Grading Rubric for Assignment 01

Possible scores

Criteria 0-1 2-3 4

Organization Writing lacks logical
organization. No paragraphs
to indicate flow of reasoning
Writing is coherent and Writing is coherent and logically Writing
logically organized. organized with transitions used attention
Clear paragraphing between ideas and paragraphs to of point
create coherence. Overall unity of reader to
ideas is present. thought

0-3 4-6 7-8

Level of Shows some thinking and Most ideas referenced, Most ideas correctly referenced Content
Content Reasoning. No reference but lack cogent reasoning and followed by clear ideas, i
made to case law and and balance of thought reasoning evidence
scholarly articles support
Referenc
style an
writing.

0-1 2-3 4
Development Main points lack detailed Main points are present Main points well developed with Main p
development. Ideas are vague with limited detail and quality supporting details and with hig
with little evidence of critical development. Reference is quantity. A clear understanding support.
thinking. made to the subject where the develope
Damages in general. concept fits in the field of damages subject
logical.

0-1 2-3 4
Grammar & Spelling, punctuation, and Most spelling, punctuation, Essay has few spelling, Essay i
grammatical errors create and grammar correct punctuation, and grammatical spelling
Mechanics distraction, making reading allowing reader to progress errors allowing reader to follow gramma
difficult; fragments, comma though essay. Some errors ideas clearly. Very few fragments fragmen
splices, run-ons evident. remain. or run-ons. run-ons.
Errors are frequent.
LAW OF DAMAGES
ASSIGNMENT 1
According to South African law, law of delict is based upon a set of general principles. In
order to establish liability the elements of delictual liability, being conduct, harm,
causation, fault and wrongfulness should take place. 1 Claims for wrongful pregnancy or
wrongful conception and wrongful birth have been accepted in South African law, having
been found to fulfil the requirements for delictual liability. 2 Wrongful life claims have
been rejected by our courts time and again 3 as being contro bonis mores.
Wrongful pregnancy may be defined as a situation in which a child is conceived to a
parent or parents who had received negligent advice or treatment from an expert aimed
at and expected to prevent a pregnancy or aimed at confirming the parent's or parents'
inability to procreate. The legal action is instituted against the expert usually a medical
practitioner whose negligent treatment or advice causally contributed to the pregnancy 4.
At the time when humankind lacked the knowhow and ability to manipulate their
procreative functions, the law was silent. The choices that were opened up through
science brought with them responsibilities, and the law has assumed much greater
significance in regulating reproduction. The right to make decisions regarding
reproduction is now entrenched in the South African Constitution 5
The medical profession plays an important role in ensuring the realisation of this right.
Those using contraceptives expect these products to be free from defects and safe for
use, and they will use them under expert medical guidance in the hope of effectively
avoiding pregnancy.6Most literate persons will know that contraceptive methods are not
full proof and the possibility of failure could be anticipated.
In the event of a pregnancy, despite the use of contraceptives, it would be very difficult
to prove a causal connection between any act or omission on the part of any one person
and the resultant pregnancy.
The chances of successfully laying the blame for an unwanted pregnancy on a medical
practitioner are much larger where the latter is approached for sterilisation. Here the
intention is clearly to avoid pregnancy at all cost; the person who undertakes to render
the sterilisation service is easily identifiable and clearly bears the responsibility of
exercising reasonable care and applying reasonable skill to ensure success. 7 However,

1 Loubser at al, The law of delict

2 Van Niekerk wrongful life claims: A failure to develop the common law 202 23? stellenbosch law review
3 Friedman v Glicksman 1966(1) SA 1134 (W)
4 Mason JK. The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction. Cambridge: Cambridge University
Press, 2007.
5 Constitution of the Republic of South Africa, 1996, section 12(2)
6 Mason JK. The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction. Cambridge: Cambridge University
Press, 2007.
7 Jackson E. Medical Law: Text, Cases and Materials. Oxford: Oxford University Press, 2006.
it does not automatically follow that a medical practitioner who renders such services,
necessarily and by implication, warrants the success of the procedure 8

Practitioners are often consulted for expert advice on reproductive health. A patient may
want to know whether he or she would be able to have children, or whether there is any
medical reason for not conceiving, despite sexual intercourse without contraceptives.
Here, negligence in the performance of the indicated tests, handling specimens, failure
to do such tests as are necessary to establish sterility, or even a misrepresentation that
the patient is indeed incapable of procreating, may easily lead to a pregnancy that, if not
unwanted, was at least beyond the parents' contemplation. In this kind of situation - just
as in the case of a failed sterilisation the party responsible is readily identifiable and can
easily be called to account.

A patient's ability to institute legal action against a medical practitioner does not depend
on the existence of a contract. It is a general principle of South African law that a legal
obligation arises where a person, through his or her conduct, wrongfully and culpably
that is negligently or intentionally, causes harm to another. Provided all the five
abovementioned elements can be proved, the conduct constitutes a delict (civil wrong)
in South African law. When interpreting negligence, our courts also have regard to the
standard of skill and care possessed and exercised by the reasonable practitioner
belonging to the defendant's particular branch of the profession. 9
The types of loss or damages that can result from the kind of conduct under
consideration, can be categorised as either patrimonial or non-patrimonial in nature.
Patrimonial loss is a calculable monetary loss or decrease in the plaintiff's patrimony
(estate) that is a loss or reduction in value of a positive asset in the plaintiff's estate, or
the creation or increase of a negative element of his or her estate
Pure economic loss is damage of a patrimonial nature that is not the result of physical
injury, personality impairment, or damage to property. Non-patrimonial loss, on the other
hand, is a harmful change in, or factual disturbance of, a person's legally protected
personality interests (e.g. physical-mental integrity, dignity, privacy, feelings), which
change or disturbance does not affect the person's economic position. 10
In Friedman and Glickson 1996 (1) SA 1134 (W), the court held, that the contract was
not contrary to public policy but was sensible, moral and in accordance with modern
medical practice. The court also held that dismissing the exception to claim and that
the facts set out in the particulars of that claim were sufficient to satisfy the requirements
It/…
8 Mason JK. The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction. Cambridge: Cambridge University
Press, 2007.
9 Neethling J, Potgieter JM. Neethling-Potgieter-Visser Law of Delict. 7th ed. Durban: LexisNexis, 2015.
10 Neethling J, Potgieter JM. Neethling-Potgieter-Visser Law of Delict. 7th ed. Durban: LexisNexis, 2015.
the/…
of the Aquilian action and that they accordingly disclosed a cause of action. The court
further, upholding the exception to claim, that South African law could not recognise that
the facts alleged by the plaintiff on behalf of the child were sufficient to sustain a cause
of action either in contract or in delict. 11
In Stewart and Botha 2008 (6) SA 310, the court reasoned that, although, the sanctity
of life argument in wrongful birth does not prevent a cause of action, it is, however, an
insurmountable obstacle in wrongful life. 12 The courts approach is criticised for having
failed to pronounce whether the Choice on Termination of Pregnancy Act had eroded
the sanctity of life argument. This argument was not addressed by the court in this
instance. The principles of medical ethics such as beneficence and maleficence were
not addressed by the court. These are essential principles and deserve attention by the
court since it possesses the ultimate decision of determining a duty by a medical
practitioner. The court once more, held that the difficulty was not the assessment of
damages but whether the child had actually suffered damages. The exception raised
was that Friedman and Stewart occurred prior to constitutional dispensation and thus
were not looked at in the context of the Children’s Act or the Constitution which is
distinguishable in casu.13
The argument is, therefore, that the court a quo was misdirected because the child was
born in 2008 and therefore constitutional values and principles apply. The appellants
submitted that the court a quo erred in overlooking and not applying the child focused
jurisprudence of the Constitutional Court and normative values of the Constitution and
therefore in application of these principles a duty of care that is owed to the foetus
should be created. The appellants argued that the recognition of the claim will assist in
giving the child a right of recourse if parent(s) claim prescribes or if parent(s) failed to
claim.14
Upon reaching age of majority, the child will be able to maintain herself. Respondents
differed in opinion by stating that there is no justification for common law to be
developed to compensate for the negligent failure on the part of the parent(s) to
exercise their rights timeously, and that the handicapped child has a right to be taken
care of by parent(s) and society. In addressing the argument, it was stated that in
allowing the claim, it should be conceived simply as ‘helping a child to cope with the
condition of the life she was born with and making it possible for that child to live as
comfortably as possible in such circumstance. The court went further to state that
wrongful birth and wrongful life causes of action are not cumulative but they are rather
co-extensive. The wrong-doer burdens both parent(s) and the child and if the parent(s)
do not claim then, possibly, the child can.

11 Friedman and Glickson 1996 (1) SA 1134 (W),

12 Stewart and Botha 2008 (6) SA 310
13 Stewart and Botha 2008 (6) SA 310
14 Stewart and Botha 2008 (6) SA 310
15

In H v Fetal Assessment Centre 2015 2 SA 193 (CC) the court concluded that the
wrongful life cause of action has the potential of existence which must be determined by
the High Court as the upper guardian in all matters concerning children. Therefore, the
recognition by the Constitutional Court will have an impact on the medical and legal
fraternity when taking into account the rapid advances in genetic technology. For the
purpose of understanding the cause of action, it has become essential to note that there
is a distinction between a foetus, a child, a potential child and a future child. The
wrongful life cause of action solely focuses on a potential child 16
In Premier Kwa Zulu Natal and Sonny 2011 (3) SA 424(SCA), the Premier of the
Province of KwaZulu-Natal was held liable for the damages sustained by the
respondents. Their claim was based on medical negligence. The damages they claimed
were for the costs of maintaining a child suffering from Down’s syndrome. They had
contended the hospital had failed to inform them that the fetus the second respondent
had been carrying might be afflicted with Down’s syndrome. 17 They contended that they
had not been informed of the risks attendant upon the pregnancy and that the hospital
staff had failed to conduct timeous conclusive chromosomal testing to enable a
termination of pregnancy in terms of the choice of Termination of Pregnancy Act 92 of
1996.18 The Supreme Court of Appeal upheld the high court’s factual findings that the
second respondent had not been informed of the risks attendant upon her pregnancy
and that they had failed to conduct the chromosomal testing timeously when they could
have done so. The court held that the doctors ought to have involved the second
respondent fully in her own treatment and the diagnosis of the condition of the fetus. It
confirmed the finding of the high court that the medical staff were negligent and the
Premier of the Province of KwaZulu-Natal was liable for the damages proved to have
been sustained. It was held that there had been no contributory negligence on the part
of the second respondent as she had followed the advice of a primary health clinic
about whether she was required to undergo an immediate second fetal scan. The
Premier of the Province of KwaZulu-Natal was ordered to pay the costs of the appeal
including the costs of two counsel.19
On the given case, I concur with the decion on Premier Kwa Zulu Natal and Sonny case
I think that Lebo and Mrs. Vilakasi are entitled to be compensated for all losses caused
by Doctor X’s negligence, including costs of rearing an unplanned or deformed child. If
Doctor X could have advised Mrs. Vilakasi properly, Lebo couldn’t not have been as is
the case at the present moment, where she is enduring a lot due to the deformity and

15 Stewart and Botha 2008 (6) SA 310 In/…

16 H v Fetal Assessment Centre 2015 2 SA 193

17 Premier Kwa Zulu Natal and Sonny 2011 (3) SA 424(SCA),
18 choice of Termination of Pregnancy Act 92 of 1996
19 Premier Kwa Zulu Natal and Sonny 2011 (3) SA 424(SCA),
recovable/…
that she cannot even walk and relies on her mother to move her around instead of her
mother could be working and supporting her and her siblings. When the courts
assessing the situations, the trier of fact should be allowed to consider all relevant
circumstances when assessing damages, and offset the benefits of parenthood against
the damages recoverable by the parents. A proper balance should be struck between
the right of the parents to be compensated for their losses, and the traditional notion that
a child provides its parents with innumerab le intangible benefits.
BIBLIOGRAPHY
Wrongful life claims: A failure to develop the common law 202 23? stellenbosch law review
The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction. Cambridge: Cambridge
University Press, 2007.

The Constitution of the Republic of South Africa, 1996.

Text, Cases and Materials. Oxford: Oxford University Press, 2006.

Law of Delict. 7th ed. Durban: LexisNexis, 2015

Choice of Termination of Pregnancy Act 92 of 1996

CASE LAW
Friedman and Glickson 1996 (1) SA 1134 (W)
Stewart and Botha 2008 (6) SA 310,
In H v Fetal Assessment Centre 2015 2 SA 193 (CC)
Premier Kwa Zulu Natal and Sonny 2011 (3) SA 424(SCA),