Stewart and Another v Botha and Another

• Jurisdiction: South Africa
• Judge: Louw J
• Judgment Date: 07 May 2007
• Citation: 2007 (6) SA 247 (C)
• Docket Number: 10929/2004
• Hearing Date: 20 April 2006
• Counsel: A C Oosthuizen SC for the plaintiffs M Daling for the first defendant
• Court: Cape Provincial Division

Louw J:

[1] The plaintiffs in this action for damages are the natural parents of B Stewart (to whom I shall refer as 'B') who was born B on 4 August 1993 with severe physical disabilities. The plaintiffs' claims arise from B's birth in his disabled state and are brought against the general medical practitioner (the first defendant) and against the specialist obstetrician and C gynaecologist (the second defendant), who treated and advised B's mother, the first plaintiff, during the course of her pregnancy with B.

[2] The first plaintiff, who is B's mother, claims in her personal capacity in contract, alternatively in delict, for damages in the amount of R2,66 million in respect of past and future medical expenses occasioned by B's condition, expenses in regard to special D schooling for B and for the maintenance of B for the rest of his life, which is estimated to be 50 years.

[3] B's father, the second plaintiff, sues in delict in his representative capacity as father and natural guardian of and on behalf of B for damages suffered by B in the amount of R2,41 million in E respect of future medical treatment necessitated by his disability, the cost of his special schooling and his maintenance for the remainder of his life (I shall refer to this claim as B's claim). There are no claims on behalf of B for loss of future income and for general damages for pain and suffering and loss of amenities of life. F

[4] The plaintiffs allege that the defendants were contractually bound, alternatively were under a legal duty owed to the first plaintiff, alternatively to B, at the time an unborn foetus in his mother's womb, to treat and advise B's mother with the necessary care and skill during the course of her pregnancy; that the defendants failed to detect deformities and abnormalities of the G foetus that could present at birth in a child who is severely disabled; that they failed to inform B's mother of the risk of a child being born with such abnormalities and that they failed to advise B's mother on a termination of the pregnancy. The plaintiffs further allege that had B's mother been advised of the high risk of the child being born H with severe physical disabilities, she would have elected to terminate the pregnancy and that, but for the omissions by the defendants, B would not have been born at all and that he would not at present and in future have had to suffer the consequences of being born with serious and disabling physical deformities and abnormalities. I

[5] It is common cause that the physical abnormalities and deformities of which B suffers are congenital in nature. The plaintiffs do not allege that any act or omission of either of the defendants caused or contributed to the disabilities and deformities suffered by B.

[6] B's claim has become known in academic writings and in judgments J

Louw J

of our courts and the courts of other jurisdictions as a 'wrongful life' claim. The defendants contend that such a claim A is not recognised in South African law and have raised an exception that the particulars of claim disclose no cause of action in this regard. No exception is taken to the first plaintiff's claim in her personal capacity. Such a claim has become known as a 'wrongful birth' claim. B

[7] In Friedman v Glicksman, [1] the only South African decision which deals with the action for 'wrongful life', the exception taken by the defendant against the claim was upheld. The case also dealt with a 'wrongful birth' claim. At 1138A - C of the judgment Goldblatt J explains the concepts 'wrongful pregnancy', 'wrongful birth' and 'wrongful life': C

'''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. D

''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 the birth of the disabled child. The child argues that, but for the inadequate advice, it would not have been born to experience the pain and suffering attributable to the disability.' E

[8] The action for 'wrongful life' has been considered in a number of cases in America. In all but a few of those [2] it failed. In England the leading case on the subject is the decision of the Court of Appeal in McKay and Another v Essex Area Health Authority and Another [3] where it was held that no cause of action exists in English law for a claim for 'wrongful life'. In Australia the High Court of Australia decided in Harriton v F Stephens [4] with one (Kirby J) of the seven members of the Court dissenting, that the law in Australia did not allow for the recognition of a claim for 'wrongful life'. In Canada the Court of Appeal of Manitoba in Lacroix (Guardian of) v Dominique [5] approved of the reasoning in McKay and rejected the claim based on wrongful life. G

[9] Counsel for the defendants submitted that Friedman was correctly decided and that, supported as it is by the overwhelming weight of judicial authority in America, England, Canada and Australia, it should be followed in this Court and that the exception should be upheld. H

[10] Counsel for the plaintiffs submitted that this Court should not follow the decision in Friedman and that I should hold that a claim for wrongful life is not enforceable in this case under South African law

Louw J

[11] The exceptions taken by the defendants in this case may be summarised as follows: A

1.

The defendants' alleged conduct is not unlawful vis-à-vis B in that they did not owe the unborn foetus, and they did not owe B after his birth, a legal duty to inform the first plaintiff of the deformities and abnormalities in the foetus so that she would be in a position to exercise the choice to terminate the B pregnancy and, thereafter, to terminate B's existence while he was still unborn and, in this manner, to prevent B from being born at all with the inevitable disabilities.

2.

In South African law there is no basis for a claim for damages by a child born with disabilities in the circumstances alleged by the C plaintiffs. Allowing such a claim would require, first, a comparison to be made between B's existence after his birth in a deformed and disabled state, and his non-existence, and thereafter a quantification of the difference.

3.

Such claims as there might be for damages arising from the need for special medical treatment, special schooling and maintenance for B D lie with the plaintiffs, in their respective personal capacities for the loss suffered by them as the parents of a child born with disabilities, and are not claims which the child may bring, since he has suffered no determinable loss himself.

4.

The claim is bad in law, is against public policy and is contra bonos mores. E

[12] In Friedman the action was instituted by the mother and natural guardian of a child born with severe physical disabilities against a specialist gynaecologist, who, after performing certain tests, was alleged to have negligently failed to advise the plaintiff, who was pregnant at the time, that there was a high risk F that her child would be born with severe physical disabilities. The plaintiff alleged that, had she been properly advised of the risks of her child being born with severe physical disabilities, she would have chosen to terminate the pregnancy. The plaintiff claimed in her personal capacity for expenses of maintaining and rearing her G physically disabled child and for future medical and hospital treatment and other special expenses in respect of the child. This is the claim based on wrongful birth. In addition, the plaintiff claimed general damages and for loss of future income in her representative capacity on behalf of her child. This is the 'wrongful life' claim. The matter was decided on exception taken by the defendant against both claims. Goldblatt J held that the plaintiff's 'wrongful birth' claim H in her personal capacity was a claim recognised in South African law. In coming to this conclusion Goldblatt J said the following at 1139J - 1140C:

'A doctor acts wrongly if he either fails to inform his patient or incorrectly informs his patient of such information she should reasonably have in order to make an informed choice of whether I or not to proceed with her pregnancy or to legally terminate such pregnancy. The fault element of the delict is to be found in the foreseeability of harm which the doctor-patient relationship gives to the doctor. Once proper disclosure is not made and the patient is deprived of her option, it seems to me that the damages she has suffered by giving birth to a disabled child are clearly caused by the fault of the doctor, provided she J

Louw J

would have terminated the pregnancy if the information had been made available to her. A

I am accordingly satisfied that in regard to her claims in her personal capacity plaintiff's particulars of claim contain averments sufficient to sustain an action. This cause of action appears to me to be a logical extension of the principle enunciated by the Appellate Division in Edouard's case supra.' B

[13] The reference to Edouard's case is a reference to Administrator, Natal v Edouard, [6] a case of 'wrongful pregnancy' where the defendant administrator was held liable to the parents of a child for the costs of maintaining and supporting their healthy child born after a provincial hospital had, in breach of an agreement concluded with the parents for socio-economic reasons after the birth of their fourth child...