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[2014] ZACC 34
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H v Fetal Assessment Centre (CCT 74/14) [2014] ZACC 34; 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) (11 December 2014)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 74/14
In
the matter between:
H
..................................................................................................................................................
Applicant
and
FETAL
ASSESSMENT
CENTRE
........................................................................................
Respondent
Neutral
citation:
H v Fetal Assessment
Centre
[2014] ZACC 34
Coram:
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J
Heard
on:
28 August 2014
Decided
on:
11 December 2014
Summary:
Section 28(2) of the Constitution —
child’s best interests must be considered in determining
whether to allow the child
to claim compensation for a life with
disability in “wrongful life” cases
Section
39(1) of the Constitution — may consider foreign law in
interpreting the Bill of Rights
Section
39(2) of the Constitution — development of the common law —
High Court incorrectly dismissed claim on the basis
of the exception
Complex
factual and legal considerations — inappropriate to make a
final determination on the viability of the child’s
claim on
the record — High Court must make the determination after
considering the elements of the law of delict
ORDER
On
appeal from the Western Cape Division of the High Court, Cape Town
(Baartman J):
1.
Leave to appeal is granted.
2.
The appeal succeeds with costs, including the costs of two counsel.
3.
The order of the High Court is set aside and replaced with:
“
The
plaintiff is granted leave to amend the particulars of claim within
14 days.”
JUDGMENT
FRONEMAN
J (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Leeuw AJ, Madlanga
J, Nkabinde J and Van der Westhuizen J concurring):
Introduction
[1]
Prospective
parents, who are fortunate enough to have access to that kind of
medical care, often obtain medical advice during pregnancy
to
ascertain whether their child will be born in good health. If
they are told that the child will probably suffer from a
serious
medical condition or congenital disability, the mother may choose not
to give birth to the child. That choice is
given to her under
South African law.
[1]
Our
law also recognises a claim by the parents for patrimonial damages in
circumstances where that kind of medical advice
should have been
given to them, but was negligently not provided.
[2]
[2]
Until
now, however, our law has denied the child any claim in those
circumstances.
[3]
The
question for decision here is whether that should change.
[3]
The applicant is a boy who was born with
Down syndrome in 2008. His mother instituted a claim on his
behalf (child’s
claim) in the Western Cape Division of the High
Court, Cape Town (High Court) for damages against the respondent, the
Fetal Assessment
Centre (Centre). The claim is based on the
alleged wrongful and negligent failure of the Centre to warn the
mother that there
was a high risk of the child being born with Down
syndrome. It is alleged that had she been warned she would have
chosen
to undergo an abortion. The child claimed special
damages for past and future medical expenses and general damages for
disability
and loss of amenities of life. The Centre excepted
to the claim as being bad in law, in not disclosing a cause of action
recognised by our law.
[4]
The
particulars of claim on behalf of the child are not a model of
clarity. They are framed in terms of a “duty of care”
owed to the child’s mother, albeit in her representative
capacity as the child’s mother and natural guardian, and allege
a failure on the part of the Centre in a number of respects “[i]n
breach of [that] duty of care, and
therefore
negligently”.
[4]
Those are terms more appropriate to the tort of negligence in English
law and do not assist in determining the proper bounds
of liability
in terms of the wrongfulness requirement of our law of delict.
The exception, in turn, is also based on the
assumption that the
common law of delict currently does not recognise that kind of a
claim.
[5]
The
High Court upheld the exception and dismissed the claim with costs.
It did so in reliance on the Supreme Court of Appeal’s
decision in
Stewart
.
[5]
[6]
The
approach in
Stewart
was that recognising a child’s claim would be to make a
pronouncement on a question that “should not even be asked
of
the law”.
[6]
The
Supreme Court of Appeal distinguished the parents’ claim from
that of a child:
“
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.”
[7]
This
was, however, to be distinguished from the child’s claim:
“
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.”
[8]
And,
finally:
“
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 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.”
[9]
(Emphasis added and footnote omitted.)
[7]
The child seeks leave to appeal directly to
this Court against the High Court’s decision. He contends
that in the particular
circumstances it is reasonable and in the
interests of justice to do so, given that an appeal to the Supreme
Court of Appeal is
likely to be futile in light of its relatively
recent decision in
Stewart
.
Issues
[8]
The following issues arise:
(a)
Should leave to appeal be granted?
(b)
If leave is granted, was the exception procedure appropriate?
(c)
The merits of the appeal.
(d)
Order and costs.
Leave
to appeal
[9]
Leave to appeal must be granted. The
applicant seeks the development of the common law to allow for the
recognition of the
child’s claim. That is an issue of
major legal and constitutional importance. Prospects of success
exist. The
Supreme Court of Appeal has already given a
decision setting its face against recognition of the child’s
claim. This
is not a decisive consideration because the
possibility is always there that it could be persuaded to change
course. But,
again, it may not. Usually this Court will
be deferent in allowing the common law to be developed in the High
Court and the
Supreme Court of Appeal. But here, as will be
seen, the outcome of this appeal will allow the High Court and, if
necessary,
later the Supreme Court of Appeal to play a significant
role in the further development of the common law, within the
guidelines
of this judgment.
Was
the exception procedure appropriate?
[10]
In
the High Court the matter was decided on exception. Exceptions
provide a useful mechanism “to weed out cases without
legal
merit”, as Harms JA said in
Telematrix
.
[10]
The test on exception is whether on all possible readings of
the facts no cause of action may be made out. It is for
the
excipient to satisfy the court that the conclusion of law for which
the plaintiff contends cannot be supported on every interpretation
that can be put upon the facts.
[11]
[11]
This
Court has decided appeals in matters where exceptions were
upheld.
[12]
On other
occasions it considered that the question of the development of the
common law would be better served after hearing
all the evidence. In
Carmichele
[13]
this Court held that, as in some cases on exception, it was also
better not to decide issues about the development of the common
law
by an order granting absolution from the instance at the end of a
plaintiff’s case in a trial:
[14]
“
There
may be cases where there is clearly no merit in the submission that
the common law should be developed to provide relief to
the
plaintiff. In such circumstances absolution should be granted.
But
where the factual situation is complex and the legal position
uncertain, the interests of justice will often better be served
by
the exercise of the discretion that the trial Judge has to refuse
absolution
.
If this is done, the facts on which the decision has to be made
can be determined after hearing all the evidence, and the
decision
can be given in the light of all the circumstances of the case, with
due regard to all relevant factors.”
[15]
(Emphasis added.)
[12]
There
is no general rule that issues relating to the development of the
common law cannot be decided on exception, but where the
“factual
situation is complex and the legal position uncertain” it will
normally be better not to do so.
[16]
Are the facts and legal norms applicable here complex and
uncertain?
[13]
Section
39(2) of the Constitution requires that courts must, when developing
the common law, promote the “spirit, purport
and objects of the
Bill of Rights”. Development of the common law may take
place in more than one manner. In
K
,
[17]
O’Regan J, relying on the judgment of Moseneke J in
Thebus
,
[18]
explained this:
“
It
is necessary to consider the difficult question of what constitutes
‘development’ of the common law for the purposes
of
section 39(2). . . .
The
overall purpose of section 39(2) is to ensure that our common
law is infused with the values of the Constitution. It
is not
only in cases where existing rules are clearly inconsistent with the
Constitution that such an infusion is required. The
normative
influence of the Constitution must be felt throughout the common law.
Courts making decisions which involve the
incremental
development of the rules of the common law in cases where the values
of the Constitution are relevant are therefore
also bound by the
terms of section 39(2). The obligation imposed upon courts by
section 39(2) of the Constitution is thus
extensive, requiring courts
to be alert to the normative framework of the Constitution not only
when some startling new development
of the common law is in issue,
but in all cases where the incremental development of the rule is in
issue.”
[19]
[14]
Our
common law at present does not recognise a child’s delictual
claim for damages arising from a negligent pre-natal misdiagnosis
in
relation to congenital medical conditions or disabilities. The
facts pleaded in the child’s particulars of claim
are not “new”
facts that will bring into play only incremental development of the
common law. The development
of the common law at stake here is
of the kind where “a common-law rule is changed altogether, or
a new rule is introduced”.
[20]
In the former kind of case a final decision on whether the
common law should be developed may in appropriate circumstances
be
capable of being decided on exception, but in the latter situation it
will normally be better to make a final decision only
“after
hearing all the evidence, and the decision can be given in the light
of all the circumstances of the case, with due
regard to all relevant
factors”.
[21]
[15]
In
K
this
Court warned against sterilising the common law from normative,
social or economic considerations by clothing its vicarious
liability
principles in factual garb only:
“
Denying
that the principles bear such normative implications will only
bedevil the exercise by rendering inarticulate premises that
in a
democracy committed to openness, responsiveness and accountability
should be articulated.”
[22]
[16]
The development of the law of delict to
allow a child’s claim is likely to have important normative
implications. At
first blush it would thus appear that a final
decision on the viability of the child’s claim should not have
been made on
exception.
[17]
Not so, argued the Centre. It
contends that this is not a case where normative considerations are
hidden by the current state
of the common law or where the factual
situation is complex. It is simply a case where no change of a
common law rule, or
development of a new rule, can be made to
accommodate the child’s claim, because it is legally impossible
to do so, no matter
what the particular facts may be.
[18]
If that contention is correct, the appeal
must be decided on the exception and it must fail. But it is
not correct.
[19]
For
most people the birth of a child and life itself are causes for
celebration. But that does not mean that the reality of
being
born into a life with disability should be ignored by the law. The
child’s claim has been dubbed here and internationally
as one
for “wrongful life”. It has been pointed out that
this term is unfortunate and wrong.
[23]
And indeed it is. The legal issue is not the “wrongful
life” of the child, but whether the law should allow
a child to
claim compensation for a life with disability.
[20]
Characterising the issue as one of
“wrongful life” avoids direct engagement with this
substantive issue. By so
framing it, the issue is presented as
one of a logical paradox, said to be impossible for the law to
answer. The paradox
is this. The medical condition or
congenital disability is not one caused by the health practitioner’s
negligence.
If the negligent conduct did not occur, the mother
would have been told of the risk and the pregnancy would have been
terminated.
This is said to result in having to compare life
with non-existence, something that creates insurmountable problems at
various
stages of the enquiry into the elements or requirements of
our law of delict – wrongfulness, causation, foreseeability in
negligence and in the quantification of damages.
[21]
This
was, in the end, also the approach of the Supreme Court of Appeal in
Stewart
.
It found that for a child’s claim to succeed it would
require a court to evaluate the existence of children against
their
non-existence, an exercise “that goes so deeply to the heart of
what it is to be human that it should not even be asked
of the
law”.
[24]
[22]
It is as well to acknowledge the logic of
this paradox right at the outset. But more important is to
recognise that framing
the question in this manner might
inadvertently disguise a value choice. If one says that no harm
has been done to the child
by the medical expert’s negligence,
why do we say so? The answer given in our law and in many other
jurisdictions is that
we can establish harm only by comparing
existence with non-existence. But this risks hiding a value
choice. And it
is a choice that judges under our Constitution
need to acknowledge openly and defend squarely when they make it.
[23]
Not
to do so says that there are areas of life and law where the values
of the Constitution may be ignored. That is not the
kind of
choice that our Constitution allows judges to make. They must
ensure that the values of the Constitution underlie
all law, not that
some part of the law can exist beyond the reach of constitutional
values.
[25]
[24]
So acknowledging the paradox is not
necessarily dispositive of the real issue, namely whether our
constitutional values and rights
should allow the child, in the
circumstances of this case, to claim compensation for a life with
disability. It may well
be that the conclusion should be drawn
that they do not so allow, but it is not a decision that lies outside
the law.
[25]
We thus need to go further. If,
despite this clarification that the proper approach involves an
inevitably evaluative legal
choice in accordance with the
Constitution, we nevertheless conclude that the claim cannot be
sustained at all, no matter what
the facts of a particular case may
be, the appeal must still fail on the basis of the exception.
[26]
We
cannot do that, however, on the basis of the exception before us if
the “factual situation is complex and the legal position
uncertain”.
[26]
For
if we reach the conclusion here that it is not impossible to
recognise the claim, depending on the facts that might emerge
at the
trial, the appeal must succeed. The High Court may then
consider all the relevant facts and circumstances in order
to decide
whether the child’s claim falls within this scope, or even some
broader version of it.
Substantive
merits of the appeal
[27]
Having
established that the approach of the Supreme Court of Appeal in
Stewart
[27]
appears not to have given sufficient recognition to the need to place
the viability of the child’s claim within the normative
framework of the Constitution, it may be helpful to consider how this
kind of problem has been dealt with in other jurisdictions.
Comparative
law
[28]
Foreign
law may be used as a tool in assisting this Court in coming to
decisions on the issues before it. The Constitution
provides
that “[w]hen interpreting the Bill of Rights, a court, tribunal
or forum . . . may consider foreign law”.
[28]
Thus, unlike in the case of international law,
[29]
this Court may have recourse to comparative law but is not obliged to
consider it.
[29]
This
Court has on a number of occasions referred to foreign law in its
decisions and the rationale behind considering it.
[30]
In
Makwanyane
,
Chaskalson P explained its use under the interim Constitution:
“
In
dealing with comparative law we must bear in mind that we are
required to construe the South African [interim] Constitution,
and
not an international instrument or the constitution of some foreign
country, and that this has to be done with due regard to
our legal
system, our history and circumstances, and the structure and language
of our own [interim] Constitution. We can
derive assistance
from public international law and foreign case law, but we are in no
way bound to follow it.”
[31]
(Footnote omitted.)
[30]
Although similar caution has been expressed
in relation to the final Constitution, that has not prevented this
Court from seeking
guidance from other legal systems. Particularly
apposite to this case, a matter involving the law of delict, are the
remarks
in
K
:
“
Counsel
. . . submitted that the conceptual nature of our law of delict,
based as it is on general principles of liability, is different
from
the casuistic character of the law of torts in common-law countries.
These differences, he submitted, render reliance
on such law
dangerous. Counsel is correct in drawing our attention to the
different conceptual bases of our law and other
legal systems.
As in all exercises in legal comparativism, it is important to be
astute not to equate legal institutions
which are not, in truth,
comparable. Yet in my view, the approach of other legal systems
remains of relevance to us.
It
would seem unduly parochial to consider that no guidance, whether
positive or negative, could be drawn from other legal systems’
grappling with issues similar to those with which we are confronted.
Consideration of the responses of other legal systems
may enlighten
us in analysing our own law, and assist us in developing it further.
. . . The question of whether we will
find assistance will
depend on whether the jurisprudence considered is of itself valuable
and persuasive. If it is, the Courts
and our law will benefit.
If it is not, the Courts will say so, and no harm will be done.”
[32]
(Footnote omitted.)
[31]
Foreign
law has been used by this Court both in the interpretation of
legislation
[33]
and in the
development of the common law.
[34]
Without attempting to be comprehensive, its use may be
summarised thus:
(a)
Foreign law is a useful aid in approaching constitutional problems in
South African jurisprudence. South African courts
may, but are
under no obligation to, have regard to it.
(b)
In having regard to foreign law, courts must be cognisant both of the
historical context out of which our Constitution was born
and our
present social, political and economic context.
(c)
The similarities and differences between the constitutional
dispensation in other jurisdictions and our Constitution must be
evaluated. Jurisprudence from countries not under a system of
constitutional supremacy and jurisdictions with very different
constitutions will not be as valuable as the jurisprudence of
countries founded on a system of constitutional supremacy and with
a
constitution similar to ours.
(d)
Any doctrines, precedents and arguments in the foreign jurisprudence
must be viewed through the prism of the Bill of Rights
and our
constitutional values.
[32]
The relevant question then is what role
foreign law can fulfil in considering this case. Where a case
potentially has both
moral and legal implications in line with the
importance and nature of those in this case, it would be prudent to
determine whether
similar legal questions have arisen in other
jurisdictions. In making this determination, it is necessary
for this Court
to consider the context in which these problems have
arisen and their similarities and differences to the South African
context.
Of importance is the reasoning used to justify the
conclusion reached in each of the foreign jurisdictions considered,
and whether
such reasoning is possible in light of the Constitution’s
normative framework and our social context.
[33]
It
is impracticable to attempt to provide a comprehensive overview of
foreign law in the body of this judgment.
[35]
What follows is necessarily selective.
[34]
A
number of countries recognise the claim of parents for damages
arising from negligently caused unwanted pregnancies. The
grounds for recognition vary. In some cases it is grounded in
the mother’s right of choice to have an abortion
[36]
or right to self-determination,
[37]
in others by the impact on the parents’ patrimonial
interests
[38]
and, in some
cases, the issue is regulated by legislation.
[39]
Where the claim has not been recognised, it appears that the
fact that abortions are not allowed may play a decisive role.
[40]
[35]
Recognition
of a child’s claim has been less forthcoming. A useful
example of a jurisdiction where this claim has been
recognised is the
Netherlands. The Dutch Hoge Raad (Supreme Court) reasoned that
a claim for damages exists, as one must
compare the cost of raising
the child now, given the fact that the child has been born as she is,
with the hypothetical situation
that would have ensued if no wrong
had been committed – that would be a situation in which these
costs would not have been
incurred.
[41]
[36]
The
Court also rejected the argument that allowing “wrongful life”
claims would permit claims by children born with
disabilities against
their mothers. The Court reasoned that abortion is a right of
the mother if requirements posed by law
are fulfilled and thus it
cannot be a right of the child on which a claim can be granted, as
there can be no duty to the child
to terminate the pregnancy.
[42]
The Court found, however, that a child still needs a claim in
addition to the parents’ “wrongful birth”
claim
because otherwise the child would become too dependent on the
parents.
[43]
The Court
also found that allowing a claim would help children with
disabilities to grow up as comfortably as possible because
their
unique needs can then be fulfilled.
[44]
[37]
Conversely,
the High Court of Australia has declined to recognise “wrongful
life” claims for almost opposite reasons.
The majority
judgment in
Harriton
reasoned that a “duty of care cannot be clearly stated in
circumstances where the appellant can never prove (and the trier
of
fact can never apprehend) the actual damage claimed, the essential
ingredient in the tort of negligence”.
[45]
Crennan J found that allowing a claim would or might lead to
the risk of a parent being sued for not having an abortion.
This
issue, however, was presented as a “further consideration”
and thus does not seem to have been of vital
importance.
[46]
[38]
In a lone dissent, Kirby J disagreed:
“
Denying
the existence of wrongful life actions erects an immunity around
health care providers whose negligence results in a child
who would
not otherwise have existed, being born into a life of suffering.
Here, that suffering is profound, substantial
and apparently
lifelong. The immunity would be accorded regardless of the
gravity of the acts and omissions of negligence
that could be proved.
The law should not approve a course which would afford such an
immunity and which would offer no legal
deterrent to professional
carelessness or even professional irresponsibility.”
[47]
(Footnote omitted.)
[39]
The
majority judgment of the Court in
Harriton
is based on the application of the paradox of comparing life with
non-life, in relation to a duty of care, establishing harm or
damage
and the computation of damages. The same reasoning is found in
the Court of Appeal’s decision in England in
McKay
,
[48]
where it was found that there are no damages as the “non-existence”
or “not-being” of a child cannot be
materialised in
monetary terms, so no true comparison of “non-existence”,
on the one hand, and life with certain disabilities,
on the other, is
possible.
[49]
[40]
In
Germany the Bundesgerichtshof (Federal Court of Justice) reasoned
that there is no direct duty to prevent the birth of a child
with a
foreseeable disability because human life might appear valueless if
one was to accept such a duty.
[50]
[41]
Is
there any conclusion to be drawn from this comparative survey other
than the rather melancholy one that similar kinds of arguments
are
made in different countries to arrive at different outcomes?
[51]
Yes, there is, and it is one that we should not be surprised to
arrive at, given the caution and approach to the use of foreign
law
that this Court has expressed in past judgments.
[42]
The
weight given to different arguments in a country is often, if not
invariably, determined by the constitutional, political and
social
context within which the law of that country is determined. For
convenience we may call it the “legal culture”
of each
country.
[52]
It is from
within the perspective of our own legal culture, where all law must
be grounded in constitutional values and where
considered respect
must be given to the fundamental rights set out in the Bill of
Rights, that we must assess the various arguments
for and against the
recognition of the child’s claim here. In this regard the
general normative framework of the Constitution
and the Bill of
Rights, the particular prominence given to the best interests of
children within that framework, and the openly
normative character of
our approach to the issue of wrongfulness in our law of delict, must
give guidance in the determination
of whether the claim should be
recognised.
[43]
Contextual factors that stand out in
whether a country recognises a claim for “wrongful life”
include the country’s
stance on abortion, the relative emphasis
(or lack thereof) that is placed on the rights of children in the
judgments on the issue
and the type of legal system in place.
[44]
As
a general trend, countries where abortion is prohibited or limited to
circumstances where it may save the life of the mother
do not
entertain “wrongful life” or “wrongful birth”
claims.
[53]
Countries
that significantly restrict a woman’s right to choose also do
not recognise the claims.
[54]
Conversely, the jurisdictions that recognise a claim for
“wrongful life” are among those that place the least
restrictions on a woman’s right to choose.
[55]
[45]
While
the judgments that do not find for a “wrongful life”
claim often do not emphasise the interests of children,
[56]
the judgments that place the greatest emphasis on the rights of
children tend to be the ones that find that such a claim exists.
[57]
For instance, the California Supreme Court placed great
emphasis on the best interests of the child in recognising a
“wrongful
life” claim:
“
Although
in deciding whether or not to bear such a child parents may properly,
and undoubtedly do, take into account their own interests,
parents
also presumptively consider the interests of their future child.
Thus, when a defendant negligently fails to diagnose
an
hereditary ailment, he harms the potential child as well as the
parents by depriving the parents of information which may be
necessary to determine whether it is in the child’s own
interests to be born with defects or not to be born at all.”
[58]
[46]
Our
Constitution explicitly protects the interests of children.
[59]
[47]
Finally,
the kind of legal reasoning allowed in the legal culture or tradition
of a country or legal system may also play a role
in determining
whether, or to what extent, a child’s claim will be
countenanced. Our Constitution requires all law,
including our
common law, to reflect, or be in accordance with, constitutional
values and rights. In Germany the Bundesverfassungsgericht
(Federal Constitutional Court) has developed the concept of
Drittwirkung
(third party effect), in terms of which constitutional norms have an
“irradiating effect” on other areas of the law,
[60]
and which has influenced our application of constitutional values and
rights to private law.
[61]
In
countries where this normative influence of constitutional values is
absent or less obvious, practical legal reasoning
based on precedent
and analogy may be the only method to develop the law to cope with
new circumstances. This may perhaps
be a more difficult and
laborious process.
[62]
Potential
viability of the child’s claim in our law
[48]
At this stage it is necessary to remind
ourselves that the purpose of this discussion is not to determine
finally whether the child
here has a claim, but to decide whether our
common law may possibly be developed to recognise it. I have
already stated that
the material on record is insufficient for us to
make that final determination, but the Centre’s argument, that
no amount
of further evidence will cure the impossibility of any
claim of this kind, necessitates this further enquiry.
[49]
That
our law, including our common law, must conform to the values of the
Constitution and that its development must promote the
“spirit,
purport and objects of the Bill of Rights” is the given
starting point for determining the viability of the
child’s
claim in the circumstances of this case. The particular
values
[63]
and rights that are
at the forefront are those of equality,
[64]
dignity
[65]
and the right of
children to have their best interests considered of paramount
importance in every matter concerning them.
[66]
[50]
It
is as well to clarify at this early stage that when I refer to the
right of a child the reference is, for the purpose of determining
the
contested issue here, to the child at the time of birth. This
was the approach adopted by the Supreme Court of Appeal
in
Mtati
,
[67]
a case dealing with the infliction of pre-natal injuries, where
Farlam JA held that “the right of a child to sue for pre-natal
injuries recognised in this judgment is expressly based on the
holding that the right of action only became complete when the child
was born alive”.
[68]
Although this is not a case of the infliction of a pre-natal
physical injury to the child, there is no reason to deviate
from this
approach. If the child was not born there would have been no
claim.
[51]
Our
pre-constitutional law of delict is not couched in terms of a duty to
protect fundamental rights.
[69]
It is clear, however, that many of the interests and rights
protected under the common law quite easily translate into what
we
now recognise as fundamental rights under the Constitution. In
Law
Society
,
[70]
this Court held that the abolition by the legislature of the common
law claim to sue a driver of a motor vehicle for negligent
injury
implicated the right enshrined in section 12(1)(c) of the
Constitution and had to pass muster under the limitations provision
of the Bill of Rights.
[52]
The existing common law as espoused by the
Supreme Court of Appeal in
Stewart
did not consider whether recognition of the child’s claim would
be in the best interests of the child or take into account
the
dictates of other rights in the Bill of Rights. It seems
possible that, given our Constitution, the child’s claim
may
not be inconceivable. At first blush it might seem that the
best interests of the child should be considered in the enquiry,
but
this direct engagement with the right of children to expect that
their best interests will be considered paramount in any matter
that
concerns them is said to fly in the face of the generally accepted
requirements of our law of delict. That contention
needs to be
examined carefully in relation to each of those requirements.
Harm
or loss
[53]
In
the recent case of
Country
Cloud
[71]
this Court stated:
“
Wrongfulness
is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm
demands the imposition
of liability or, conversely, whether ‘the social, economic and
other costs are just too high to justify
the use of the law of delict
for the resolution of the particular issue’. Wrongfulness
typically acts as a brake on
liability, particularly in areas of the
law of delict where it is undesirable or overly burdensome to impose
liability.
Previously,
it was contentious what the wrongfulness enquiry entailed, but this
is no longer the case. The growing coherence
in this area of
our law is due in large part to decisions of the Supreme Court of
Appeal over the last decade. Endorsing
these developments, this
Court in
Loureiro
recently articulated that the wrongfulness
enquiry focuses on—
‘
the
[harm-causing] conduct
and goes to
whether the policy and legal convictions of the community,
constitutionally understood, regard it as acceptable.
It is
based on the duty not to cause harm – indeed to respect rights
– and questions the reasonableness of imposing
liability.’
The
statement that
harm-causing
conduct
is wrongful expresses the conclusion that public or legal policy
considerations require that the conduct, if paired with fault,
is
actionable. And if conduct is not wrongful, the intention is to
convey the converse: ‘that public or legal policy
considerations determine that there should be no liability; that the
potential defendant should not be subjected to a claim for
damages’,
notwithstanding his or her fault.”
[72]
(Emphasis added and footnotes omitted.)
[54]
From this it is apparent that “harm-causing
conduct” is a prerequisite for the further enquiry into the
other elements
of delict, namely wrongfulness and fault. Without
harm-causing conduct there is no conduct which can be found to be
wrongful
or committed with the requisite degree of fault.
[55]
Harm-causing
conduct is normally assessed between two persons, the one causing the
harm and the other suffering the harm. Originally,
Aquilian
liability required that harm to lie only in physical injury to the
person or property of someone.
[73]
The initial problem for the child’s claim here –
and the paradox – is the absence of physical harm to his
person
or property.
[56]
There is also an absence of physical injury
to person or property in the case of the parents’ claim. But
that problem
has been overcome in their case by our law and also, as
we have seen, in other countries. How it was done in our law is
instructive.
[57]
In
Edouard
,
Van Heerden JA dealt with the objection, in relation to what he
termed a pregnancy claim,
[74]
that the birth of a child without disabilities cannot be treated as a
wrong against his parents:
“
In
my view the concise answer to it is that the ‘wrong’
consists not of the unwanted birth as such, but of the prior
breach
of contract (or delict) which led to the birth of the child and the
consequent financial loss. Put somewhat differently,
the
Bundesgerichtshof has succinctly said that, although an unwanted
birth cannot as such constitute a ‘legal loss’
(i.e. a
loss recognised by law), the burden of the parents’ obligation
to maintain the child is indeed a legal loss for which
damages may be
recovered.”
[75]
[58]
The
Supreme Court of Appeal explicitly endorsed this approach for
delictual claims in
Mukheiber
.
[76]
It went further and held that the claim in delict was not
limited to claims based on socio-economic reasons as the underlying
reason for potential choice to terminate the pregnancy:
“
In
the present case the Raaths did not wish to have any more children
for socio economic and other family reasons. These
are
socially acceptable reasons, and it does not lie in the mouth of Dr
Mukheiber to say that he is not liable because the Raath’s
reasons for not wanting a child were not legitimate or
contra
bonos mores
”.
[77]
[59]
The
significance of
Edouard
and
Mukheiber
for present purposes is that they recognised that the legal harm lay
not in the physical injury to the person or property of the
parents,
but in the additional financial burden that the parents had to carry
as a result of the birth of the child. This
recognition was
attained under the common law Aquilian action without any reliance on
constitutional values or rights. Today,
having regard to the
fundamental right of everyone to make decisions concerning
reproduction
[78]
and to
security in and control over one’s body,
[79]
the harm may simply be seen as an infringement of the right of the
parents to exercise a free and informed choice in relation to
these
interests.
[80]
But the
additional financial burden relied upon in
Edouard
and
Mukheiber
as the “legal loss” remains.
[60]
That the harm in the misdiagnosis was
initially directed at the mother or parents, and that its
consequences manifested in relation
to the child only upon birth,
might provide both a solution to the problem of “harm-causing
conduct” as a pre requisite
for delictual liability
towards the child, as well as an inherent limitation to the nature
and extent of that liability.
[61]
The harm to the parents, on the authority
of
Edouard
and
Mukheiber
,
manifested itself only when the children were born and the unwanted
financial burden to the parents became apparent, apart from
the loss
of personal choice that is now evident under the Constitution.
Similarly, the harm or loss, in the sense of the
burden to the
child, may exist and become apparent only if the parents are unable
to pursue their own claim. Children, unlike
parents, suffer no
constitutionally protected loss of personal choice. But the
Constitution explicitly requires that their
best interests are of
paramount importance in every matter concerning them.
[62]
When a medical expert negligently fails to
inform the mother that her child will be born with a congenital
disability, this deprives
the mother of the opportunity to make an
informed choice to terminate the pregnancy. If the child is
then born with a congenital
disability and the parents suffer
patrimonial loss in the form of an unwanted financial burden in
maintaining the child, our law
recognises that the mother or parents
have a claim in delict against the medical expert. Recognising
a child’s claim
asks us to take a step further. What is
the position if, for some reason, the mother or parents fail to make
that claim against
the negligent medical practitioner?
[63]
The
further step does not suddenly make the problem metaphysical.
[81]
It remains a practical legal issue. Who should bear the
harm or loss now, the child or the medical expert? Given
that
the Constitution stipulates that the best interests of the child are
of paramount importance and the fact that the medical
expert will not
be liable for anything more than he would have been liable to the
mother or parents, it is quite conceivable that
a court may, when all
the facts are known to it after a trial, conclude that the medical
expert should be liable to the child for
the same loss for which she
would have been liable to the parents.
[64]
In
South Africa, in addition to section 28(2) of the Constitution, the
common law principle that the High Court is the upper guardian
of
children obliges courts to act in the best interests of the child in
all matters involving the child. As upper guardian
of all
dependent and minor children, courts have a duty and authority to
establish what is in the best interests of children.
[82]
Notably, in
Mpofu
[83]
this Court endorsed the approach in
Kotze
v Kotze
:
[84]
“
[T]he
High Court sits as upper guardian in matters involving the best
interests of the child (be it in custody matters or otherwise),
and
it has extremely wide powers in establishing what such best interests
are. It is not bound by procedural strictures or
by the
limitations of the evidence presented, or contentions advanced or not
advanced, by respective parties.”
[85]
[65]
This
disposes of the prior objection that there cannot conceivably be
harm causing conduct in relation to the child’s
claim.
The misdiagnosis could arguably cause harm in the sense of a
burden on the child in circumstances where the parents,
who have
their own claim, are unable to pursue it against the medical expert.
That may have an impact on what is of paramount
importance in
determining the best interests of the child. Recognition of
this kind of harm may not sit comfortably with
existing notions of
harm in our law of delict. One way of dealing with this
difficulty may lie in viewing this burden on
the parents and the
child as a single one, in the sense that it is not cumulative. The
medical expert may then be obliged,
if wrongfulness and fault are
established in relation to the harm or loss, to pay damages for only
this harm or loss. If
the parents pursue the claim in their own
names it need only pay damages to them. If they do not, then it
may be liable to
the child for no more than it would have been liable
to the parents.
[86]
The
importance of this lies in distinguishing this kind of case from
instances of joint wrongdoers or contributory negligence.
There
is only one wrongdoer, the person who made the culpable misdiagnosis,
and the loss or harm lies in the burden imposed
on the parents and,
if they do not claim, then possibly on the child.
[66]
Even
if the conclusion is reached that the limits of our law of delict
will be stretched beyond recognition for harm of this kind
to be
recognised within its niche, our Constitution gives our courts the
liberty to develop motivated exceptions to common law
rules or even
recognise new remedies for infringement of rights.
[87]
For present purposes the point remains the same: the child’s
claim is not necessarily inconceivable under our law.
Wrongfulness
[67]
In
addition to the general normative framework of constitutional values
and fundamental rights, our law has developed an explicitly
normative
approach to determining the wrongfulness element in our law of
delict. It allows courts to question the reasonableness
of
imposing liability, even on an assumption that all the other elements
of delictual liability – harm, causative negligence
and damages
– have been met, on grounds rooted in the Constitution, policy
and legal convictions of the community.
[88]
As it was put by Khampepe J in
Country
Cloud
:
“
[T]he
element of wrongfulness provides the necessary check on liability in
these circumstances. It functions in this context
to curb
liability and, in doing so, to ensure that unmanageably wide or
indeterminate liability does not eventuate and that liability
is not
inappropriately allocated.”
[89]
[68]
For the purposes of determining, in general
terms, the possibility of a claim for damages by a child where a
pre-natal misdiagnosis
has been made regarding the potential
existence of a medical condition or congenital disability manifesting
after birth, it is
necessary to consider those particular policy and
legal factors that could be relevant to the wrongfulness enquiry that
are said
to make this kind of claim impossible. I have already
dealt with the impossible paradox argument, as well as with the
question
of the factual existence of harm or loss, and will say
nothing further about them.
[69]
Part
of the established wrongfulness enquiry is to determine whether there
has been a breach of a legal duty not to harm the claimant,
or
whether there has been a breach of the claimant’s rights or
interests.
[90]
Under the
Constitution children have the right to have their best interests be
given paramount importance in every matter
concerning them. That
includes a pre-natal medical expert misdiagnosis that results in the
child being born with a disability.
When parents do not claim
for the medical expenses in those circumstances, as they are entitled
to, the choice is to let
the loss lie with the child or to burden the
medical experts with the loss that they would have been legally
liable for to the
parents anyway. A conceivable option is that
the best interests of the child may require that the loss should not
in those
circumstances lie with the child. Translated into
legal terms, that would mean that there may be a legal duty not to
cause
that loss. Failure to do so might breach that duty and
infringe the child’s right under section 28(2) of the
Constitution.
[70]
A further general objection is that of the
possibility of indeterminate liability. That is a bogey often
raised when the law
needs to cater for new circumstances and one that
almost always fails to materialise in the wake of innovation. The
answer
here may be that the liability is determinate: either the
parents or the child may claim, not both, or cumulatively.
[71]
May this open the floodgates for persons
with disabilities to sue their parents? Not on the basis of the
limited liability
that is at issue here. It would be a claim
against a single other wrongdoer by either the parents or, if they
fail to exercise
it, by the child. Recognition of the child’s
claim against the single wrongdoer may not be dependent on any kind
of
wrongdoing against the child by the parents. In addition,
the claim is predicated on the assumption – which needs to
be
proved in due course at the trial – that the mother would have
chosen an abortion had she been given the proper diagnosis
of
potential disability before birth. For a separate claim against
the parents or mother, the child would have to show that
it was
wrongful and negligent for the mother not to have an abortion while
being aware of the disability before giving birth. This
might
prove difficult having regard to the parents’ (particularly the
mother’s) right to a free and informed choice
in relation to
reproduction.
[72]
Lastly, for present purposes, is the
argument that recognition of the child’s claim would somehow
infringe upon his dignity
because recognising a claim for damages
would imply that life with a disability is worth less than life
without one. This
is not necessarily the case. Allowing
this claim might be conceived of as simply helping a child to cope
with a condition
of life she was born with and making it possible for
that child to live as comfortably as possible in the circumstances.
It
might be argued that this is no different from allowing
claims for damages where physical injury has caused subsequent
disability,
an everyday occurrence in our courts.
[73]
There is no general or absolute ground for
concluding that, in accordance with our law’s test for
wrongfulness, it would be
so unreasonable to impose liability in
respect of the child in the circumstances outlined here as to make
that possibility inconceivable.
Causation
[74]
The
pre-natal misdiagnosis of a medical condition or congenital
disability is not the cause of the condition or disability itself.
But if the mother would have chosen to undergo an abortion had
she been aware of the correct diagnosis, then birth would
not have
ensued. But for the wrong diagnosis, the birth would not have
occurred. Factual causation, in the sense of
the misdiagnosis
being part of the chain of events that led to the birth, may then be
established.
[91]
Policy
considerations may then still prevent establishing legal causation,
but that is also an issue that can only properly
be determined when
all the facts are established at a trial.
Negligence
[75]
Negligence will still have to be proved in
accordance with general principles. Recognition of a child’s
claim does not
have any impact on the normal application of those
principles to the facts of each case.
Damages
[76]
Our
law already recognises the parents’ claim for the recovery of
patrimonial damages in the form of actual and anticipated
expenses
for the maintenance of the child.
[92]
As indicated in this judgment, the child’s claim may in
that regard be co extensive with that of the parents.
There
may, however, be reasons why what is good for the parents may not
also be good for the child.
[77]
For
the limited purposes of this judgment, namely determining only the
bare bones or parameters of a child’s potential claim,
it is
not necessary to go further and determine whether the child may have
a claim that goes beyond patrimonial damages in the
form of actual
expenses. Compensation for intangible loss does not fall within
the general principles of Aquilian liability.
A claim for pain
and suffering and loss of amenities of life is recognised in our law
as a claim of a special kind (
actio
sui generis
)
and a requirement of this action is the infliction of a bodily injury
on the claimant.
[93]
It
is not necessary to determine whether our common law is in need of
further development to allow a child also to claim
compensation for
that kind of intangible loss. Nor is it necessary for us to
determine the extent or limit of actual patrimonial
expenses that may
be sought in a child’s claim. All that should be left, if
needed, for determination by the High Court.
Conclusion
and remedy
[78]
The
particulars of claim and the exception based on it do not traverse an
essential part of determining whether a child’s
claim may
exist, namely the constitutional injunction that a child’s best
interests are of paramount importance in any matter
concerning the
child. Determining that involves both factual and legal
considerations, matters not capable of being decided
appropriately on
exception.
[94]
This was
not the proper procedure to determine the important factual, legal
and policy issues that may have a decisive bearing
on whether the
common law should be developed to allow the child’s claim to be
accommodated on the particular circumstances
of this case.
[79]
In
upholding the exception, the High Court also ordered the dismissal of
the claim. This was unwarranted. The upholding
of an
exception does not inevitably carry with it the dismissal of the
action.
[95]
Leave to
amend the particulars of claim should have been granted.
[80]
That might have been a sufficient but
limited ground for upholding the appeal and allowing an amendment of
the particulars of claim.
But in the end the case is being
determined on wider grounds, namely that a child may have a claim for
patrimonial damages
against a medical expert in circumstances where a
pre-natal misdiagnosis of a medical condition or congenital
disability deprived
the child’s mother of the informed choice
to abort and in the event that the child’s parents do not
exercise their
own claim for those patrimonial damages. The
narrow point of the exception has, as it were, been rendered
irrelevant. Our
order will reflect this.
[81]
It must be emphasised that all this
judgment determines is that a child’s claim may potentially be
found to exist. Whether
it does so exist and in what form,
needs to be decided by the High Court. The High Court must
still determine, if the claim
is properly reformulated in delict,
whether harm, wrongfulness, negligence, causation and damages have
been established. All
this judgment lays down is that this must
be done within our constitutional imperative that the decision must
accord with constitutional
rights and values, which must include
considering the best interests of the child. This also applies
to any other manner
in which the claim may be reformulated.
Costs
[82]
The applicant has been substantially
successful in the appeal and that success should carry the costs on
appeal. I do not,
however, consider that the applicant should
be awarded the costs in the High Court. The exception is partly
explained and
justified by the manner in which the child’s
claim was formulated and the existing state of the law at the time.
Each
party should bear its own costs in the High Court, a
result that will be achieved by making no order as to costs in the
High Court.
Order
[83]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal succeeds with costs, including the costs of two counsel.
3.
The order of the High Court is set aside and replaced with:
“
The
plaintiff is granted leave to amend the particulars of claim within
14 days.”
Table A
Country
“
Wrongful
life” claim recognised?
Relevant
constitutional provisions
Australia
No
The
Australian Constitution has no bill of rights.
Austria
Yes
Article 7(1):
“No one shall be discriminated against because of his
disability. The Republic . . . commits itself
to ensuring
the equal treatment of disabled and non-disabled persons in all
spheres of everyday life.”*
Belgium
No
Article 22
determines that everyone has the right to respect for his or her
private life and for his or her family life.
Article 22
bis
stipulates that every child has the right to respect for his or
her “moral, physical, mental and sexual integrity.”*
Article 23 protects the right to lead a life in conformity
with human dignity.
Canada
No
The Canadian
Charter of Rights and Freedoms part I section 7: “Everyone
has the right to life, liberty and security
of the person and the
right not to be deprived thereof except in accordance with the
principles of fundamental justice.”
Czech
Republic
Undecided
The preamble
states: “We, the citizens of the Czech Republic . . . [are]
resolute to build, protect and develop the
Czech Republic in the
spirit of the inalienable values of human dignity”.*
Chile
No
Article 1:
“Persons are born free and equal in dignity and rights.
The family is the basic core of society.
. . . It is
the duty of the State to safeguard national security, to provide
protection to the people and the family,
to promote the
strengthening of this”. Article 19: “The
Constitution guarantees to all persons . . .
[t]he right to life
and to the physical and psychological integrity of the person . .
. [and] [t]he law protects the life
of those about to be born.”*
Croatia
No
Article 21:
“Each human being has the right to life.” Article
35: “Respect for and legal protection
of each person’s
private and family life, dignity, reputation shall be
guaranteed.” Article 63: “The
state shall
protect maternity, children and youth, and shall create social,
cultural, educational, material and other conditions
promoting
the achievement of the right to a suitable life.” Article
64: “Parents shall bear responsibility
for the upbringing,
welfare and education of their children, and they shall have the
right and freedom to make independent
decisions concerning the
upbringing of their children. Parents shall be responsible
for ensuring the right of their
children to the full and
harmonious development of their personalities. Physically
and mentally disabled and socially
neglected children shall be
entitled to special care, education and welfare. Children
shall be obliged to take care
of their elderly and infirm
parents.” Article 65: “Everyone shall have the
duty to protect children and
infirm persons.” Article
70: “Everyone shall have the right to a healthy life.”*
England
No
England has
no single constitutional document. English constitutional
law is instead within statutes, court judgments,
works of
authority and treaties. Section 1(2) of the Congenital
Disabilities (Civil Liability) Act 1976 denies children
born
after its passing a cause of action in “wrongful life”.
The Law Commission’s comment is as
follows: “Such
a cause of action, if it existed, would place an almost
intolerable burden on medical advisers in
their socially and
morally exacting role. The danger that doctors would be
under subconscious pressures to advise
abortions in doubtful
cases through fear of an action of damages, is, we think, a real
one.” See Law Commission
Report on Injuries to Unborn
Children, No 60, Cmnd 5709 (1974) at para 89. See also paras
46-7.
Estonia
Undecided
Article 10:
“The rights, freedoms and duties set out in this chapter do
not preclude other rights, freedoms and duties
which arise from
the spirit of the Constitution or are in accordance therewith,
and which are in conformity with the principles
of human dignity,
social justice and democratic government founded on the rule of
law.” Article 16: “Everyone
has the right to
life. The right to life is protected by the law. No
one may be arbitrarily deprived of his
or her life.”*
France
No
For social
rights, the current Constitution refers to the preamble to the
1789 Declaration of the Rights of Man and the
Citizen and the
preamble to the 1946 Constitution.
Germany
No
Article 1(1):
“Human dignity shall be inviolable. To respect and
protect it shall be the duty of all state authority.”
Article 2(2): “Every person shall have the right to
life and physical integrity.” Article 6(2):
“The
care and upbringing of children is the natural right of parents
and a duty primarily incumbent upon them. The
state shall
watch over them in the performance of this duty.” Article
6(4): “Every mother shall be entitled
to the protection and
care of the community.”*
Greece
No
Article 2(1):
“Respect and protection of the value of the human being
constitute the primary obligations of the State.”
Article
5(5): “All persons have the right to the protection of
their health and of their genetic identity.
Matters
relating to the protection of every person against biomedical
interventions shall be specified by law.”
Article 21:
“Families with many children, disabled war and peace-time
veterans, war victims, widows and orphans,
as well as persons
suffering from incurable bodily or mental ailments are entitled
to the special care of the State. .
. . The State shall
care for the health of citizens and shall adopt special measures
for the protection of youth,
old age, disability and for the
relief of the needy.” Article 21(6): “People
with disabilities have the
right to benefit from measures
ensuring their self sufficiency, professional integration
and participation in the
social, economic and political life of
the Country.”*
Hungary
No
Article II:
“Human dignity shall be inviolable. Everyone shall
have the right to life and human dignity; the
life of the foetus
shall be protected from the moment of conception.” Article
III: “It shall be prohibited
to perform medical or
scientific experiment on human beings without their informed and
voluntary consent. . . . Practices
aimed at eugenics, the
use of the human body or its parts for financial gain, as well as
human cloning shall be prohibited.”
Article VI(1):
“Everyone shall have the right to have his or her private
and family life, home, communications
and good reputation
respected.” Article XV(5): “By means of
separate measures, Hungary shall protect
families, children,
women, the elderly and persons living with disabilities.”
Article XVI(1): “Every
child shall have the right to
the protection and care necessary for his or her proper physical,
mental and moral development.”*
Ireland
No
Article
40(3)(3): “The State acknowledges the right to life of the
unborn and, with due regard to the equal right
to life of the
mother, guarantees in its laws to respect, and, as far as
practicable, by its laws to defend and vindicate
that right.”
Israel
No
Israel’s
Basic Law: Human Dignity and Liberty declares fundamental human
and civil rights, which are based on human
value, sanctity of
life and freedom.
Italy
Yes
Article 30:
“It is the duty and right of parents to support, raise and
educate their children, even if born out of
wedlock. In
case of incapacity of the parents, the law shall provide for the
fulfilment of their duties. The
law shall ensure to
children born out of wedlock every form of legal and social
protection, that is compatible with the
rights of the members of
the legitimate family. The law shall lay down the rules and
limitations for the determination
of paternity.”
Article 32: “The Republic shall safeguard health
as a fundamental right of the individual
and as a collective
interest and shall guarantee free medical care to the indigent.
No one may be forcefully submitted
to medical treatment
unless provided for by law. In no case may the law violate
the limits imposed by respect for
the human being.”*
Netherlands
Yes
Article 11
provides for a right of the inviolability of the body. This
right is a subspecies of the general right
to personal integrity
in Article 10. Article 11 protects against violations like
forced medical experiments, corporal
punishment, torture and
mutilation. It does not end with death and thus demands a
legal basis for organ donation.
Poland
No
Article 30:
“The inherent and inalienable dignity of the person shall
constitute a source of freedoms and rights of
persons and
citizens. It shall be inviolable.” Article 38:
“The Republic of Poland shall ensure
the legal protection
of the life of every human being.” Article 47:
“Everyone shall have the right to
legal protection of his
private and family life, of his honour and good reputation and to
make decisions about his personal
life.” Article 68:
“Everyone shall have the right to have his health
protected. . . . Public authorities
shall ensure special
health care to children, pregnant women, handicapped people and
persons of advanced age.” Article
69: “Public
authorities shall provide, in accordance with statute, aid to
disabled persons to ensure their subsistence,
adaptation to work
and social communication.”*
Portugal
No
Article 1:
“Portugal shall be a sovereign Republic, based on the
dignity of the human person and the will of the people
and
committed to building a free, just and solidary society.”
Article 24(1): “Human life shall be inviolable”.
Article 64: “Everyone shall possess the right to
health protection and the duty to defend and promote health.
. .
. The right to health protection shall be fulfilled . . .
[b]y creating economic, social, cultural and environmental
conditions that particularly guarantee the protection of
childhood, youth and old age”. Article 67(2): “In
order to protect the family, the state shall particularly be
charged with . . . respect for individual freedom, guaranteeing
the right to family planning by promoting the information and
access to the methods and means required therefore, and
organising such legal and technical arrangements as are needed
for motherhood and fatherhood to be consciously planned .
. .
[and] [r]egulating assisted procreation in such a way as to
safeguard the dignity of the human person”. Article 69(1):
“With a view to their integral development, children shall
possess the right to protection by society and the state,
especially from all forms of abandonment, discrimination and
oppression and from the abusive exercise of authority in the
family or any other institution.” Article 71:
“Citizens with physical or mental disabilities shall fully
enjoy the rights and shall be subject to the duties enshrined in
this Constitution, save for the exercise or fulfilment
of those
for which their condition renders them unfit. . . . The
state shall undertake a national policy for the
prevention of
disability and the treatment, rehabilitation and integration of
disabled citizens and the provision of support
to their families,
shall educate society and make it aware of the duties of respect
and solidarity towards such citizens,
and shall ensure that they
effectively enjoy their rights, without prejudice to the rights
and duties of their parents
or guardians.”*
Singapore
No
Article 9(1):
“No person shall be deprived of his life or personal
liberty save in accordance with law.”*
South Korea
No
Article 10:
“All citizens shall be assured of human dignity and worth
and have the right to pursue happiness. It
is the duty of
the State to confirm and guarantee the fundamental and inviolable
human rights of individuals.” Article
17: “All
citizens shall enjoy inviolable right to privacy of life.”
Article 34: “All citizens shall
be entitled to a life
worthy of human beings. . . . Citizens who are incapable of
earning a livelihood due to a physical
disability, disease, old
age or other reasons shall be protected by the State under the
conditions as prescribed by Act.”
Article 36: “The
State shall endeavor to protect mothers. . . . The health
of all citizens shall be protected
by the State.”*
Switzerland
No
Article 7:
“Human dignity must be respected and protected.”
Article 8(4): “The law shall provide
for the
elimination of inequalities that affect persons with
disabilities.” Article 10(1): “Every person
has
the right to life.” Article 11: “Children and
young people have the right to the special protection
of their
integrity and to the encouragement of their development. . . .
They may personally exercise their rights
to the extent that
their power of judgment allows.” Article 12:
“Persons in need and unable to provide
for themselves have
the right to assistance and care, and to the financial means
required for a decent standard of living.”
Article
119: “Human beings shall be protected against the misuse of
reproductive medicine and gene technology.
. . . The
Confederation shall legislate on the use of human reproductive
and genetic material. In doing so,
it shall ensure the
protection of human dignity, privacy and the family and shall
adhere in particular to the following
principles: . . . the
procedure for medically-assisted reproduction may be used only if
the infertility or the risk of
transmitting a serious illness
cannot otherwise be overcome, but not in order to conceive a
child with specific characteristics
or to further research. . . .
[T]he genetic material of a person may be analysed,
registered or made public only
with the consent of the person
concerned or if the law so provides.” Article 120(1):
“Human beings and
their environment shall be protected
against the misuse of gene technology.”*
United States
Yes, but only
in California, Maine, New Jersey and Washington
The
Fourteenth Amendment of the United States Constitution contains
the Due Process Clause, which prohibits the states from
“depriv[ing] any person of life, liberty, or property,
without due process of law”.
*Non-authoritative
translations
Table B
Country
“
Wrongful
birth” claim recognised?
Rationale in
“wrongful birth” cases
“
Wrongful
life” claim recognised?
Rationale in
“wrongful life” cases
Australia
Yes
Parents are
limited in the amounts they may claim for “wrongful birth”.
Parents may only claim for recovery
of additional costs
associated with rearing or maintaining a child with a disability
that arise by reason of the disability.
See, for example,
the Civil Liability Act 2002 (NSW), sections 70-1.
No
The
Australian High Court reasoned that, “[a] duty of care
cannot be clearly stated in circumstances where the appellant
can
never prove (and the trier of fact can never apprehend) the
actual damage claimed, the essential ingredient in the
tort of
negligence.”
Harriton
above n 16 at para 277.
Crennan J, for the majority, found that allowing a claim
would or might lead to the risk of
a parent being sued for not
having an abortion. This issue is, however, presented as a
“further consideration”
and thus does not seem to
have been of vital importance. Id at para 250.
Czech
Republic
Yes
The Regional
Court in Brno (judgment file No 24 Co 66/2001) recognised the
action and ordered a hospital to pay damages
for the
non-pecuniary loss to a mother who gave birth to a healthy child
despite her wish to have an abortion. Stressing
the right
of a mother to decide about her unborn child, the High Court in
Olomouc upheld the Regional Court decision in
its decision No 1
Co 192/2008.
Undecided
According to
the Venice Commission response, no court has ever adjudicated
such a claim.
Chile
No
See “wrongful
life” rationale.
No
In Chilean
legislation a “wrongful life” claim is not admissible
since abortions, in all cases, are forbidden
by law.
England
Yes
In upholding
a “wrongful birth” claim, the Court of Appeal found
that maintenance costs were offset by the claimants’
savings of the costs of maintaining other children that they had
decided, in consequence of their disabled child’s
birth,
not to have. According to Mann LJ, reaching the same
conclusion as the majority, the defendants’ negligence
was
not causative of the maintenance costs. Had the defendants
not been negligent, the pregnancy would have been
terminated and
the mother would have tried to get pregnant again and would have
probably succeeded.
Salih v Enfield Health Authority
[1991] 3 All ER 400.
No
The Court
reasoned that there are no damages as the “non-existence”
or “not-being” of a child cannot
be materialised in
monetary terms, so no true comparison of “non-existence”,
on the one hand, and life with
certain disabilities, on the
other, is possible.
McKay
above n 48.
Estonia
Undecided
It is
debatable and highly uncertain that the Law of Obligations Act
recognises “wrongful birth” claims.
According
to article 127(2), damage shall not be compensated for to the
extent that prevention of damage was not the purpose
of the
obligation or provision due to the non-performance of which the
compensation obligation arose. One could argue
that the aim
of a contract for the provision of health-care services, is,
first and foremost, the monitoring and securing
of the health of
the mother and, second, the health of the embryo or baby, not the
possible genetic deficiencies of an
unborn child.
Undecided
The Estonian
Law of Obligations Act does not recognise any ground for claiming
damages for “wrongful life”.
See chapter 53
(“Unlawful causing of damage”), in particular, for
example, article 1045 (“Unlawfulness
of causing of
damage”). The Act does not see a life with disability
as either unlawful damage or damage caused
in the frames of a
contract for provision of health care services.
Germany
Yes
In Germany,
the general view is that in a pregnancy action, the cost of
maintenance of an unwanted child may be recovered,
regardless of
whether the child is healthy or not.
No
The
Bundesgerichtshof
(Federal Court of Justice)
reasoned that there is no direct
duty to prevent the birth of a child with a foreseeable
disability because human life might
appear valueless if one was
to accept such a duty. See BGHZ 86, 240 above n 38.
Netherlands
Yes
The Dutch
Hoge Raad (Supreme Court) reasoned that the right of the mother
to decide to end her pregnancy is derived from
her right to
self determination. When the mother is prevented from
effectuating the right to decide to end her
pregnancy of a child
with a severe disability as the result of an omission of an
obstetrician, this is an infringement
of the right to
self-determination. Such a severe infringement of a
fundamental right is considered a violation of
the person giving
rise to compensation of non pecuniary loss. The same
holds true for the father. Further,
the omission is a
breach of contract in relation to the mother and it is also
unlawful towards the father because of his
involvement in the
family. The fact that this omission caused the loss
indirectly does not mean that the loss cannot
be attributed to
the obstetrician as a consequence of his fault. See
Kelly
above n 37.
Yes
The Dutch
Hoge Raad (Supreme Court) reasoned there is loss as one can and
must compare the cost of raising the child now,
given that the
child has been born as is, with the hypothetical situation that
would have ensued if no wrong had been committed.
That
would be a situation in which these costs would not have been
caused.
Kelly
above n 37 at para 4.15. The
Court rejected the argument that allowing “wrongful life”
claims permits
claims by children with disabilities against their
mothers. The Court reasoned that abortion is a right for
the mother
if requirements posed by law are fulfilled and thus it
cannot be a right for the child on which a claim can be granted
as there can be no duty to the child to abort. Id at
para 4.13. The Court found that a child needs a claim
in addition to the parents’ “wrongful birth”
claim because otherwise the child would become too dependent
on
the parents. Id at para 4.20. The Court also
found that allowing a claim would help these children
with
disabilities to grow up as comfortably as possible. Id at
para 4.15.
United States
Yes
(majority)
The first
case that held a “wrongful birth” action was a
well-founded claim was
Theimer
above n 36 in Texas. Since
that decision, numerous “wrongful birth” claims have
been allowed in the United
States. The Due Process Clause
of the United States Constitution has been interpreted to include
a substantive component,
from which certain fundamental,
individual rights may be recognised. These include the
right to privacy, on which
the decisions in
Roe v Wade
[1973] USSC 43
;
410
US 113
(1973) (
Roe
) and
Planned Parenthood v Casey
[1992] USSC 112
;
505
US 833
(1992) are predicated. Those decisions recognise a
woman’s right to terminate a pregnancy within a certain
time period. No state had recognised a “wrongful
birth” claim before
Roe
.
Yes, but only
in California, Maine, New Jersey and Washington
California,
New Jersey and Washington courts have recognised “wrongful
life” claims based upon public policy
grounds.
Turpin
above n 57;
Procanik v Cillo
97 NJ 339;
478 A2d 755
(NJ 1984) (
Procanik
); and
Harbeson
above n 57.
Maine has provided for “wrongful life” claims through
legislation. Section 2931 of the
Maine Health Security Act,
Title 24 of 2013. New Jersey, although it initially refused
to recognise a claim for “wrongful
life”, eventually
recognised this claim (in certain circumstances) in
Procanik
,
in part based on a woman’s right to choose as recognised in
Roe.
Likewise, the first California case to
recognise a “wrongful life” claim was based in part
upon
Roe
.
Curlender v Bio Science
Laboratories
106 Cal App 3d 811
(Cal Ct App 1980).
For
the Applicant:
R
P Hoffman SC and N C Lawrenson
instructed
by A Batchelor & Associates.
For
the Respondent:
S
Burger SC and G van der Spuy
instructed
by Bowman Gilfillan Inc.
[1]
Section
12(2)(a) of the Constitution and the Choice on Termination of
Pregnancy Act 92 of 1996. The Act prescribes the conditions
under which the choice may be made.
[2]
Mukheiber
v Raath and Another
[1999] ZASCA 39
;
1999 (3) SA 1065
(SCA) (
Mukheiber
);
Administrator,
Natal v Edouard
[1990]
ZASCA 60
;
1990 (3) SA 581
(A) (
Edouard
);
and
Friedman
v Glicksman
1996
(1) SA 1134
(W) (
Friedman
).
Edouard
was decided in contract, but the reasoning in the judgment also
considered the delictual dimensions of a claim.
[3]
Stewart
and Another v Botha and Another
[2008]
ZASCA 84
;
2008 (6) SA 310
(SCA) (
Stewart
)
and
Friedman
id.
[4]
Emphasis
added.
[5]
Above
n 3. This matter was also decided on exception.
[6]
Id
at para 28.
[7]
Id
at para 10.
[8]
Id
at para 11.
[9]
Id
at para 28.
[10]
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
[2005]
ZASCA 73
;
2006 (1) SA 461
(SCA) (
Telematrix
)
at para 3.
[11]
Trustees
for the Time Being of the Children’s Resource Centre Trust and
Others v Pioneer Food (Pty) Ltd and Others
[2012]
ZASCA 182
;
2013 (2) SA 213
(SCA) at para 36.
[12]
See
generally
Mankayi
v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC);
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[2006] ZACC 16
;
2007 (3) SA 121
(CC); 2007 (3) BCLR 300 (CC);
S
v Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC);
Dudley v
City of Cape Town and Another
[2004] ZACC 4
;
2005 (5) SA 429
(CC);
2004 (8) BCLR 805
(CC);
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) (
Fose
);
and
Du
Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC)
(
Du Plessis
).
[13]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (1) BCLR 995
(CC)
(
Carmichele
).
[14]
Relying
on
Minister
of Law and Order v Kadir
[1994]
ZASCA 138; 1995 (1) SA 303 (A).
[15]
Carmichele
above n 13 at para 80.
[16]
This
is recognised elsewhere too. In the Australian case of
Harriton
v Stephens
[2006] HCA 15
;
(2006) 226 CLR 52
;
(2006) 226 ALR 391
(
Harriton
),
Kirby J in dissent noted at para 35:
“
Especially
in novel claims asserting new legal obligations, the applicable
common law tends to grow out of a full understanding
of the facts.
To decide the present appeal on abbreviated agreed facts risks
inflicting an injustice on the appellant because
the colour and
content of the obligations relied on may not be proved with
sufficient force because of the brevity of the factual
premises upon
which the claim must be built. Where the law is grappling with
a new problem, or is in a state of transition,
the facts will often
‘help to throw light on the existence of a legal cause of
action – specifically a duty of care
owed by the defendant to
the plaintiff’. Facts may present wrongs. Wrongs
often cry out for a remedy.
To their cry the common law may
not be indifferent.” (Footnotes omitted.)
[17]
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC) (
K
).
[18]
S
v Thebus and Another
[2003]
ZACC
12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) (
Thebus
).
[19]
K
above n 17 at paras 16-7.
[20]
Id
at para 16.
[21]
Carmichele
above n 13 at para 80.
[22]
Above
n 17 at para 23.
[23]
Compare,
for example,
Edouard
above n 2 at 585J-586A and the remarks of Kirby J in
Harriton
above n 16 at paras 8-14.
[24]
See
Stewart
above n 3 at para 28.
[25]
See
K
above
n 17 at paras 16-7 and 22-3. See also
Phumelela
Gaming and Leisure Ltd v Gründlingh and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8) BCLR 883
(CC) at paras
26-7;
Thebus
above
n 18 at para 27; and
Carmichele
above n 13 at paras 54-6.
[26]
Carmichele
id
at
para 80.
[27]
Above
n 3. See also the High Court judgment in that case, reported
as
2007 (6) SA 247
(C), and
Friedman
above
n 2.
[28]
Section
39(1)(c).
[29]
Section
39(1)(b) of the Constitution provides that “[w]hen
interpreting the Bill of Rights, a court, tribunal or forum .
. .
must consider international law”.
[30]
See,
for example,
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC);
S
v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC); and
S
v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) (
Makwanyane
).
In Ackermann “Constitutional Comparativism in South Africa: A
Response to Sir Basil Markesinis and Jörg Fedtke”
(2006)
80
Tulane
Law Review
169 at 187-90 a former justice of this Court, Laurie Ackermann, sets
out 26 instances where foreign law has been helpful to this
Court.
[31]
Makwanyane
id at para 39.
[32]
Above
n 17 at paras 34-5.
[33]
See,
for example,
Justice
Alliance of South Africa v President of the Republic of South Africa
and Others
[2011] ZACC 23
;
2011 (5) SA 388
(CC);
2011 (10) BCLR 1017
(CC) at
paras 72-3;
Union
of Refugee Women and Others v Director: Private Security Industry
Regulatory Authority and Others
[2006]
ZACC 23
;
2007 (4) SA 395
(CC);
2007 (4) BCLR 339
(CC) at para 45-6;
and
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paras 72-8.
[34]
K
above
n 17 at paras 34-5.
[35]
The
methodology used in obtaining information includes an enquiry
directed to the members of the Venice Commission. The
Venice
Commission (formally known as the European Commission for Democracy
through Law) is an organisation of 68 member states
–
including those considered observers, associate members and of a
special status (such as South Africa) – and acts
as the
Council of Europe’s advisory body on constitutional matters.
It is composed of constitutional and international
law experts,
Supreme or Constitutional Court judges and members of national
parliaments. Member states may submit constitutional
law
enquiries to the Venice Commission in order to solicit responses
from other member states. The responding member states
then
set out the position in the law of that country.
This
Court received responses from Austria, Chile, Croatia, Czech
Republic, Estonia, Germany, Ireland, Netherlands, Norway, Poland,
Sweden and Switzerland. Also helpful were numerous articles,
especially Giesen “The Use and Influence of Comparative
Law in
‘Wrongful Life’ Cases”
(2012) 8
Utrecht Law
Review
35.
The results of this exercise are tabulated in
Table A, dealing with the constitutional provisions of the countries
and
whether a “wrongful life” claim is recognised.
Table B summarises the rationale for the recognition or otherwise
of
both “wrongful birth” and “wrongful life”
cases in selected countries. Both tables can be found
at the
end of this judgment.
[36]
In
the state of Texas in the United States, for example:
Jacobs
v Theimer
519 S W 2d 846 (Tex 1975) (
Theimer
)
at 848.
[37]
In
the Netherlands: HR 18 March 2005
,
Nederlandse Jurisprudentie
2006,
606 (
Kelly
).
[38]
In
Germany: (1983) BGHZ 86, 240. See also
Edouard
above n 2 at 587G-588A and 590F.
[39]
For
example, in Australia, France and the state of Maine in the United
States.
[40]
For
example, in Chile and Ireland.
[41]
Kelly
above n 37.
[42]
Id at para 4.13.
[43]
Id at para 4.20.
[44]
Id at para 4.15.
[45]
Harriton
above
n 16 at para 276.
[46]
Id at para 250.
[47]
Id at para 153.
[48]
McKay
and Another v Essex Area Health Authority and Another
[1982]
QB 1166
(CA) (
McKay
).
[49]
Id
at 1181 and 1189.
[50]
See
BGHZ 86, 240 (Lipstein translation) above n 38:
“
A
direct duty, enforceable by an action in tort, to prevent the birth
of a child on the ground that in all probability it will
be affected
by an infirmity which makes its life appear ‘valueless’
in the eyes of society or in its own presumed
opinion (for which
naturally no evidence can be produced) would be alien to the duties
sanctioned by the law of tort which are
normally centred on the
protection of personal integrity.”
[51]
Compare
Giesen above n 35 at 54:
“
What
can be concluded from all this? Arguments and insights drawn
from comparative law are being used in a wide variety
of legal
systems, in one way or another, but since the arguments are
basically the same everywhere while the solutions are not,
it is
obvious that these insights are of influence but not decisive in the
end.”
[52]
See
Klare “Legal Culture and Transformative Constitutionalism”
(1998) 14
SAJHR
146. See also Giesen id at 53:
“
This
outcome would suggest that comparative law is – and this would
indeed be my view, at least in relation to wrongful
life claims –
in most cases (or better: legal systems) not able to provide the
answer to the question of which arguments
are valid and (most)
convincing, and thus comparative law is neither able to answer, once
and for all and for people everywhere,
the question whether wrongful
life claims should be allowed or not. That, of course, is not
a surprising conclusion.
It has to do with the fact that
although the arguments for and against all possible solutions are as
such the same everywhere,
it is the legal culture in a certain place
and at a certain time that determines in the end how a legal system
interprets, weighs,
rates and values those arguments and thus
decides the debate on the topic at hand . . . .
My
basic and simple point is thus that legal culture – or more
neutral maybe – the legal politics within a (tort)
law system
decides how the answer to the moral questions involved will sound.
Comparative law can provide the basic arguments
for and against
certain solutions (and thus the basis for justifying the solution
reached) and it is extremely useful at that,
but it can do no more.
The final decision is always one of a ‘political’
nature.”
[53]
For
example, in
Chile
abortion is prohibited in all instances and in Ireland abortion is
only allowed to save the life of the mother. The
courts in
both of these countries have never recognised either a “wrongful
birth” or “wrongful life”
claim.
[54]
In
2012, the European Court of Human Rights found for the third time
that Poland had violated its obligation to ensure effective
access
to abortion services because the country lacked a comprehensive
legal framework for implementing its abortion law.
P
and S v Poland
,
no 57375/08, ECHR 2008. See also
RR
v Poland,
no 27617/04, ECHR 2011 at para 267 and
Tysiac
v Poland,
no 5410/03, ECHR 2007-I. Poland does not recognise a claim for
“wrongful life”.
[55]
The
jurisdictions that currently recognise “wrongful life”
claims, i.e. Austria, Italy, Netherlands and the states
of
California, Maine, New Jersey and Washington in the United States,
all permit abortion without restriction as to reason, for
at least a
certain period of time. California, Maine, New Jersey and
Washington are among the states in the United States
that place the
least restrictions on abortions. All four do not require
mandatory waiting periods, mandatory ultrasounds
or mandatory
counselling. California, New Jersey and Washington are also
among the 17 states that offer or require health
programmes to cover
abortions. California and Washington are the only two states
that received A+ grades by the NARAL Pro-Choice
America Foundation.
NARAL is a non-profit organisation in the United States that engages
in political action to oppose
restrictions on abortion and expand
access to abortion.
[56]
See,
for example, Switzerland and, in Germany, BGHZ 86, 240 (Lipstein
translation) above n 38:
“
This
Division is not oblivious of the fact that as a result seriously
handicapped children remain without financial protection,
once the
duty of the parents to maintain them comes to an end – as for
instance when they die. This must be accepted”.
[57]
See
the Netherlands:
Kelly
above n 37 at para 4.15; California:
Turpin
v Sortini
31 Cal 3d 220
;
643 P 2d 954
(Cal 1982) (
Turpin
)
at 233-4;
and
Washington:
Harbeson
v Parke-Davis, Inc
98 Wash 2d 460
;
656 P 2d 483
(Wash 1983) (
Harbeson
)
at 478-9.
[58]
Turpin
id at 233-4. That Court recognised a claim for special damages
only.
[59]
Section 28.
[60]
(1958)
BverfGE 7, 198 (
Lüth
).
[61]
See
Du
Plessis
above
n 12 at para 41:
“
The
purpose of this perhaps overlong account of constitutional
adjudication elsewhere is to see what guidance it might provide
in
the interpretation of the South African Constitution. In my
opinion there is at least one positive lesson to be learnt
from the
Canadian and German approaches to the problem before us. Both
Canada and Germany have developed a strong culture
of individual
human rights, which finds expression in the decisions of their
courts. Yet, after long debate, both judicial
and academic, in
those countries, the highest courts have rejected the doctrine of
direct horizontal application of their Bills
of Rights. On
this issue, as on the retrospectivity issue, the example of these
countries seriously undermines the defendants’
contention that
anything other that a direct horizontal application of Chapter 3
must result in absurdity and injustice.”
[62]
Harriton
above n 16 at paras 58-9. See also para 7:
“
There
is no legislation and no settled judicial authority in Australia to
resolve the content of the law. It is therefore
the duty of
this Court to do so in the usual way. It must proceed by
analogous reasoning from past decisions, drawing upon
any relevant
considerations of legal authority, principle and policy.”
(Footnote omitted.)
[63]
Section
1(a) of the Constitution states that “[h]uman dignity, the
achievement of equality and the advancement of human
rights and
freedoms” are part of the foundational values of our state.
[64]
Section
9(1) provides: “Everyone is equal before the law and has the
right to equal protection and benefit of the law.”
Section 9(2) reads, in relevant part: “Equality includes the
full and equal enjoyment of all rights and freedoms.”
[65]
Section
10 provides: “Everyone has inherent dignity and the right to
have their dignity respected and protected.”
[66]
Section
28(2) provides: “A child’s best interests are of
paramount importance in every matter concerning the child.”
This right has been recognised as an independent right by this Court
in a number of instances, including
Sonderup
v Tondelli and Another
[2000]
ZACC 26
;
2001 (1) SA 1171
(CC);
2001 (2) BCLR 152
(CC) at para 29
and
Minister
for Welfare and Population Development v Fitzpatrick and Others
[2000] ZACC 6
; 2000 (3) SA 422 (CC)
[2000] ZACC 6
; ;
2000 (7) BCLR 713
(CC) at
para 17.
[67]
Road
Accident Fund v Mtati
[2005] ZASCA 65
;
2005 (6) SA 215
(SCA) (
Mtati
).
[68]
Id
at para 39.
[69]
In
Mukheiber
above n 2 at para 25 the Supreme Court of Appeal recognised, in
principle, that the invasion of a person’s right is part
of
the wrongfulness enquiry:
“
Further,
common to all approaches is that unlawfulness, in the relevant
sense, is to be found in the violation of the rights of
the person
suffering damage as a consequence of the act complained of and that
whether or not there was a violation of a right
of the claimant (or
the converse, a dereliction of a duty by the defendant) depends on a
number of considerations, including
in the final instance, public
policy”.
[70]
Law
Society of South Africa and Others v Minister for Transport and
Another
[2010] ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) (
Law
Society
).
[71]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
[2014] ZACC 28
(
Country
Cloud
).
[72]
Id
at paras 20-1.
[73]
Fagan
“Aquilian Liability for Negligently Caused Pure Economic Loss
– Its History and Doctrinal Accommodation”
(2014) 131
SALJ
288
calls this the “central case of Aquilian liability”.
Developments beyond this have been referred to as the “extended
actio
legis Aquiliae
”.
See
Mukheiber
above n 2 at para 4.
[74]
He
objected to calling it a “wrongful birth” claim.
[75]
Edouard
above n 2 at 590E-F. This argument is valid, perhaps even more
strongly, where the child is born with a disability.
[76]
Above
n 2 at para 46.
[77]
Id
at para 49.
[78]
Section
12(2)(a) of the Constitution.
[79]
Section
12(2)(b) of the Constitution.
[80]
Compare
Roederer “Wrongly Conceiving Wrongful Conception: Distributive
vs Corrective Justice”
(2001) 118
SALJ
347
at 363 and Fagan above n 73 at 308.
[81]
As
intimated in
Stewart
above n 3 at para 11.
[82]
See,
for example,
AD
and Another v DW and Others
[2007] ZACC 27
;
2008 (3) SA 183
(CC);
2008 (4) BCLR 359
(CC) at para
59 and fn 65 and
Girdwood
v Girdwood
1995 (4) SA 698
(C) at 708J-709A.
[83]
Mpofu
v Minister for Justice and Constitutional Development and Others
[2013] ZACC 15
;
2013 (9) BCLR 1072
(CC) (
Mpofu
).
[84]
2003
(3) SA 628 (T).
[85]
Id
at 630G and endorsed by this Court in
Mpofu
above n 83 at para 21 and fn 20.
[86]
Some
commentators claim that the law of delict (or torts) is, or should
be, based on corrective, not distributive, justice.
The
distinction comes from Aristotle. Corrective justice must be
understood on an “arithmetic” model of addition
and
subtraction between two holders. One has gained and the other
has lost. The question is whether and how the transaction
should be reversed or corrected between them. Distributive
justice must be understood on the “geometric” model
of
division. There are several holders involved and the question
is how to divide gains or losses among them. The
distribution
is not done on the basis of subtraction and addition, but according
to the needs of each holder. See, for
example, Weinrib
Corrective
Justice
(OUP, Oxford 2012) and Gardner “What is Tort Law for? Part 1.
The Place of Corrective Justice” (2011) 30
Law
and Philosophy
1.
Fagan above n 73 at 313 also argues that our law of delict is
grounded in corrective justice. I am not aware that
the
distinction has been drawn in explicit terms in our case law and I
am not sure that it should. It might add an unnecessary
layer
to the general principles of Aquilian liability, which on their own
terms already require that only patrimonial damages
may be claimed
for a wrong done by one to another. The claim for intangible,
non-patrimonial loss for pain and suffering
and loss of amenities of
life under our law is historically
sui
generis
and limited in its scope and application. See [77].
[87]
See,
in relation to the possibility of developing the common law to
include constitutional damages,
Fose
above
n 12 at paras 58-61.
[88]
See
Country
Cloud
above n 71 at paras 20-1, quoted at [53].
[89]
Id
at para 25.
[90]
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
[2014] ZACC 4
;
2014 (3) SA 394
(CC);
2014 (5) BCLR 511
(CC) at para
53;
Hirschowitz
Flionis v Bartlett and Another
[2006] ZASCA 23
;
2006 (3) SA 575
(SCA) at paras 27-8; and
Mukheiber
above n 2 at para 25.
[91]
See
Lee
v Minister for Correctional Services
[2012] ZACC 30
;
2013 (2) SA 144
(CC);
2013 (2) BCLR 129
(CC) at para
38 for our law’s double test for causation: factual and legal.
[92]
See
Mukheiber
above
n 2 at paras 51-2;
Edouard
above n 2 at 590E-G; and
Friedman
above n 2 at 1140B-C.
[93]
See
Edouard
id at 595H.
[94]
Compare
Minister
of Police v Mboweni
[2014]
ZASCA
107
at
para 10.
[95]
Constantaras
v BCE Foodservice Equipment (Pty) Ltd
[2007]
ZASCA 86
;
2007 (6) SA 338
(SCA) at paras 30-1;
Trope
and Others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269G-I; and
Group
Five Building Ltd v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993 (2) SA 593
(A) at 602C-D.