatment at public hospitals instead of being paid damages in cash.
The ruling restores the application of South Africa’s “once and for all” rule, which requires that all damages — past and future — be claimed in a single action and awarded as a lump sum.
The (overturned) order would have created unequal treatment between victims of negligence in private and public hospitals. A child
rendered quadriplegic through negligence at a private hospital
would be entitled to a lump-sum award, while a similarly injured child in a public hospital would be denied that right…
The case concerned a child born in December 2011 who suffered severe and permanent disabilities as a result of negligence during birth at a public hospital in the Eastern Cape. Evidence before the court showed that the child cannot stand, walk or sit independently and is virtually blind.
R3.4 billion payouts for negligence
The Eastern Cape MEC for Health argued that the child’s future medical needs could be adequately met within the public healthcare system. The department contended that large lump-sum payouts were placing unsustainable pressure on provincial health budgets and that public institutions could provide care at significantly lower cost than private providers.
Economist Andrew Donaldson, formerly of National Treasury and the Department of Finance, testified in the high court that medical negligence claims were rising faster than available state resources. Sean Fratchet of the Eastern Cape health department’s integrated budget planning unit told the court the department had settled claims totalling R3.4 billion between 2014 and 2021.
There was also evidence about alleged misconduct by some attorneys who failed to establish court-ordered trusts to properly administer compensation paid to successful claimants.
Relying on these concerns, Judge Robert Griffiths in the Bhisho High Court held that the “once and for all” rule offended the Constitution and the Bill of Rights. In what he described as a development of the common law, he ordered the MEC to provide the child’s future medical treatment at local state hospitals instead of paying the full lump sum claimed. The order effectively reduced the claim by about R7 million.
The SCA described that ruling as “unsound” and warned that courts should not drastically recast established principles of law without considering broader consequences.
Justice Schippers held that reforming the law of damages is a policy-laden exercise best left to the legislature, not the judiciary. “So drastic a reform, in my view, should not be made by judges,” he said.
The court emphasised that the “once and for all” rule serves important purposes, including finality and legal certainty. It prevents ongoing litigation about the adequacy or quality of future care and ensures that victims are not forced back to court if the state fails to provide promised services.
Unequal treatment
The SCA found that the high court had failed to consider the wider social and economic consequences of abolishing the rule in a single case.
Justice Schippers pointed out that the order would create unequal treatment between victims of negligence in private and public hospitals. A child rendered quadriplegic through negligence at a private hospital would be entitled to a lump-sum award, while a similarly injured child in a public hospital would be denied that right. “The consequences of this are devastating,” he said, noting that many cerebral palsy cases in public hospitals arise from staff negligence at those same facilities that would be required to provide the future care.
The court further held that the high court’s order undermined the child’s constitutional rights, including dignity and the best interests of the child. By compelling the guardian to rely on state institutions, the order deprived the family of the freedom to choose how and where the child’s care should be obtained.
Vagaries of state
Instead, the child’s future was left to what Justice Schippers described as the “vagaries of the state” — the very system that had caused the harm.
The SCA also found insufficient evidence that provincial hospitals were capable of delivering the specialised care required at a reasonable standard. There was a real risk that essential services might not be secured.
“A court cannot grant remedies based on hope, goodwill or discretion,” Justice Schippers said. The high court’s order created no enforceable right to payment or guaranteed treatment, shifted the risk from the wrongdoer to the victim, and exposed a vulnerable child to possible systemic failure.
On allegations of attorney misconduct, the SCA held that such issues fall within the jurisdiction of the Legal Practice Council and the courts and were not relevant to determining the appropriate remedy in this matter. Upholding the appeal, the SCA set aside the high court order and referred the matter back for determination of the appropriate lump sum for future medical and related care. It also directed that a trust be established to administer the funds in the child’s best interests.
The judgment reinforces the principle that victims of medical negligence are entitled to full and final compensation — and that fundamental changes to damages law must come from Parliament, not the courts. – GroundUp
