Stewart and Another v Botha and Another (340/07) [2008] ZASCA 84; 2008 (6) SA 310 (SCA) ; [2009] 4 All SA 487 (SCA) (3 June 2008)

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[2008] ZASCA 84
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Stewart and Another v Botha and Another (340/07) [2008] ZASCA 84; 2008 (6) SA 310 (SCA) ; [2009] 4 All SA 487 (SCA) (3 June 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
                                                                                              Â
REPORTABLE
Case number : 340/07
In the matter between :
ELIZABETH
GEORGINA ELZONA STEWART             FIRST APPELLANT
BRIAN STEWART                                                            Â
SECOND
APPELLANT
and
DR M BOTHA                                                                     Â
FIRST
RESPONDENT
DR S SMAL                                                            Â
            SECOND
RESPONDENT
CORAM :                   STREICHER, NUGENT, HEHER,
CACHALIA JJA
et
SNYDERS AJA
DATE :                       21
MAY 2008
DELIVERED :          3 JUNE
2008
Summary
:                 Â
Delict – liability of medical practitioner to a child
born with congenital defects – failure to inform mother who would have

terminated pregnancy – wrongfulness – legal policy.
Neutral citation
:       Â
Stewart v Botha
 (340/2007)
[2008] ZASCA 84
(3 JUNE 2008)
JUDGMENT
SNYDERS AJA
/
SNYDERS AJA
:
[1]        The appellant
and his wife have a son, Brian, who was born on 4 August 1993 with severe
congenital defects.Â
These included a defect of the lower spine which adversely
affects the nerve supply to the bowel, 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 the respondents,
respectively
the general medical practitioner and specialist obstetrician and
gynaecologist whom she consulted during her pregnancy, for her
special damages
relating to the maintenance, special schooling, 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 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.
[2]        In the
particulars of claim it is alleged that the respondents, whilst treating the
first plaintiff during her
pregnancy, were 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 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 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 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]
Â
[5]        The exceptions
dispute the wrongfulness of the failure by the 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 v
Advertising Standards Authority SA
2006 (1) SA 461
(SCA) at 468 the
following is stated:
‘[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 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 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.Â
‘[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 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.)Â
In other words, conduct
is wrongful if public policy considerations demand that
in the circumstances the plaintiff has to be compensated for the loss caused
by
the negligent act or omission of the defendant.’Â
[6]        The enquiry as
to negligence and wrongfulness is separate and distinct and should not be
confused as to terminology
or substance.
[7]
Â
[7]        Negligent
conduct that causes physical damage to the person or property of another is prima
facie wrongful.Â
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 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]
Â
When there exists no precedent, as in the present case, the process involves ‘.
. . policy decisions and value judgments which
“shape and, at times, refashion
the common law [and] must reflect the wishes, often unspoken, and the
perceptions, often dimly
discerned, of the people” (
per
M M Corbett in a
lecture reported
sub num
“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 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]
Â
[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 v Santam Insurance Co Ltd
1963
(2) SA 254
(W) the action of a child to recover damages for an injury done to
it whilst
in utero
was recognised. The claim by parents, against a
hospital that agreed and failed to perform a surgical tubal ligation in order
to
render the mother sterile, for the cost of maintaining and supporting a
child that was born afterwards,
[12]
was
granted in
Administrator, Natal v Edouard
[1990] ZASCA 60
;
1990 (3) SA 581
(A). The claim
of a mother against a medical practitioner for not having detected and informed
her of the congenital defects in
her foetus which she would have aborted
[13]
had she known was recognised in
Friedman
v Glicksman
1996 (1) SA 1134
(W) and survived the exception taken against
it. In the same case a claim of the child, the same as is presently under
consideration,
received the attention of a South African court for the first
time and was refused on public policy considerations.
[10]      In these cases
the claim that arose and was awarded was that of the parents who sought to
recover the additional
financial burden they had to bear in consequence of the
negligence. There is no question in those cases of the essential dilemma
that
arises in the case before us, as it is not questioned in those cases whether
the child would have been better off not to have
been born. Those cases
commence with an acceptance of the fact that the birth has occurred and seeks
to address the consequences
of the birth.
[11]      At the core of
cases of the kind that is now before us is a different and deeply existential
question:  was it preferable
– from the perspective of the child – not to have
been born at all? If the claim of the child is to succeed it will require
a
court to evaluate the existence of the child against his or her non-existence
and find that the latter was preferable.
[12]      There are courts
that have embarked on this enquiry. By far the majority of jurisdictions
worldwide have refused
claims of this nature.
[14]
Â
The leading case in England,
McKay v Essex Area Health Authority
[1982]
QB 1166
(CA) did so on an analysis of the common law and also interpreted the
Congenital
Disabilities (Civil Liability) Act
1976 (UK) to be prohibitive of such
claims. Common law jurisdictions in Canada, Australia
[15]
and Singapore have refused claims of this
nature, but in Israel, in the matter
Zeitsov v Katz
(1986) 40 (2) PD 85
(Isr) the child’s claim was granted.
[13]      In continental
jurisdictions
[16]
the
trend is similar, but Holland in the matter
Leids Universitair Medisch
Centrum v Molenaar
no. C03/206, RvdW 2005, 42 provided the exception. Interestingly,
during the period 1996 until 2001 French courts allowed such claims.Â
This
resulted in political pressure from groups representing disabled people, who
advocated the view that the courts in these decisions
treated their lives as
inferior to non-existence, and groups representing gynaecologists,
obstetricians and ultra-sonographers.
The political pressure ultimately
resulted in legislative reaction when on 4 March 2002 an act was passed that
placed France in
line with the majority of jurisdictions in the world.
[14]      In the United
States of America the refusal of the claim in the matter
Gleitman v Cosgrove
49 NJ 22 (1967) represented the conventional view for many years until the
Appellate Division of the New York Supreme Court, in
Park v Chessin
400
N.Y.S. 2d 110 (1977) allowed a claim of this nature for special damages whilst
at the same time refusing a claim for general
damages. Thereafter the Supreme
Courts of California,
[17]
Washington
[18]
and New Jersey
[19]
followed suit.
[15]      The nature and
extent of the debate that has been raging is apparent from the cases and
articles referred to and
many more.
[20]
  The
debate illustrates that for every argument there has been a counter argument
and vice versa and there are hardly novel contentions
being raised. Like Omar
Khayam I have heard ‘Great Argument About it and about: but evermore Came out
by the same Door as in
I went.’  In view of the conclusion that I have arrived
at I do not think it necessary to evaluate all the arguments. I intend
to refer
to the most significant issues in the debate only to demonstrate the kind of
difficult questions that arise.
[16]      Whilst bearing
in mind that the negligence of the medical practitioners did not cause the congenital
defects, the
starting point of the enquiry was aptly stated in the matter
Speck
v Finegold
408 A 2d 496
at 508 para 7 and 512:
‘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 field of metaphysics, beyond the realm
of
our understanding or ability to solve. The law cannot assert a knowledge which
can resolve this inscrutable and enigmatic issue.’
(per Cercone J)
‘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 cannot give an answer susceptible to reasoned or

objective valuation.’
(per Spaeth J)Â
[17]      The critics of
this argument refer to the function often performed by courts of law to assess
damages in difficult
cases like pain, suffering and loss of amenities of life. This
counter argument does not address the real challenge, namely that
it is
impossible to assess the harm caused, not merely difficult, because it is
essential to such a decision that the court finds
that non-existence is
preferable to life.
[18]      As a further development
to that argument it is often stated that delictual damages seek not so much to
punish the
wrongdoer, but to compensate the plaintiff by seeking to place him
or her in the position he or she would have been in if the negligence
did not
occur. If the negligence did not occur the child would not have been born,
which brings one back to the questionable assessment.
[19]      It has often
been argued that allowing the claim would open the door to claims by children
against their mothers
in circumstances where the mother has been informed of
the congenital defects but chose not to terminate the pregnancy. The counter

argument is that it is inconceivable that a mother’s choice not to avail
herself of her right under certain circumstances to
terminate the pregnancy
[21]
would be regarded as unlawful.  Furthermore,
allowing a claim against one category of defendants could not offer a
principled
basis on which to allow or refuse a claim against another category
of defendants. Â
[20]      In opposition to
the claim it has been argued that to allow it would cause medical practitioners
to be overly cautious
and advise termination of pregnancy in order to avoid the
likelihood of liability. This argument has been said to lose sight of
the
protection the law offers for behaviour that meets the standard of a reasonable
person and that if the recommendation of a
termination of pregnancy is followed
and turns out to have been unreasonably advised, it could equally give rise to
a claim by
the parents against the medical practitioner, hence the likelihood
of liability is not avoided.
[21]      Caution has been
expressed that allowing the claim could encourage claims for minor defects. It
has been recognised
that this cause of action should only be allowed in
instances of grave defects.
[22]
  A
measure of gravity can only ever be subjectively applied and is so relative
that it is completely uncertain and undesirable.
It could also be that the more
serious the disability the less possible it may be to appreciate the suffering
or lack thereof.
[22]      Counsel for the
appellant submitted that an application of ss 11, 12(2)(a), 27, 28(1)(d) and
28(2) of the Constitution
would lead to a conclusion that the claim should be
awarded. No suggestion was made which common law principle or principles are
to
be developed or how the application of those sections would result in an award
of the claim. It was further broadly submitted
that advances in medical
technology, the need for professionals not to act negligently, progressive
reproductive legislation and
less than supportive social security services
indicate that the ‘time is right’ for claims of this nature.
[23]      Section 11 of
the Constitution gives ‘[e]veryone . . . the right to life’. If anything, a
consideration of the
sanctity of life would lead to a conclusion to refuse the
claim as a decision to award it would entail, of necessity, an acceptance
that
Brian’s life is worse than non-existence and therefore a violation of that very
principle.
[24]      Section 12(2)(a)
of the Constitution
[23]
in the
context of this case relates to the first plaintiff’s rights and would be
relevant to any duty owed to her, which is not
presently under consideration. It’s
only other relevance is to causation as accepted in this case, that the first
plaintiff would
have had the right to and would have terminated her pregnancy
if she was informed of the congenital defects of her foetus.
[25]      Sections 27
[24]
, 28(1)(d)
[25]
and 28(2)
[26]
of the
Constitution is relevant to the evaluation of considerations of public policy
but in giving content to those rights the
question where liability in the
present context should rest, is not answered. Nobody would deny that Brian’s
best interest would
be served if he had access to all possible medical
provision for his condition, but the question remains who should be liable.
[26]      It is clear that
the debate is wide ranging, diverse and complex even before religious,
theological or philosophical
arguments are considered.
[27]      In those
jurisdictions where these claims have been allowed the debate has not been
resolved, but an answer has simply
been favoured on selected policy
considerations without striking a balance that takes all the relevant norms and
demands of justice
into account and without resolving the impossible comparison
between life with disabilities and non-existence. When one considers
the
content of the duty owed to the child by the medical practitioners, the
corresponding right, wrongfulness, harm or damages,
the choice between life
with disabilities on the one hand and non-existence on the other, is
unavoidable. Making that choice in
favour of non-existence not only involves a
disregard for the sanctity of life and the dignity of the child,
[27]
but involves an arbitrary, subjective
preference for some policy considerations and the denial of others. Â
[28]      The essential
question that is asked when enquiring into wrongfulness for purposes of
delictual liability is whether
the law should recognise an action for damages
caused by negligent conduct
[28]
and
that is the question that falls to be answered in this case.  I have pointed
out that from whatever perspective one views
the matter the essential question
that a court will be called upon to answer if it is called upon to adjudicate a
claim of this
kind is whether the particular child should have been born at
all.  That is a question that goes so deeply to the heart of what
it is to be
human that it should not even be asked of the law.  For that reason in my view
this court should not recognise an
action of this kind.Â
[29]      For these
reasons I conclude that the court below correctly refused the claim on
exception.
[30]      The appeal is
dismissed with costs.
…………………….
S SNYDERS
ACTING JUDGE OF APPEAL
Concur:
STREICHER
NUGENT
HEHER
CACHALIA JJA
[1]
In
medical terms known as
lumbo-sacral
myelomeningocele, commonly referred to as spina bifida.
[2]
In medical terms
known as
hydrocephalus.
[3]
Minister of
Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 318D-E;Â
First National Bank of Southern Africa  Ltd v
Perry
NO
2001 (3) SA 960
(SCA) at 965 para 6.
[4]
Marney v
Watson
1978 (4) SA 140
(C) at 144F-G;Â
Trustees, Two Oceans Aquarium Trust v Kantey & Templer
(Pty) Ltd
2006 (3) SA 138
(SCA) at 143I-J.
[5]
See further
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
2006 (1) SA 461
(SCA) at
465G-466A on the suitability of this approach in certain circumstances.
[6]
Anton Fagan ‘Rethinking wrongfulness in
the law of delict’
(2005) 122
SALJ
90
;  J Neethling ‘The conflation of
wrongfulness and negligence: Is it always such a bad thing for the law of
delict?’
(2006) 123
SALJ
204
;  R W Nugent ‘Yes, it is always a bad thing
for the law: A reply to Professor Neethling’ (2006) 123
SALJ
557.
[7]
Trustees, Two
Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA) at
144 para 11;Â
Telematrix
at 469B-E;  R W Nugent at 558.
[8]
Trustees, Two
Oceans Aquarium Trust
at
144B-C.
[9]
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A);Â
Indac Electronics (Pty) Ltd v Volkskas
Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(AD);Â
Mukheiber v Raath
1999 (3) SA 1065 (SCA).
[10]
Minister of
Law & Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 318E-H.
[11]
Olitzki
Property Holdings v State Tender Board
2001 (3) SA 1247
(SCA) at 1257D-F.
[12]
Claims of this nature have been referred
to as ‘wrongful birth’, ‘wrongful pregnancy’ and ‘wrongful conception’ claims

in contrast to the ‘wrongful life’ claims which is the one involved in the
present case. Although the use of this terminology
is unfortunate and has been
widely criticised for that reason, it is persistently used as a convenient
reference. For the criticism
of the use of these terms see the minority
judgment of Kirby J in
Harriton v Stephens
[2006] HCA 15
;
(2006) 226 CLR 52.
I
consciously refrain from using it in this judgment.
[13]
This claim is
also referred to in literature and judgments as ‘wrongful birth’ claims.
[14]
For a very helpful summary of worldwide
decisions in claims of this nature, see Ronen Perry ‘It’s a Wonderful Life’
Cornell
Law Review
93 (2008) 329.
See further
Minister of Safety and Security v Van
Duivenboden
2002 (6) SA 431
(SCA) at 444 para 16 on the relevance and role
of decisions in foreign jurisdictions on the consideration of public policy in
a
case.
[15]
The most recent and much discussed
decision in Australia being that of
Harriton v Stephens
[2006] HCA 15
;
(2006) 226 CLR
52
which was decided 6:1 in favour of refusing the claim.
[16]
A thorough discussion on the relevant
issues involved pertaining to a decision by the Bundesgerichtshof (sixth Civil
Division) appears
in B S Markesinis
The German Law of Torts
3 ed p142.
[17]
Turpin v Sortini
31 Cal 3d 220
(1982).
[18]
Harbeson v
Parke Davis Inc
98 Wash
2d 460
(1983).
[19]
Procanik v
Cillo
97 NJ 339 (1984).
[20]
Evelyn Ellis and
Brenda McGivern ‘The wrongfulness or rightfulness of actions for wrongful life’
(2007) 15
Tort L Rev
135 provides a recent collation of authorities;Â
See also Ronan Perry supra.
[21]
In our law in
terms of
The Choice of
Termination of Pregnancy Act
92 of 1996.
[22]
In
Zeitsov v Katz
40(2) P.D. 85 (S.Ct. 1986) this problem was stated
but not resolved.
[23]
Section 12(2)(a):
‘Everyone has the right to bodily and psychological integrity, which includes
the right to make decisions concerning
reproduction.’Â
[24]
Section 27of the Constitution provides for
the right of everyone to health care services, sufficient food and water,
social security,
social assistance and emergency medical treatment and the
obligation of the state to take reasonable legislative measures, within
its
resources, to achieve the realisation of these rights.
[25]
Section 28(1)(d):  ‘Every child has the
right to be protected from maltreatment, neglect, abuse or degradation.’Â
[26]
Section 28(2):  ‘A child’s best interests
are of paramount importance in every matter concerning the child.’Â
[27]
Sections 10 and
11 of the Constitution 1996.
[28]
Minister of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 12 E-F.Â