Law of Damages Assignment One

Student number: 63666596

Unique number: 758498

Due Date: 15 May 2021

A wrongful life claim is that type of claim which can be filed by the child or the
parent of that child in representative capacity or on behalf of the child, on the legal
basis that she or he was born with disability due to the negligent behaviour of a
medical practitioner or a physician who failed to take reasonable step or failed to
prevent the parent from terminating the pregnancy for eugenic factors or reasons.
Therefore the child have a claim against a health practitioner for leading life
associated with suffering because of disability which was not supposed to be born
at all but was born due to negligence of a medical practitioner1. There is difference
between wrongful life claim and wrongful birth claim is that, wrongful life claim is
instituted by or on behalf of a disabled child and not the parent in her personal
capacity.

In the case of Friedman v Glicksman the court defined a wrongful birth claim as an
action which will be based on the fact that if it was not for a medical practitioner’s
negligence the parent or the mother of the child was going to terminate the
pregnancy and because of that the medical practitioner will be responsible and will
be considered to have caused the birth of the defective child.2 A wrongful birth claim
can be defined as a cause of action which can be brought by parent alleging that
their procreative rights have been denied by the wrongful conduct of a medical
practitioner3.

Stretton states that, features of a wrongful life claim are that, if a proper diagnosis,
advice, abortion or sterilisation was made available to the parent who does not want
a child, or at least not a disabled child, the parent would have terminated or

1
I Giesen ‘The Use and Influence of Comparative Law in Wrongful Life Cases’ (2012) Volume 8
Utrecht Law Review Issue 2 page 37.
2
Friedman v Glicksman case.
3
Collins Elizabeth F ‘An Overview and Analysis; Prenatal Torts, Preconception Torts, Wrongful Life,
Wrongful Death and Wrongful Birth: Time for a New Framework’ (1984) 22 Journal of Family Law.
prevented the pregnancy, and the disabled child would not have been born at all4.
Therefore, the bases of this action, arise from a failure to advice accurately, test and
counsel the mother of the child on the particular foetal risk associated with that
pregnancy. This cause of action is premised on the fact that, but for the medical
practitioner or physician’s negligent failure to give proper advice to the parent
regarding foreseeable foetal risks and the testing procedures at disposal or failure by
a medical practitioner to administer those tests accurately, the parent was going to
reach a well informed decision in order to avoid birth of the disabled child and as a
result, a lifetime induced by disability could have been prevented5. However, it
should be noted that wrongful life as a cause of action can only be regarded in legal
systems where abortion is allowed or permitted or where abortion is not punishable
by law. For the wrongful life cause of action to succeed, the principle at law is that,
abortion should be allowed on embryopathic or eugenic grounds. Section 2 of the
Choice on Termination of Pregnancy Act6 provides that pregnancy can be
terminated If there is substantial risk that the foetus would suffer from a severe
physical or mental abnormality’ exists or is established and section 2(c)(i) provides
that if the birth of the child or continued pregnancy ‘would result in a severe
malformation of the foetus it can be terminated 7.

In most cases wrongful life as a cause of action arise through law of delict; however
it can also arise through the law of contract. In South Africa, for one to successfully
sue for delictual claim, all delictual elements should be satisfied. The plaintiff in a
wrongful life cause of action is required by the court to prove that the respondent,
like in our case a medical practitioner, failed negligently to warn or to diagnose the
plaintiff’s parent that the plaintiff will be born with a disability or impairment.
Damages are not awarded to the parent in wrongful life cause of action, but they are
awarded to the child for the suffering she has endured because of her disability. It
should be noted that although, this cause of action is an application by the plaintiff’s
child, at law the child cannot make a claim on behalf her parent since this can result
in a wrongful birth claim. If the child’s claim is based on delict she may claim for
general and special damages. Since it can be possible for wrongful life to arise due
4
Stretton, D “Harriton v Stephens: Waller v James Wrongful Life and the Logic of Non-Existence’’
(2006) 30 Melbourne University Law Review 348.
5
Rodgers op cit note 20 3at 716.
6
Choice on Termination of Pregnancy Act 92 of 1996.
7
Act 92 of 1996 2(c) (i).
to contract, it is important to take note that, in South Africa a contract is an obligatory
agreement between parties, and the requirements for a valid contract are that the
agreed parties must have intention to create an obligation, the parties must have
contractual capacity, and the performance between the parties must be possible and
legal. In South African legal system the basic rule for determining contractual
damages is that the sufferer may claim so as to be put in the economic position he
would have occupied if the contract had been properly performed8. The major reason
for damages in the law of contract is for compensation of the innocent party
especially for his or her financial loss. In the case of Administrator, Natal v Edouard
the court rejected a claim for suffering and pain and loss of amenities of life which
Edouard experienced because of the birth of the child9, the court disallowed the
claim arguing that damages arising from non-pecuniary losses will not be recovered
in an action which is based on contractual breach.

The concept of wrongful life and wrongful birth as cause of action was initially argued
in the case of Friedman v Glicksman where the cause of action was rejected by the
court. In this case Mrs Glicksman who was pregnant consulted gynaecology
specialist to get an advice whether her pregnant had a potential abnormal or was the
foetus disabled. Friedman, the gynaecologist told her that it was safe for her to have
the pregnancy which subsequently led to the birth of a disabled Alexander in 1991.
After the birth of Alexandra Mrs Glicksman alleged that given the fact that she was
given proper advice, she was going to enforce her rights in terms of section 3(c) of
the Abortion and Sterilisation Act 2 of 1975, which provides that a person can
terminate her pregnancy in the event that there is a serious risk that the child might
be seriously disabled. Mrs Glicksman in her representative capacity brought a claim
before the court for Wrongful life, where she was claiming for future loss of income
and general damages. Mrs Glicksaman also brought before the court a wrongful
cause of action in her own personal capacity where she was claiming for expenses
to maintain and rear her child, all future medical and hospital expenses. This action
was brought before the court in both delict and contract. Mrs Glicksman alleged that
the defendant’s negligence was a breach of his duty of care and the breach of the
agreement. The court held that the phrases which were used to describe these two

8
Robert Sharrock Business Transaction Law 5 ed (1999) at page 464.
9
Administrator , Natal v Edourd 1990 (3) SA 581 (D).
causes of action had certain ‘emotional and apparent value judgments which can
detract from a proper judicial approach’ of the issues raised10. In dismissing the
contractual action by Mrs Glicksman, the court held that it was trite law that an agent
could not act on behalf of a non-existent principal noting that legal personality
commences at birth and this could not be a contract for the benefit of a third party as
such party could only accept the benefit when it was no longer possible 11. The court
further held that it was not necessary to invoke the nasciturus fiction since
Alexander’s legal action was not lodged when the pregnancy was not terminated but
after she was born. Mrs Glickssman argued that as a mother if she is can be able to
prove that there was fault and causation there was no reason at law why her child
was not entitled to sue. In dismissing her delictual claim, the court held that ‘it would
be against public policy for courts to hold that it would be better for a party not to
have the unquantifiable blessing of life rather that have life in a marred way 12’. In
dismissing Mrs Glicksman’s action the court, reasoned along the lines of Dempsey J
in the case of Zepeda, where it was held that such a recognition in our administration
of justice can open doors for those disabled children who would be entitled to have a
claim against their parents, the court also went on to say the measure for damages
in this case were completely inconsistent with those measures which are allowed in
the law of delict. The court held that a mother can have a wrongful birth claim, but it
rejected the claim on behalf of the child for wrongful life, in its reason the court
further held that allowing such a claim will be contra bonos mores and it will be
against public policy because it called on the courts to hold that non-existence is
preferable to life in a disabled state. The court also rejected the idea that a medical
practitioner will be held liable for a child’s disabilities which are not caused by him or
her of which that medical practitioner is not responsible for.

In the Western Cape High Court in 2013, a claim for wrongful birth and wrongful life
was brought before the court, in this locus classicus case of H v Kingsbury Fetal
Assessment Centre, a child was born with Down Syndrome, this happened after the
mother of the child consulted Kingsbury Foetal Assessment centre for a prenatal
scan to be carried out. Unfortunately, the scan the foetal assessment centre was
wrongly interpreted wrongly by a staff member. Subsequently the Down syndrome

10
Glicksman.
11
Glicksman at 39 1143A-B.
12
Glicksman at 1142I-J.
child claimed for special damages. The special damages were for future and past
medical expenses and also general damages for loss of amenities of life and
disability. In this case the wrongful birth claim was successful, but wrongful life was
not successful. After that, Kingsbury Fetal Assessment Centre’s appealed to the
constitutional court where the court held that the child’s claim may be found to
potentially exist in South Africa .

In the case of Premier KwaZulu Natal v Sonny, the Supreme Court of Appeal
dismissed an appeal whereby KZN Premier was being held liable for damages which
were sustained by respondents and the claim was on medical negligence. The claim
was for payment of costs to maintain a child who was born with down’s syndrome .
their argument was that the hospital had failed to tell the communicate to them that
the child had a down’s synrome problem. They said the hospital negligently failed to
to conduct timeous chromosomal tests for timeous termination of pergnancy in line
with the Choice of Termination of Pregnancy Act 92 of 1996.The court held held
that medical staff of the hospital were negligent and KZN premier was responsible
and liable for the damages which were sustained. It went further on to say that there
was no contributory negligence by the second respondent because the primary
health clinic advice about on whether she was suppose have a second fetal scan.

In the case of Stewart v Botha, the case before the court was of both wrongful birth
claim and wrongful life claim. A son who was born with congenital defects instituted a
claim against a doctor who attended her mother’s pregnancy. Mrs Stewarts
instituted a wrongful birth claim in order to recover damages caused by the birth of
her son which includes cost of maintenance special schooling and future and past
medical expenses. She went on to claim wrongful life claim damages under the
same heads. The court held that allowing a wrongful life claim will open floodgates
for disabled children to take to court their parents for failing to terminate their
pregnancy whilst they knew that the child will be born with disability. The court
rejected this argument by saying that decision not to remove or terminate pregnancy
is a constitutional right of a parent to make regarding reproduction; the court further
went on to say that it was completely a separate matter whether the child had a
claim against the doctor concerned13. The court held that in cases of wrongful life

13
Stewart v Botha 2007 par 259.
claim, the challenge or the difficulty is not only in calculating damage but also the
also on whether or not a child in reality suffered any damage14

Foreign case law although it’s not authoritative source of law in South Africa,
however decision from foreign jurisdiction might be persuasive nature. In Australia
first wrongful life case was held in the case of Harriton v Stephens. In this case High
Court of Australia rejected the wrongful life cause of action arguing that its
recognition is not possible as the calculation of damages will require one to compare
existence with non-existence which is not possible and it is contrary to reasonable
and sound legal policy. The court further held that a medical practitioner or a doctor’s
alleged obligation and duty of care to the unborn child should not always be
recognised because sometimes that duty could not be compatible with the medical
practitioner’s existing duty of care; the court further concluded that disability just like
life is not actionable and consequently the claim failed.

In a nutshell basing on the case of Friedman and Kingsbury Fetal Assessment

Centre, Mrs Vilakazi can successfully claim a wrongful birth claim, but she might
not succeed in wrongful life claim.

14
Stewart v Botha 2007 par 261.
Bibliography

Potgieter JM, Steynberg L and Floyd TB Visser & Potgieter’s Law of Damages 3rd
ed (Juta 2012)

Friedman v Glicksman 1996 (1) SA 1134 (W)

Stewart v Botha 2008 (6) SA 310

H v Fetal Assessment Centre 2015 2 SA 193 (CC),

Premier KwaZulu Natal v Sonny 2011 (3) SA 424 (SCA)

 Grading Rubric for Assignment 01
Possible scores

Criteria 0-1 2-3 4 5

Organization Writing lacks logical
organization. No paragraphs
to indicate flow of reasoning
Writing is coherent and
logically organized. Clear
paragraphing
Writing is coherent and
logically organized with
transitions used between
ideas and paragraphs to create
coherence. Overall unity of
ideas is present.
Writing shows high degree of attention
to logic and reasoning of points. Unity
clearly leads the reader to the
conclusion and stirs thought regarding
the topic.

0-3 4-6 7-8 9-10

Level of Content Shows some thinking and
Reasoning. No reference
made to case law and
scholarly articles
Most ideas referenced, but
lack cogent reasoning and
balance of thought
Most ideas correctly
referenced and followed by
clear reasoning
Content indicates synthesis of ideas, in-
depth analysis and evidences original
thought and support for the topic.
Referencing in accordance with style
and footnotes are part of writing.

0-1
Development Main points lack detailed
development. Ideas are
vague with little evidence of
critical thinking.
0-1
Grammar & Spelling, punctuation, and
grammatical errors create
Mechanics distraction, making reading
difficult; fragments, comma
splices, run-ons evident.
Errors are frequent.
2-3
Main points are present with
limited detail and
development. Reference is
made to the subject
Damages in general.
2-3
Most spelling, punctuation,
and grammar correct allowing
reader to progress though
essay. Some errors remain.
4 5
Main points well developed Main points well developed with high
with quality supporting details quality and quantity support. Most
and quantity. A clear ideas are developed, and reference to
understanding where the the subject damages is clear and
concept fits in the field of logical.
damages
4 5
Essay has few spelling, Essay is free of distracting spelling,
punctuation, and grammatical punctuation, and grammatical errors;
errors allowing reader to absent of fragments, comma splices,
follow ideas clearly. Very and run-ons.
few fragments or run-ons.
 RESULTS
Total = 20 / 25 (80%)