13 February 2026
The Supreme Court of Appeal has ruled that damages for future medical expenses in state medical negligence cases must be paid as a lump sum and not through the provision of treatment at public hospitals. Photo: Ben Bezuidenhout via Wikimedia (CC BY-SA 4.0)
The Supreme Court of Appeal (SCA) has ruled that damages for future medical expenses in state medical negligence cases must be paid as a lump sum and not through the provision of treatment at public hospitals.
The unanimous judgment, written by Justice Ashton Schippers, overturns a Bhisho High Court order that had directed the Eastern Cape health department to provide ongoing treatment at state facilities instead of paying damages in cash.
Medical negligence claims against provincial health departments often involve children born with severe disabilities, including cerebral palsy. In recent years, some MECs have argued that future medical costs should not be paid as lump sums but instead be met through what has been described as a “voucher system” or “public health care remedy”, under which state facilities would provide treatment.
This is contrary to the settled “once and for all” rule in South Africa, which requires that all damages, past and future, be claimed in a single action and in a lump sum.
The SCA cautioned that “judges must not drastically recast an established principle of law”.
The case before the SCA concerned a child born in December 2011 who sustained severe disabilities as a result of negligence at birth.
There was evidence that the child, born in December 2011, cannot stand, walk or sit and is virtually blind.
The Eastern Cape MEC for Health argued that the child would be well cared for in the public health system, and that the “lump sum” damages claims for future medical expenses were negatively impacting provincial health departments’ budgets.
It was further argued that public institutions can provide future medical care at substantially lower costs than the private sector.
Economist Andrew Donaldson, who has held senior positions in national treasury and the department of finance, testified in the high court that medical claims were increasing faster than available resources.
Sean Fratchet, from the Eastern Cape health department’s integrated budget planning unit, testified that the department had settled claims totalling R3.4-billion between 2014 and 2021.
Other witnesses spoke about dodgy attorneys who did not set up court-ordered trusts for the proper administration of the pay outs.
In his ruling, Judge Robert Griffiths said the “once and for all rule” offended the Bill of Rights and the Constitution and, in “developing the common law”, he ordered that the MEC must cater for the child’s future medical needs at local state hospitals, shaving about R7-million off the claim.
The SCA set aside the order.
Justice Schippers, writing for the court, described the ruling as “unsound” and said the court had not considered the “wider consequences of its radical development of the law of damages”.
“So drastic a reform, in my view, should not be made by judges,” he said.
He said the “once and for all rule”, while not immune to criticism, was primarily aimed at giving closure and certainty for the parties and preventing ongoing litigation when disputes arise over the quality and availability of care.
“The high court, in a single case, abolished the rule in complete disregard of the impact of its order on other fundamental rights and without considering the social and economic effects of the order on cases of this kind nationally,” Justice Schippers said.
He said it resulted in differentiation between the claims of children rendered quadriplegics through medical negligence at birth in a private hospital and those who suffered the same at a public hospital.
“The former are entitled to claim damages in a lump sum while the latter, not. The consequences of this are devastating. This is because the real reason for the high incidence of children born with cerebral palsy in public hospitals in the [Eastern Cape] province is negligence by the staff at those hospitals, the same hospitals which have been ordered to provide the public healthcare remedy.”
Judge Schippers said the high court order also flew in the face of the right to dignity, with the guardian of the child being deprived of personal freedom to choose how, when and where the child should obtain future medical care. Instead, the child’s care is left to the “vagaries of the state”, which caused the harm in the first place.
“What this shows is that reforming the law of damages involves policy-laden decisions. These are legislative questions, not judicial ones.”
He said there was also insufficient evidence to show that the provincial hospitals were capable of providing the medical services the child required at a reasonable standard.
There was a real risk that the child would not be able to secure some essential services.
“A court cannot grant remedies based on hope, goodwill or discretion. The [high court] order creates no vested right to payment or future medical treatment and expenses. It shifts the risk from the wrongdoer to the victim.
“…It violates the child’s best interests. It creates uncertainty and exposes the child, who is vulnerable, to systematic failure by the department and deprives the child (and its guardians) of the financial autonomy the lump sum damages provide.”
On the allegations of misconduct against attorneys, the judge said this must be regulated through the Legal Practice Council and, ultimately, the courts, and was a non at issue in this matter.
Upholding the appeal, the SCA sent the matter back to the high court to determine the lump sum to be paid for future medical and related care and make an order for the creation of a trust to administer the money.