Friedman v Glicksman

• Jurisdiction: South Africa
• Judge: Goldblatt J
• Judgment Date: 19 October 1994
• Docket Number: 5788/94
• Hearing Date: 02 September 1994
• Counsel: B Ancer SC (with him P Pauw) for the excipient (defendant). D H Soggott SC for the respondent (plaintiff).
• Court: Witwatersrand Local Division

Goldblatt J:

The defendant excepts to claims which have been made against D him by the plaintiff in her personal capacity and in her capacity as mother and natural guardian of her minor child, Alexandra. The defendant contends that the allegations made by the plaintiff do not disclose a cause of action cognisable in South African law.

Before dealing with the merits of the various arguments of the parties it is important to emphasise the procedural aspects of an application of this E nature. For the purpose of dealing with the exception the Court must assume that each and every allegation made by the plaintiff is true. This does not mean that any findings are made in these proceedings as to the truth of such allegations, which must in due course be dealt with at a trial. I make these introductory remarks because of the fairly extensive media coverage this matter has elicited which have given the impression that plaintiff's allegations are factually correct. F This incorrect and misleading description of these proceedings can cause the defendant substantial harm and must be avoided.

The allegations made by the plaintiff are:

1.

G She, when pregnant, consulted the defendant, a specialist gynaecologist, to advise her apropos of the risk that she might have been pregnant with a potentially abnormal and/or disabled infant.

2.

It was understood between the plaintiff and the defendant that the plaintiff wished to terminate her pregnancy if there was any risk greater than the normal risks of the infant being born in an abnormal and/or disabled condition.

3.

H An agreement was concluded in terms of which the defendant would provide such advice in order that the plaintiff might make an informed decision on her own behalf and on behalf of Alexandra whether to terminate the pregnancy or not.

4.

In the alternative the defendant, by virtue of his professional I status, was under a duty to provide the advice to the plaintiff both in her personal capacity and on behalf of Alexandra for the purpose set out in 3 above. In this regard he had to act with the skill, knowledge and diligence normally exercised by other members of his profession.

5.

The defendant, having carried out certain tests, advised the J plaintiff that there was no greater risk than the normal risk of

Goldblatt J

A having an abnormal and/or disabled child and that it was quite safe for her to proceed to full term to give birth.

6.

The defendant's advice was erroneous and Alexandra was born disabled on 5 March 1991.

7.

The defendant in giving his advice had acted negligently in a number B of respects. Had he not acted in this negligent manner he would have concluded that there was a greater than normal risk of the child being born disabled and would have advised the plaintiff of this fact.

8.

Had she received the correct advice the plaintiff would have terminated her pregnancy forthwith.

9.

C The defendant's negligence was a breach of his duty of care as well as a breach of the agreement concluded.

Based on these facts plaintiff has brought two claims:

A claim in her personal capacity for the expenses of maintaining and rearing Alexandra as well as all future medical and hospital treatment and D other special expenses.

A claim in her representative capacity on behalf of Alexandra for general damages as well as a claim for future loss of earnings.

Claims of this nature have been the subject of many reported judgments in foreign countries and have been the subject of many academic articles both E in South Africa and abroad. Counsel, with considerable diligence, have made many of these judgments and articles available to me. I have read and considered all these legal writings and judgments but, in order to avoid prolixity, do not intend referring to all of them, especially as there is a great degree of repetition contained in them. However, they have all contributed in some measure in assisting me in reaching my F decision in this difficult matter. I list hereunder the various articles considered by me:

(i)

T K Foutz 'Wrongful Life: The Right not to be Born' (1980) Tulane Law Review 480 at 491

(ii)

G Lind 'Wrongful Birth and Wrongful Life Actions' (1992) 109 SALJ 428

(iii)

S Brownlie 'Wrongful Life: Is it a Viable Cause of Action in South Africa?' 1985 Responsa Meridiana 18

(iv)

M Blackbeard 'Die Aksie vir "Wrongful life": To be or not to be' (1991) 54 THRHR 199

(v)

P F Louw 'Wrongful Life: 'n Aksie gebasseer op die Onregmatige H Veroorsaking van Lewe' 1987 TSAR 199

(vi)

P Q R Boberg 'An Action for Wrongful Life' (1964) 81 SALJ 498

(vii)

S A Strauss Doctor, Patient and the Law 3rd ed at 197

(viii)

G Robertson 'Wrongful Life' (1982) 45 Modern Law Review 697

(ix)

Lehr and Hirsh 'Wrongful Conception, Birth and Life' 1983 Medicare and I Law vol 2 199

(x)

B Cleaver 'Wrongful Birth - The Dawning of a New Action' (1991) 108 SALJ 47

(xi)

Judge Amnon Carni 'Wrongful Life: An Israeli Cast' (1990) Medicare and Law 777.

Originating in America and used by most writers and jurists the J terminology set out hereunder is a useful shorthand for the issues raised

Goldblatt J

A in this matter. The phrases however do contain certain emotional and apparent value judgments which can detract from a proper judicial approach to the issues raised.'Wrongful pregnancy' refers to those cases where the parents of a healthy child bring a claim on their own behalf for damages they themselves have suffered as a result of giving birth to an unwanted child.'Wrongful birth' are those claims brought by parents who claim they would have avoided conception or terminated the pregnancy had they been properly advised of the risk of birth defects to the potential child.'Wrongful life' actions are those brought by the child on the basis that the doctor's negligence - his failure to adequately inform the parents of the risk - has caused...