Helman v Kingsbury Foetal Assessment Centre (Pty) Ltd
| Jurisdiction | South Africa |
| Judge | Baartman J |
| Judgment Date | 24 April 2014 |
| Docket Number | 4872/2013 |
| Court | Western Cape High Court, Cape Town |
| Hearing Date | 27 March 2014 |
| Citation | 2014 JDR 0880 (WCC) |
Baartman, J
On 4 April 2008, Max Phillip Helman (Max) was born with Down's syndrome. This is an exception taken to Max's claim for damages resulting from medical negligence, a failure to have assessed the high risk of abnormality in the foetus and to have informed his pregnant mother, Claire Joanne Helman (Helman), of the risks
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associated with her pregnancy, which caused him to be born rather than aborted.
The purpose of an exception is to dispose of the case or a portion thereof in an expeditious manner, or "to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception." (See Lobo Properties (Pty) Ltd v Express Lift Co. (SA) (Pty) Ltd 1961(1) SA 704 [CPD] at 711 G) In the notice of exception, the excipient must state in "clear and concise" terms the particulars on which the exception is based and is bound by them. The clear particulars on which this exception is based are set out below.
BACKGROUND
Helman issued summons in "her representative capacity as the mother and natural guardian"... of Max and alleged that:
on 8 October 2007, Helman, at the time pregnant with Max, attended the Kingsbury Foetal Assessment Centre (Pty) Ltd (the excipient) to have a foetal assessment done;
the excipient's staff, acting in the course and scope of their employment, carried out an NT scan on Helman;
the video of the NT scan clearly showed, "a very large abnormal nuchal translucency present in that although the Defendant measured the nuchal translucency at 1.9mm, it actually measured between 4mm — 5.3mm, such a measurement indicating a very high risk of DS in the foetus."
the excipient's employees failed to correctly interpret the NT scan and, as a consequence, did not warn Helman of "a very high risk of foetal abnormality, particularly chromosomal and cardiac defects."
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properly informed of the risk, Helman would immediately have aborted the foetus;
"The sequelae of the defendant's breach of its duty of care, and therefore negligence ...are:
Max was born with severe DS;
Max has serious and permanent cardiac defects,
Max has IGA deficiency...
At the time of the assessment it was reasonably foreseeable that should DS present in the foetus at the time of the assessment not be detected, as it should have been, Max would probably be born with DS and that the Plaintiff (Helman) would consequently suffer damages and incur additional expenses in caring for and providing for care for Max for the rest of his natural life."
The excipient took exception to the particulars of claim in the following terms:
Accordingly, the particulars are expiable in one or more or all of the following respects —
The present action (and the claim so instituted on behalf of Max) is bad in law, and/ or
The present action (and the claim so instituted on behalf of Max) is contra bonos mores and / or contrary to the public policy, and / or
Actions and / or a claim such as the present one of Max are not recognised or permissible in terms of South African law, and / or
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Based, as the action is, on the alleged breach of a legal duty (duty of care), particulars contain no allegation to the effect that defendant assumed, undertook or, indeed, had, any legal duty towards Max whilst still a foetus in utero and, more in particular, on 8 October 2007; and/or
Defendant could not, in law, have undertaken or assumed a legal duty towards Max (whilst a foetus in utero and / or prior to his birth and / or on 8 October 2007) that would have obliged it to take such action as might be required or necessary to cause Max's life (as a foetus in utero) to be terminated; and / or
Defendant did not owe Max a legal duty (a duty of care) that could lead to the termination of his existence in the circumstances pleaded in the particulars; and / or
Max does not have a delictual claim against defendant for "allowing" him to be born with Down Syndrome and the related pathology instead of giving plaintiff such advice as would have caused her to terminate her pregnancy, thereby causing Max never to have existed in the legal sense; and/or
Defendant could not have, and did not, act unlawfully towards Max; and, further, it is not alleged in the particulars that he did so act, and / or
Defendant could not have, and did not, act unlawfully towards Max; and further, it is not alleged in the particulars that he did so act, and / or
No legal viable cause or right of action exists in South African law for the damages that plaintiff purports to claim on behalf of Max; and/or
The legal effect and implications of the relief claimed by plaintiff in casu on behalf of Max is that of requiring the above
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Honourable Court to have hold and/or to make a finding to the effect that it would be better for Max not to have the 'unquantifiable blessing of life' rather than to have such life, albeit in a marred way, and it would be contrary to public policy for the above Honourable Court to do so; and/or
Regard being had to the contents of the particulars and the true nature of the claim presently instituted on behalf of Max, it is not possible or competent for the above Honourable Court to determine and/or award damages by means of a process of comparing, on the one hand, the value of non-existence (in the event of a termination of the relevant pregnancy) with, on the other hand, the value of existence (albeit in an abnormal, disabled or malformed state); and/ or
in so far as the contents of paragraph 13.2 and 13.3 of the particulars are concerned, the claims contained therein –
8.13.1
would (ordinarily) properly and appropriately be designated as those of one or other or both of Max's parents and natural guardians, in his/her/their personal capacities (as the case may be) or losses and/or expenditure that has / have been, or will in the future be, incurred in respect of Max, and/or
8.13.2
would (ordinarily) properly and appropriately be designated as those of such person or persons, in his/her/ their capacities (as the case may be) as might legally be responsible for losses and/ or expenditure that have been, or will in the future be, incurred in respect of Max; and/or
8.13.3
do not properly constitute claims for those losses suffered, or to be suffered in the future of Max."
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Mr Van der Spuy, who appeared...
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