Stewart and Another v Botha and Another

• Jurisdiction: South Africa
• Judge: Streicher JA, Nugent JA, Heher JA, Cachalia JA and Snyders AJA
• Judgment Date: 03 June 2008
• Docket Number: 340/07
• Hearing Date: 21 May 2008
• Counsel: PAL Gamble SC for the appellants. M Daling for the first respondent. GE van der Spuy for the second respondent.
• Court: Supreme Court of Appeal

Snyders AJA: H

[1] The appellant and his wife have a son, Brian, who was born on 4 August 1993 with severe congenital defects. These included a defect of the lower spine which adversely affects the nerve supply to the bowel, I bladder and lower limbs [1] as well as a defect of the brain. [2] The appellant's wife, as first plaintiff, instituted an action in the Cape High Court against

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the respondents, respectively, the general medical practitioner and A specialist obstetrician and gynaecologist whom she consulted during her pregnancy, for her special damages relating to the maintenance, special schooling, and past and future medical expenses consequent upon her son's condition. The appellant, as second plaintiff, on behalf of his minor son, instituted a delictual claim in the alternative to that of the first B plaintiff for the same damages. It is acknowledged that the main claim would be good in law, if it is still enforceable, and thus the same damages now claimed would be recoverable by the child's parents. The respondents excepted to the appellant's claim, which was upheld by Louw J, who dismissed the appellant's claim with costs. With the leave of that court the matter came on appeal to this court. C

[2] In the particulars of claim it is alleged that the respondents were, while treating the first plaintiff during her pregnancy, under a duty to detect any abnormalities in the foetus, to advise the first plaintiff thereof, who would have undergone a termination of pregnancy and consequently that Brian would not have D been born and would not have suffered from the severe physical handicaps that he does.

[3] The first respondent excepted to the appellant's claim on the basis that it does not disclose a cause of action, particularly as there is no duty on the first respondent to ensure that Brian was not born and that a claim that recognises such a duty would be contra bonos mores. The second E respondent alleged in his exception that the appellant's claim is 'bad in law, contra bonos mores and against public policy'.

[4] It is for the excipient to satisfy the court that the conclusion of law pleaded by the appellant cannot be supported by any reasonable F interpretation of the particulars of claim. [3] For this purpose the facts pleaded in the particulars of claim are accepted as correct. [4] There was no dispute between the parties that this approach was correct or that exception was not the appropriate stage at which to decide this matter. [5]

[5] The exceptions dispute the wrongfulness of the failure by the G respondents to have detected and informed the first plaintiff of congenital defects in the foetus she was carrying. As there has been a considerable amount of recent debate [6] on the subject and to provide focus in the current enquiry, it is necessary to revert back to the starting point in our law of delict when wrongfulness is to be decided. In Telematrix (Pty) Ltd H

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t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6) at 468 the following is stated: A

[12] The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject, is, as the Dutch author Asser points out, that everyone has to bear the loss he or she B suffers. The Afrikaans aphorism is that 'skade rus waar dit val'. Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss. But the fact that an act is negligent does not make it wrongful although foreseeability of damage may be a factor in establishing whether or not a particular C act was wrongful. To elevate negligence to the determining factor confuses wrongfulness with negligence and leads to the absorption of the English law tort of negligence into our law, thereby distorting it.

[13] When dealing with the negligent causation of pure economic loss it is well to remember that the act or omission is not prima facie wrongful ('unlawful' is the synonym and is less of a euphemism) and D that more is needed. Policy considerations must dictate that the plaintiff should be entitled to be recompensed by the defendant for the loss suffered (and not the converse as Goldstone J once implied unless it is a case of prima facie wrongfulness, such as where the loss was due to damage caused to the person or property of the plaintiff). In other words, conduct is wrongful if public policy considerations demand that E in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant.

[6] The enquiry as to negligence and wrongfulness is separate and distinct and should not be confused as to terminology or substance. [7]

F [7] Negligent conduct that causes physical damage to the person or property of another is prima facie wrongful. However -

the element of wrongfulness becomes less straightforward . . . with reference to liability for negligent omissions and for negligently caused pure economic loss. . . . In these instances, it is said, wrongfulness depends on the existence of a legal duty not to act negligently. The imposition of such G a legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms. [8]

[8] The application of criteria of public and legal policy has created precedent for the imposition of liability that caused pure economic loss. [9] When there exists no precedent, as in the present case, the process H involves -

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policy decisions and value judgments which 'shape and, at times, A refashion the common law [and] must reflect the wishes, often unspoken, and the perceptions, often dimly discerned, of the people' (per MM Corbett in a lecture reported sub nom 'Aspects of the Role of Policy in the Evolution of the Common Law' in (1987) SALJ 104 at 67). What is in effect required is that, not merely the interests of the parties inter se, but also the conflicting interest of the community, be B carefully weighed and that a balance be struck in accordance with what the Court conceives to be society's notions of what justice demands. [10]

This approach, since the advent of the Constitution, is to be supplemented and enriched by the imperatives embodied in the Constitution. [11] C

[9] Claims arising from a similar context, although distinctly different, have received legal recognition on accepted principles and norms in our courts and many international jurisdictions. In Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) the...