When a medical negligence claim brought for a child succeeds — most often in cerebral palsy matters arising from complications at birth — the court will usually order that the award be protected, generally through the creation of a trust. For many parents this comes as a surprise, and sometimes as a source of real distress. A mother who has carried the burden of her child’s care for years, and who brought the claim, may understandably feel that the compensation should be paid to her. This article explains why our courts order trusts in these matters, what the trust does in practice, and why it is not a reflection on any parent.
Whose money is the award?
A parent who sues a hospital or the Member of the Executive Council for Health does so “on behalf of” the child. The child is the injured party, and in law the award belongs to the child alone. That is not a technicality. The largest part of an award in a cerebral palsy matter is calculated, item by item and on expert evidence, to pay for the child’s future care: physiotherapy, occupational and speech therapy, operations, medication, specialised equipment, home adaptations and nursing, often over several decades. The award is, in a real sense, the child’s lifetime of care converted into a single sum of money paid today. Our courts have made this plain in their orders.
The court’s duty to protect awards made to children
South African courts retain a legal oversight role wherever damages are awarded to a minor or to an adult who lacks the capacity to manage a large sum. The court in the B.L.M obo K.M v MEC for Health, Gauteng [2025] ZAGPJHC 1350 matter described a child in this position as being among “the most vulnerable members of our society”. Because a child cannot manage money and because the sum must last for the whole of the child’s life, the court is required in every such case to satisfy itself that the award will be properly protected. This is not a discretion exercised against a particular family; it is the standard position in our law.
The leading authority is the Full Court decision In re: Protection of Certain Personal Injury Awards 2022 (6) SA 446 (GP), which laid down detailed guidelines. In every matter involving a vulnerable claimant, the court must choose between two protective mechanisms: the appointment of a curator bonis (a court-appointed administrator of the funds) or the creation of a trust. An independent curator ad litem is ordinarily appointed to investigate and to recommend which mechanism will best serve the injured person’s interests, and the court must be given full information before it sanctions either. The test, in every case, is a single one: what will properly and effectively manage the award in the interests of the injured child.
In practice, this means that where a minor or a person unable to manage their own affairs is involved, a court will generally not grant a settlement order or make an award of damages unless proper provision has been made for the protection of the funds, usually through the establishment of an appropriate trust. The requirement for the trust and the manner in which the funds are to be administered are typically incorporated into the court order itself, so that the court is satisfied that the beneficiary’s interests are properly protected before the award is made.
What the trust means in practice
A trust created under a court order in a medical negligence matter is not an ordinary family trust. Its terms are approved by the court, the powers and duties of the trustee are spelled out in the trust deed and in the court order itself, and the trustee is supervised by the Master of the High Court and must account for what is done with the money. The trustee’s remuneration must be disclosed to and sanctioned by the court, and the trust exists for one purpose only: the benefit of the child.
For the family, day-to-day life continues. The parent remains the child’s caregiver and guardian. What changes is that the money is administered by the trustee, who pays for the child’s needs as they arise: therapy, equipment, treatment, care, and the reasonable costs of the care that parents themselves provide. A parent does not have to fund the child’s needs and hope for reimbursement; the trust is there precisely so that the child’s needs are met, promptly and for as long as the child lives.
Why the protection matters
The reason for all of this is a hard one and it deserves to be stated plainly. The award is a once-off payment. It is calculated against the child’s life expectancy, which in cerebral palsy matters may be measured in decades. If the money were paid out freely and ran out — through poor investment, pressure from others, or simple misfortune — the child would have no second claim. The negligent hospital cannot be sued twice.
It is worth repeating: the court’s insistence on a trust is not a finding that a parent cannot be trusted. It is the law’s answer to the vulnerability of the child, applied in every case of this kind, whoever the parents are and however devoted their care.
This article is general information, not legal advice. Every matter depends on its own facts, and you should obtain advice on your specific circumstances.
