H v Fetal Assessment Centre

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J
• Judgment Date: 11 December 2014
• Citation: 2015 (2) SA 193 (CC)
• Docket Number: CCT 74/14 [2014] ZACC 34
• Hearing Date: 28 August 2014
• Counsel: RP Hoffman SC (with N Lawrenson) for the applicant. S Burger SC (with G van der Spuy) for the respondent.
• Court: Constitutional Court

Froneman J (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J concurring): G

Introduction

H [1] Prospective parents, who are fortunate enough to have access to that kind of medical care, often obtain medical advice during pregnancy to ascertain whether their child will be born in good health. If they are told that the child will probably suffer from a serious medical condition or congenital disability, the mother may choose not to give birth to the child. That choice is given to her under South African law. [1] Our law also I recognises a claim by the parents for patrimonial damages in circumstances where that kind of medical advice should have been given to

Froneman J (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J concurring)

them, but was negligently not provided. [2] A

[2] Until now, however, our law has denied the child any claim in those circumstances. [3] The question for decision here is whether that should change.

[3] The applicant is a boy who was born with Down's syndrome in 2008. B His mother instituted a claim on his behalf (child's claim) in the Western Cape Division of the High Court, Cape Town (high court), for damages against the respondent, the Fetal Assessment Centre (Centre). The claim is based on the alleged wrongful and negligent failure of the Centre to warn the mother that there was a high risk of the child being born with Down's syndrome. It is alleged that had she been warned she would have C chosen to undergo an abortion. The child claimed special damages for past and future medical expenses and general damages for disability and loss of amenities of life. The Centre excepted to the claim as being bad in law, in not disclosing a cause of action recognised by our law.

[4] The particulars of claim on behalf of the child are not a model of D clarity. They are framed in terms of a 'duty of care' owed to the child's mother, albeit in her representative capacity as the child's mother and natural guardian, and allege a failure on the part of the Centre in a number of respects '(i)n breach of [that] duty of care, and therefore negligently'. [4] Those are terms more appropriate to the tort of negligence E in English law and do not assist in determining the proper bounds of liability in terms of the wrongfulness requirement of our law of delict. The exception, in turn, is also based on the assumption that the common law of delict currently does not recognise that kind of a claim.

[5] The high court upheld the exception and dismissed the claim with F costs. It did so in reliance on the Supreme Court of Appeal's decision in Stewart. [5]

[6] The approach in Stewart was that recognising a child's claim would be to make a pronouncement on a question that 'should not even be asked of the law'. [6] The Supreme Court of Appeal distinguished the parents' claim from that of a child: G

'In these cases the claim that arose and was awarded was that of the parents who sought to recover the additional financial burden they had to bear in consequence of the negligence. There is no question in those cases of the essential dilemma that arises in the case before us, as it is H

Froneman J (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J concurring)

A not questioned in those cases whether the child would have been better off not to have been born. Those cases commence with an acceptance of the fact that the birth has occurred and seeks to address the consequences of the birth.' [7]

This was, however, to be distinguished from the child's claim:

B 'At the core of cases of the kind that is now before us is a different and deeply existential question: was it preferable — from the perspective of the child — not to have been born at all? If the claim of the child is to succeed it will require a court to evaluate the existence of the child against his or her non-existence and find that the latter was preferable.' [8]

C And finally:

'The essential question that is asked when enquiring into wrongfulness for purposes of delictual liability is whether the law should recognise an action for damages caused by negligent conduct and that is the question that falls to be answered in this case. I have pointed out that from whatever perspective one views the matter the essential question that a D court will be called upon to answer if it is called upon to adjudicate a claim of this kind is whether the particular child should have been born at all. That is a question that goes so deeply to the heart of what it is to be human that it should not even be asked of the law. For that reason in my view this court should not recognise an action of this kind.' [9]

[Emphasis added and footnote omitted.]

E [7] The child seeks leave to appeal directly to this court against the high court's decision. He contends that in the particular circumstances it is reasonable and in the interests of justice to do so, given that an appeal to the Supreme Court of Appeal is likely to be futile in light of its relatively recent decision in Stewart.

Issues F

[8] The following issues arise:

(a)

Should leave to appeal be granted?

(b)

If leave is granted, was the exception procedure appropriate?

(c)

G The merits of the appeal.

(d)

Order and costs.

Leave to appeal

[9] Leave to appeal must be granted. The applicant seeks the development of the common law to allow for the recognition of the child's claim. H That is an issue of major legal and constitutional importance. Prospects of success exist. The Supreme Court of Appeal has already given a decision setting its face against recognition of the child's claim. This is not a decisive consideration because the possibility is always there that it could be persuaded to change course. But, again, it may not. Usually this I court will be deferent in allowing the common law to be developed in the high court and the Supreme Court of Appeal. But here, as will be seen,

Froneman J (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J concurring)

the outcome of this appeal will allow the high court and, if necessary, A later the Supreme Court of Appeal to play a significant role in the further development of the common law, within the guidelines of this judgment.

Was the exception procedure appropriate?

[10] In the high court the matter was decided on exception. Exceptions B provide a useful mechanism 'to weed out cases without legal merit', as Harms JA said in Telematrix. [10] The test on exception is whether on all possible readings of the facts no cause of action may be made out. It is for the excipient to satisfy the court that the conclusion of law for which the plaintiff contends cannot be supported on every interpretation that can be put upon the facts. [11] C

[11] This court has decided appeals in matters where exceptions were upheld. [12] On other occasions it considered that the question of the development of the common law would be better served after hearing all the evidence. In Carmichele [13] this court held that, as in some cases on exception, it was also better not to decide issues about the development D of the common law by an order granting absolution from the instance at the end of a plaintiff's case in a trial: [14]

'There may be cases where there is clearly no merit in the submission that the common-law should be developed to provide relief to the plaintiff. In such circumstances absolution should be granted. But where E the factual situation is complex and the legal position uncertain, the interests of justice will often better be served by the exercise of the discretion that the trial Judge has to refuse absolution. If this is done, the facts on which the decision has to be made can be determined after hearing all the evidence, and the decision can be given in the light of all the circumstances of the case, with due regard to all relevant factors.' [15] [Emphasis added.]

[12] There is no general rule that issues relating to the development of F the common law cannot be decided on exception, but where the 'factual

Froneman J (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J concurring)

A situation is complex and the legal position uncertain' it will normally be better not to do so. [16] Are the facts and legal norms applicable here complex and uncertain?

[13] Section 39(2) of the Constitution requires that courts must, when developing the common law, promote the 'spirit, purport and objects of B the Bill of Rights'. Development of the common law may take place in more than one manner. In K [17] O'Regan J, relying on the judgment of Moseneke J in Thebus, [18] explained this:

'It is necessary to consider the difficult question of what constitutes development of the common law for the purposes of s 39(2). . . .

C The overall purpose of s 39(2) is to ensure that our common law is infused with the values of the Constitution. It is not only in cases where existing rules are clearly inconsistent with the Constitution that such an infusion is required. The normative influence of the Constitution must be felt throughout the common law. Courts making decisions which D involve the incremental development of the rules of the common law in cases where the values of the Constitution are relevant are therefore also bound by the terms of s 39(2). The obligation imposed upon courts by s 39(2) of the Constitution is thus extensive, requiring courts to be alert to the normative framework of the Constitution not only when some startling new development of the common law is in issue, but in all cases where the incremental development...