Stewart and Another v Botha and Another

• Jurisdiction: South Africa

Stewart and Another v Botha and Another
2008 (6) SA 310 (SCA)

2008 (6) SA p310

Citation	2008 (6) SA 310 (SCA)
Case No	340/07
Court	Supreme Court of Appeal
Judge	Streicher JA, Nugent JA, Heher JA, Cachalia JA and Snyders AJA
Heard	May 21, 2008
Judgment	June 3, 2008
Counsel	PAL Gamble SC for the appellants.; M Daling for the first respondent.; GE van der Spuy for the second respondent.

Flynote : Sleutelwoorde H

Negligence — Liability — Wrongful birth and wrongful life actions — Wrongful life — Child born with severe congenital defects — Whether mother entitled to sue medical practitioners for future damages on behalf of child — Practitioners having negligently failed to detect and inform mother of I congenital defects in circumstances in which imparting of information would have led to decision by mother to terminate pregnancy — Viability of claim — Claim requiring legally untenable decision whether better for child not to have been born — Claim not viable.

Headnote : Kopnota

In an action in the High Court against the medical practitioners who attended J upon his wife during her pregnancy with their minor son, the appellant

2008 (6) SA p311

claimed damages in delict on behalf of his son consequent upon the fact A that he was born with severe congenial defects, namely, damages for maintenance, special schooling and past and future medical expenses. He alleged that the respondents' negligence subsisted in their failure to have detected the congenital abnormalities in the foetus and to have informed his wife of the defects, who would have terminated the pregnancy, with the result that his son would not have been born and would not have suffered B from the severe physical handicaps from which he suffered. The respondents excepted to the appellant's claim as not disclosing a cause of action, as being contra bonos mores and against public policy, ie they disputed the wrongfulness element of the appellant's claim. The High Court upheld the exception and dismissed the appellant's claim. In an appeal to the Supreme Court of Appeal the court recognised the parents' claim for damages C flowing from the child's condition, but drew a distinction between the parents' claim and that of the child for the same damages.

Held, that conduct which caused loss to another was actionable only if, in addition to being negligent, it was wrongful, ie if public-policy considerations demanded that, in the particular circumstances, the plaintiff had to be compensated for his or her loss. (Paragraph [5] at 314C.) D

Held, further, that where the conduct causing the loss was an omission rather than a positive act, it was considered to be wrongful only where there existed a legal duty on the defendant not to act negligently in the circumstances. In turn, whether or not there existed a legal duty not to act negligently was a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms. (Paragraph [7] E at 314F - G.)

Held, further, that the decided cases arising from a similar context involved claims by parents to recover the additional financial burden in consequence of the negligence. The question therefore did not arise in any of those cases whether the child would have been better off had he or she not been born. In the present case, however, if the child's claim were to succeed, the court F would have to find that he would have been better off had he not been born. (Paragraphs [10] - [11] at 315G - 316B.)

Held, further, that the question whether the particular child should have been born at all was a question that went so deeply to the heart of what it was to be human that it should not even be asked of the law. For that reason, the court should not recognise an action of that kind. (Paragraph [28] at 319F.) G

Held, further, that the court below therefore correctly refused the claim on exception. (Paragraph [29] at 319G.) Appeal dismissed. The decision in Stewart and Another v Botha and Another 2007 (6) SA 247 (C) (2007 (9) BCLR 1012) upheld.

Cases Considered

Annotations H

Reported cases

Southern African cases

Administrator, Natal v Edouard 1990 (3) SA 581 (A): distinguished

First National Bank of Southern Africa Ltd v Perry NO and Others 2001 (3) SA 960 (SCA) ([2001] 3 All SA 331): referred to I

Friedman v Glicksman 1996 (1) SA 1134 (W): distinguished

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A): referred to

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A): referred to

Marney v Watson and Another 1978 (4) SA 140 (C): referred to J

2008 (6) SA p312

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): dictum at 318E - H applied A

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): dictum in para [12] applied

Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA) ([1999] 3 All SA 490): referred to

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) (2001 (8) BCLR 779): dictum in para [12] applied B

Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W): distinguished

Steward and Another v Botha and Another 2007 (6) SA 247 (C) (2007 (9) BCLR 1012): upheld on appeal

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): dictum at 468 applied C

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240): dictum in para [10] applied.

Foreign cases

Gleitman v Cosgrove 49 NJ 22 (1967): referred to D

Harbeson v Parke Davis Inc 98 Wash 2d 460 (1983): referred to

Harriton v Stephens [2006] HCA 15 ((2006) 226 CLR 52; (2006) 226 ALR 391): referred to

Leids Universitair Medisch Centrum v Molenaar No C03/206 RvdW 2005, 42: E referred to

McKay v Essex Area Health Authority [1982] QB 1166 (CA) ([1982] 2 All ER 771): referred to

Park v Chessin 400 NYS 2d 110 (1977): referred to

Procanik v Cillo 97 NJ 339 (1984): referred to

Speck v Finegold 408 A 2d 496: dictum at 508 para [7] and 512 applied

Turpin v Sortini 31 Cal 3d 220 (1982): referred to F

Zeitsov v Katz (1986) 40 (2) PD 85 (Isr): referred to.

Case Information

Appeal from a decision in the Cape Provincial Division (Louw J). The facts appear from the reasons for judgment.

PAL Gamble SC for the appellants.

M Daling for the first respondent. G

GE van der Spuy for the second respondent.

Cur adv vult.

Postea (June 3).

Judgment

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

2008 (6) SA p313

Snyders AJA

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...