Stewart & another v Botha & another
[2007] JOL 19789 (C)
(Butterworths) / Not reported in any LexisNexis Butterworths printed series.
Case No: / 10929 / 04
Judgment Date(s): / 07 / 05 / 2007
Hearing Date(s): / None Indicated
Marked as: / Unmarked
Country: / South Africa
Jurisdiction: / High Court
Division: / Cape of Good Hope Provincial Division
Judge: / Louw J
Bench: / WJ Louw, J
Parties: / ElizabethGeorgina Elzona Stewart (1P), Brian Stewart (2P); Dr M Botha (1D), Dr S Smal (2D)
Appearance: / None Indicated
Categories: / Action – Civil – Substantive – Private
Function: / Confirms Legal Principle
Key Words
Delict – Claim for damages – Wrongful life – Existence of cause of action
Mini Summary
As parents of a child born with serious disabilities, the plaintiffs sued the general practitioner and obstetrician for damages. They averred that the defendants owed them and their child a legal duty to exercise the requisite care in treating and advising the first plaintiff during her pregnancy. The cause of complaint was the defendants’ failure to detect any abnormalities, it being alleged that had they been advised of such abnormality, the plaintiffs would have terminated the pregnancy.
The defendants raised an exception to the particulars of claim, pointing out that in our law, a claim for “wrongful life” does not exist, and therefore no cause of action was disclosed.
Held that damage is one of the elements of delictual liability. The plaintiff in a claim for damages must show that the conduct of the defendant has resulted in a harmful consequence. Two issues arise in regard to the element of damage. First, there must be proof on a balance of probability that the plaintiff suffered damage. Secondly, the quantification of such damage must be possible.
In the present case, it could not be shown that the plaintiff’s child could have a life any different from that to which he was born. The court accordingly upheld the exception and dismissed the claim.
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LOUW J
[1]The plaintiffs in this action for damages are the natural parents of Brian Stewart (to whom I shall refer as Brian) who was born on 4 August 1993 with severe physical disabilities. The plaintiffs' claims arise from Brian's birth in his disabled state and are brought against the general medical practitioner (the first defendant) and against the specialist obstetrician and gynaecologist (the second defendant), who treated and advised Brian's mother, the first plaintiff, during the course of her pregnancy with Brian.
[2]The first plaintiff, who is Brian's mother, claims in her personal capacity in contract, alternatively, in delict, for damages in the amount of R2,66m in respect of past and future medical expenses occasioned by Brian's condition, expenses in regard to special schooling for Brian and for the maintenance of Brian for the rest of his life, which is estimated to be 50 years.
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[3]Brian's father, the second plaintiff, sues in delict in his representative capacity as father and natural guardian of and on behalf of Brian for damages suffered by Brian in the amount of R2,41m in 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 Brian's claim). There are no claims on behalf of Brian for loss of future income and for general damages for pain and suffering and loss of amenities of life.
[4]The plaintiffs allege that the defendants were contractually bound, alternatively, were under a legal duty owed to the first plaintiff, alternatively, to Brian, at the time an unborn fetus in his mother's womb, to treat and advise Brian'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 fetus that could present at birth with a child who is severely disabled; that they failed to inform Brian's mother of the risk of a child being born with such abnormalities and that they failed to advise Brian's mother on a termination of the pregnancy. The plaintiffs further allege that had Brian's mother been advised of the high risk of the child being born with severe physical disabilities, she would have elected to terminate the pregnancy and that, but for the omissions by the defendants, Brian would not have been born at all and that he would not in present and in future have had to suffer the consequences of being born with serious and disabling physical deformities and abnormalities.
[5]It is common cause that the physical abnormalities and deformities of which Brian suffers are congenital in nature. The plaintiffs do not allege that any act or omission of
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either of the defendants caused or contributed to the disabilities and deformities suffered by Brian.
[6]Brian's claim has become known in academic writings and in judgments of our courts and the courts of other jurisdictions as a 'wrongful life' claim. The defendants contend that such a claim is not recognized 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.
[7]In Friedman v Glicksman1
Footnote /1
1996 (1) SA 1134 (W).
, 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–B of the judgment Goldblatt J explains the concepts 'wrongful pregnancy', 'wrongful birth' and 'wrongful life':
"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 the birth of the disabled child. The child argues that, but for the inadequate advice, it
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would not have been born to experience the pain and suffering attributable to the disability."
[8]The action for 'wrongful life' has been considered in a number of cases in America. In all but a few of those,2
Footnote /2
Turpin v Sortini Cal 643 P 2d 954; Harbison v Park-Davis Incorporated Wash 659 P 2d 483; Curlender v Bio-Science Laborotaries 106 Cal App 3d 811; Procanik v Cillo 478 A 2d 755.
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 another3
Footnote /3
[1982] 2 All ER 771 (CA).
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 Harrington v Stephens4
Footnote /4
(2006) HCA 15.
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 v Dominique5
Footnote /5
[2001] MBCA 122.
approved of the reasoning in Mckay and rejected the claim based on wrongful life.
[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, should be followed in this court and that the exception should be upheld.
[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.
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[11]The exceptions taken by the defendants in this case may be summarized as follows:
1.
The defendants' alleged conduct is not unlawful vis-a vis Brian in that they did not owe the unborn fetus and they did not owe Brian after his birth, a legal duty to inform the first plaintiff of the deformities and abnormalities in the fetus so that she would be in a position to exercise the choice to terminate the pregnancy and thereafter, to terminate Brian's existence while he was still unborn and, in this manner, to prevent Brian 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 plaintiffs. Allowing such a claim would require first, a comparison to be made between Brian'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 Brian 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.
[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
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was pregnant at the time, that there was a high risk 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 the expenses of maintaining and rearing her physically disabled child and for the 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 in her personal capacity was a claim recognized 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 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 would have terminated the pregnancy if the information had been made available to her.
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.
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[13]The reference to Edouard's case is a reference to Administrator Natal v Edouard6
Footnote /6
1990 (3) SA581 (AD).
, 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, failed to perform a tubal ligation procedure in order to render the wife sterile and to prevent the birth of further children.
[14]In holding that no claim for 'wrongful life' existed, Goldblatt J rejected the claim essentially on three grounds.7
Footnote /7
at 1142 I–1143C.
First that:
"it would be contrary to public policy to hold that it would be better for a party not to have the unquantifiable blessing of life rather than to have such life albeit in a marred way."
Secondly, that:
"to allow such a cause of action would open the door to a disabled child to sue its parents because they may have for a variety of reasons allowed such child to be born knowing of the risks inherent in such a decision. Merely to state this proposition is to indicate the unacceptable burden that would be placed on such unfortunate parents."
Thirdly:
"to allow damages on the basis alleged by the plaintiff is completely contrary to the measure of damage allowed for in the law of delict. The defendant was in no way responsible for the child's disabilities and yet he is being asked to compensate the child for such disabilities. This proposition is, in my view, illogical and contrary to
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our legal system. The only measure of damage can be the difference in value between non-existence and existence in a disabled state. No criteria, in law, can exist in establishing such difference or even in establishing whether any damage has been sustained."
[15]The decision in Friedman on the wrongful life claim is distinguishable on the facts from this case. In that case the mother's claim on behalf of her child was for general damages for pain and suffering and loss of amenities of life and for loss of future income. In this case, Brian's claim is for medical expenses, the cost of special schooling and for Brian's maintenance. However, Mr Oosthuizen, who appeared on behalf of the plaintiffs, did not seek to place any reliance on the distinction. In my view he was correct to do so. The distinction does not affect the principles here in issue.
[16]In concluding that a claim for 'wrongful life' did not exist in our law, Goldblatt J, quoted with approval the reasoning in the American decision in Speck v Finegold:8
Footnote /8
Pa 268 Super 342 (1979); 408 A 2d 496, at 508[7] (per Cercone J) and at 512 (per Spaeth J).
"In the instant case, we deny Francine's claim to be made whole. When we examine Francine's claim, we find regardless of whether her claim is based on "wrongful life" or otherwise, there is a failure to state a legally cognizable cause of action even though, admittedly, the defendants' actions of negligence were the proximate cause of her defective birth. Her claims to be whole have two fatal weaknesses. First, in appellate judicial pronouncements that hold a child has no fundamental right to be born as a whole, functional human being. Whether it is better to have never been born at all rather than to have been born with serious mental defects is a mystery more properly left to the philosophers and theologians, a mystery which would lead us into the realm of metaphysics, beyond the realm of our understanding or ability to solve. The law cannot assert a knowledge which can
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resolve this inscrutable and enigmatic issue. Second, it is not a matter of taking into consideration the various and convoluted degrees of the imperfection of life. It is rather the improbability of placing the child in a position she would have occupied if the defendants had not been negligent when to do so would make her non-existent. The remedy afforded an injured party in negligence is intended to place the injured party in the position he would have occupied but for the negligence of the defendant. Thus, a cause of action brought on behalf of an infant seeking recovery for a "wrongful life" on grounds she should not have been born demands calculation of damages dependent on a comparison between Hobson's choice of life in an impaired state and non-existence. This, the law is incapable of doing" (per Cercone J).
And in the same case:
"If it were possible to approach a being before its conception and ask it whether it would prefer to live in an impaired state, or not to live at all, none of us can imagine what the answer would be. We can only speculate or refer to various religious or philosophical beliefs. We cannot give an answer susceptible to reasoned or objective valuation" (per Spaeth J).
Goldblatt, J further agreed with the reasoning in Philips v United States,9
Footnote /9
508 F Supp 537 (1980).
where it was held that no cause of action exists in regard to a 'wrongful life' claim and with the following reasoning of the English Court of Appeal in McKay:10
Footnote /10
at 781e per Stephenson LJ and at 787h per Ackner LJ.
"To impose such a duty towards the child would, in my opinion, make a further inroad on the sanctity of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving..." (per Stephenson LJ at 781e).