Question 1

Damages is described as “the diminution as a result of a damage-casing event, in the

utility or quality of patrimonial or personality interest in satisfying the legally recognized
needs of the person involved. There is very clear distinction between patrimonial loss and
non-patrimonial loss. The former is easily convertible to money and does have a
pecuniary effect on the estate of the plaintiff, whereas, the other has no direct effect on
the estate of the plaintiff and may not be converted to monetary loss easily.1

Y, a female student from Pretoria born with congenital cardiac failure and her mother, B,
wishes to lodge claims for wrongful life and or a wrongful birth claim in terms of the South
African law of damages. First, we need to look at some of the most recent cases with
similar circumstances.

In Stewart v Botha 2008 (6) SA 310 the court refused an action for wrongful life.

In an action in the High Court against the medical practitioners who attended upon his
wife during her pregnancy with their minor son, the appellant claimed damages (damages
for maintenance, special schooling and past and future medical expenses) in delict on
behalf of his son consequent upon the fact that he was born with severe congenial
defects.2 The plaintiff alleged that the respondents' negligence subsisted in their failure
to have detected the congenital abnormalities in the foetus and to have informed his wife
of the defects, who would have terminated the pregnancy, with the result that his son
would not have been born and would not have suffered from the severe physical
handicaps from which he suffered.

The respondents excepted to the appellant's claim as not disclosing a cause of action, as
being contra bonos mores and against public policy, ie they disputed the wrongfulness
element of the appellant's claim. The High Court upheld the exception and dismissed the
appellant's claim. In an appeal to the Supreme Court of Appeal the court recognised the
parents' claim for damages flowing from the child's condition, but drew a distinction
between the parents' claim and that of the child for the same damages.

Held, that conduct which caused loss to another was actionable only if, in addition to
being negligent, it was wrongful, ie if public-policy considerations demanded that, in the
particular circumstances, the plaintiff had to be compensated for his or her loss.

1 Potgieter JM, Steynberg L and Floyd TB Law of damages (Juta 2012) 49.
2 Stewart v Botha 2008 (6) SA 310.
Held, further, that where the conduct causing the loss was an omission rather than a
positive act, it was considered to be wrongful only where there existed a legal duty on the
defendant not to act negligently in the circumstances. In turn, whether or not there existed
a legal duty not to act negligently was a matter for judicial determination involving criteria
of public or legal policy consistent with constitutional norms.

Held, further, that the decided cases arising from a similar context involved claims by
parents to recover the additional financial burden in consequence of the negligence. The
question therefore did not arise in any of those cases whether the child would have been
better off had he or she not been born. In the present case, however, if the child's claim
were to succeed, the court would have to find that he would have been better off had he
not been born.3

Held, further, that the question whether the particular child should have been born at all
was a question that went so deeply to the heart of what it was to be human that it should
not even be asked of the law. For that reason, the court should not recognise an action
of that kind.

Held, further, that the court below therefore correctly refused the claim on exception. The
appeal was dismissed.

Wrongful birth actions are instituted by parents who claim that they would have aborted
their impaired fetuses if they had prior knowledge of expected or diagnosed development
abnormality. The plaintiff’s injury therefore results from a denial of her right to an informed
choice or no choice at all. (Compensation for the deprivation of their right to choose
whether to be parents of a healthy child). It is generally advanced that to consider a birth
an injury would offend fundamental values attached to human life.4

In Friedman v Glicksman 1996 (1) SA 1134 (W) the court had no difficulty in dismissing the
exception, against the “wrongful birth” claim, that the child’s condition “was not caused by any act or
omission on the defendant’s part but was a congenital defect arising at the time of conception ”.

An agreement between a pregnant woman and a doctor that he would advise her whether
there was a greater risk than normal that she might have a potentially abnormal or
disabled child so that she might make an informed decision on whether or not to terminate
the pregnancy is not contra bonos mores but sensible, moral and in accordance with
modern medical practice.

3 ICL_STEWART_AND_ANOTHER_v_BOTHA_AND_ANOTHER_2008_56deada8913f1.pdf
(medicolegal.org.za)
4 1985. Wrongful Life, Wrongful Birth and Wrongful Pregnancy: Judicial Divergence in the borth-
related torts. The Forum, 218.
She is, by making such an agreement, seeking to enforce a right which she has in terms
of s 3(c) of the Abortion and Sterilisation Act 2 of 1975 to terminate her pregnancy if there
is a serious risk that her child might be seriously disabled.

If a doctor fails to inform a pregnant patient that she is at greater risk than normal of
having an abnormal or disabled child, or incorrectly informs her that she is not at greater
risk, when she reasonably requires such information in order to make an informed choice
whether to terminate such pregnancy, he is delictually liable to her for the damages she
has suffered by giving birth to an abnormal or disabled child.

The fault element of the delict is to be found in the foreseeability of harm which the doctor-
patient relationship gives to the doctor. A mother cannot claim, as mother and natural
guardian of her abnormal or disabled child, general damages and loss of future earnings
from the doctor who agreed to advise the mother, when pregnant, whether she was at
greater risk than normal of having an abnormal or disabled child, so that she could make
an informed decision whether or not to terminate her pregnancy, and who incorrectly
informed her that she was at no greater risk than normal.

There can be no claim in delict because (i) the doctor owed no duty to the child to give
the child's mother an opportunity to terminate the pregnancy, and (ii) it was impossible to
calculate damages, being the difference between an impaired life and no life.

In her particulars of claim, the plaintiff (respondent) alleged that, when pregnant, she had
consulted the defendant, a specialist gynaecologist, to advise her on the risk of her being
pregnant with a potentially abnormal and/or disabled infant; that he had advised that there
was no greater risk than the normal and that it was safe to proceed to full term to give
birth; that the advice was erroneous and her child was born disabled.

She alleged that the specialist had acted negligently in giving this advice and that his
negligence was a breach of his duty of care and of an alleged contract that the defendant
would provide the advice sought in order that the plaintiff might make an informed decision
on her own behalf and on the unborn child's behalf whether to terminate the pregnancy
or not.

She claimed (a) in her personal capacity, for the expenses of maintaining and rearing the
child and for all future medical and hospital treatment and other special expenses; (b) in
her capacity as mother and natural guardian on behalf of the child, general damages and
future loss of earnings.

The defendant excepted to the particulars of claim as disclosing no cause of action

cognisable in South African law and argued that it would be against public policy to
enforce the contract because it would encourage abortion and thus be inimical to the right
to life enshrined in s 9 of the Constitution of the Republic of South Africa Act 200 of 1993
and also to the generally recognised sanctity accorded by society to life and the process
by which it is brought about.

Held, that the contract was not contrary to public policy but was sensible, moral and in
accordance with modern medical practice.

Held, further, dismissing the exception to claim (a), that the facts set out in the particulars
of that claim were sufficient to satisfy the requirements of the Aquilian action and that they
accordingly disclosed a cause of action.

Held, further, upholding the exception to claim (b), that South African law could not
recognize 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.

H v Fetal Assessment Centre 2015 2 SA 193 – Wrongful life claim

A boy with Down's syndrome — who was represented by his mother — sued the Fetal
Assessment Centre for his damages flowing from its alleged failure to warn his pregnant
mother that there was a high risk of him being born with the syndrome. He alleged that
had his mother been informed of the risk she would have terminated the pregnancy. The
damages he claimed were for his past and future medical expenses, for disability and for
loss of amenities of life. The Centre excepted to the claim as not disclosing a cause of
action, and the high court upheld the exception and dismissed it.

He then appealed directly to the Constitutional Court. In issue was whether the common
law might be developed to recognise the child's claim.

Held, that it might be. This because:

a) Authority barring the claim did not take into account the right of a child in s 28(2)
of the Constitution, nor other constitutional rights. B) The elements of the law of
delict could accommodate the claim c) There was some foreign authority for such
a claim.

Held, though, that it remained for the high court to determine whether the claim did exist,
and if so, in what form. The Constitutional Court accordingly upheld the appeal, set aside
the order of the high court, and replaced it with an order granting leave to amend his
particulars of claim.
Premier KwaZulu Natal v Sonny 2011 (3) SA 424 (SCA)

The first and second plaintiffs, a husband and wife, instituted action in the High Court in
which they claimed, first, their damages flowing from the birth of their child with Down's
syndrome and, second, the wife's damages flowing from the performance on her of a
sterilisation procedure at the time of delivery without her informed consent.

Initially a patient at the Clare Estate Clinic , the wife was referred to Addington Hospital
where she had two ultrasound scans and subsequently gave birth by Caesarean section.

After the first scan the wife was sent back to the clinic in order to make an appointment
for a follow-up scan two weeks later

She returned to the clinic and was given the incorrect advice that there was nothing wrong
with the ultrasound report and that everything was in order. (In fact, according to the
expert evidence, while inconclusive, the report rang alarm bells for the presence of
Down's syndrome.)
Acting on that advice the wife did not return to Addington Hospital for a rescan.
Four months later the wife was referred by the clinic to Addington Hospital for a second
ultrasound scan
Following the scan she was referred to King Edward VIII Hospital where she had a
cordocentesis to establish whether the baby had Down's syndrome.

The cordocentesis revealed that the baby was normal. Only after the baby was born was
Down's syndrome detected. The wife was 37 years of age when she gave birth.

Claim one was brought in both contract and delict. The plaintiffs' case was that the
medical professionals, charged with the duty of monitoring the wife's pregnancy,
breached their obligations in various respects.

More particularly, they failed, at an early stage of her pregnancy, to perform the various
tests that were required to determine whether the foetus was normal or whether it suffered
from a genetic abnormality.

The wife was a high-risk patient. Her age alone proclaimed that her pregnancy ought to
have been monitored at a higher level of medical care. Had she been properly advised,
she would have elected to terminate the pregnancy.

In respect of the second claim it was alleged that the plaintiffs signed the consent to
sterilisation form prior to the wife's undergoing a Caesarean section only because they
believed that there was nothing wrong with the baby.
After a separation of issues it was determined that the court would first determine the
issue of liability. When the trial was part heard, the plaintiffs' claim against the municipality
was settled.
Held, in respect of claim one, that the wife was sent back to the clinic by the doctor that
had seen her at the hospital after she had her first scan. That event set in motion a chain
of events which ultimately led to the unfortunate consequence that the wife gave birth to
a Down's syndrome child.

The wife returned to the clinic and was given advice which was palpably wrong. Any
health professional at the clinic applying her mind would have realised, firstly, that the
wife had to be rescanned. Furthermore, the wife was a high-risk patient because of her
age and she needed to be monitored at a higher level of care. More importantly, the
patient herself conveyed that information not only to the nurse that saw her at the hospital,
but subsequently when she reported at the clinic for her follow-up monitoring.
On the facts, the servants of the municipality were grossly negligent.

Held, further, that once the patient was sent out of the hospital's control, as it were, there
rested a heavy responsibility on the attending doctor to properly inform and counsel the
patient. A reasonable person in the position of a doctor would have foreseen the
reasonable possibility of the patient's falling through the cracks and not returning to the
hospital and, secondly, given the vagaries of the primary health care facilities, that she
might receive the defective and almost bizarre advice from a member of the clinic staff
that she did in fact receive. It was incumbent on the doctor to inform the wife in detail of
the risks she faced and precisely what the effect was of the inconclusive scan and the
absolute necessity of having an urgent rescan.

Held, further, that it went even further. Having regard to the foreseeable consequence of
some breakdown of communication or gross misunderstanding that might occur in the
clinic environment, it was at least necessary for the doctor to have given or caused to be
given some written instruction to the clinic to make it absolutely clear that the wife was
required to return.

Held, further, that, in conclusion, the servant or servants of Addington Hospital were
negligent in the respects set out above and, for purposes of any delictual action, there
was no contributory negligence on the part of the wife. In any event, no such contributory
negligence could be taken into account as far as the plaintiffs' contractual claim was
concerned.

Held further, that that negligence was causatively related to the birth of the child which,
but for such negligence, would not have been born.

Held, further, in respect of claim two, that the court was not persuaded on the evidence
that the servants of the premier committed any wrongful act, either intentionally or
negligently vis-à-vis the wife. In the result, liability on the second claim had not been
proved.

Held, accordingly, that the premier was liable to the plaintiffs for any damage the plaintiffs
might prove, arising from the birth of the child, and, on the claim relating to the sterilisation
of the wife, the premier was absolved from the instance.

BIBLIOGRAPHY

Case law
Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA).
Cadac (Pty) Ltd v Weber-Stephen Products Co and Others 2011 (3) SA 570 (SCA) ([2011]
1 All SA 343; [2010] ZACC 105).
Grindrod (Pty) Ltd v Delport and Others 1997 (1) SA 342 (W).
Associated Newspapers Ltd en 'n Ander v Samuels 1980 (1) SA 24 (A); Muller v SA
Associated Newspapers Ltd and Others 1972 (2) SA 589 (C)
Gelb v Hawkins 1960 (3) SA 687 (A).
Venter v Nel 1997 (4) SA 1014 (D).
Dorfling v Coetzee 1979 (2) SA 632 (NC).
New Zealand Insurance Co Ltd v. Du Toit 1965 (4) SA 136 (T)
Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016
(1) SA 621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34).
MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC)
(2017 (12) BCLR 1528; [2017] ZACC 37) (DZ obo WZ).

Legislation
The Constitution of the Republic of South Africa 108 of 1996.

Textbooks
Potgieter JM, Steynberg L and Floyd TB Law of damages (Juta 2012).
Potgieter, Steynberg and Floyd Damages 2012