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[2014] ZAWCHC 61
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C.J.H v Kingsbury Foetal Assessment Centre (Pty) Ltd (4872/2013) [2014] ZAWCHC 61 (24 April 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 4872/2013
In
the matter between:
C[…]
J[…]
H[…]
..................................................................................................
Plaintiff
(Respondent)
And
The
Kingsbury Foetal Assessment
…........................................................................
Defendant
Centre
(Pty) Ltd
…....................................................................................................
(Excipient)
JUDGMENT
DELIVERED ON 24 APRIL 2014
BAARTMAN,
J
[1]
On 4 […], M[…] P[…] H[…]
(M[…]) was born with Down’s syndrome. This is an
exception taken
to M[…]’s claim for damages resulting
from medical negligence, a failure to have assessed the high risk of
abnormality
in the foetus and to have informed his pregnant mother,
C[…] J[…] H[…] (H[…]), of the risks
associated with her pregnancy, which caused him
to be born rather than aborted.
[2]
The purpose of an exception is to dispose of
the case or a portion thereof in an expeditious manner, or “to
protect oneself
against an embarrassment which is so serious as to
merit the costs even of an exception.” (See
Lobo
Properties (Pty) Ltd v Express Lift Co. (SA) (Pty) Ltd
1961(1) SA 704 [CPD] at 711 G ) In the notice of exception, the
excipient must state in "clear and concise" terms the
particulars on which the exception is based and is bound by them. The
clear particulars on which this exception is based are set
out below.
BACKGROUND
[3]
H[…] issued summons in
“
her
representative capacity as the mother and natural guardian
"...of
M[…] and alleged that:
(a)
on 8 October 2007, H[…], at the
time pregnant with M[…], attended the Kingsbury Foetal
Assessment Centre (Pty) Ltd
(the excipient) to have a foetal
assessment done;
(b)
the excipient’s staff, acting in
the course and scope of their employment, carried out an NT scan on
H[…];
(c)
the video of the NT scan clearly showed,
“
a very large abnormal nuchal
translucency present in that although the Defendant measured the
nuchal translucency at 1.9mm, it actually
measured between 4mm -
5.3mm, such a measurement indicating a very high risk of DS in the
foetus."
(d)
the excipient’s employees failed
to correctly interpret the NT scan and, as a consequence, did not
warn H[…] of “
a very
high risk of foetal abnormality, particularly chromosomal and cardiac
defects.”
(e)
properly informed of the risk, H[…]
would immediately have aborted the foetus;
(f)
The sequelae of the
defendant’s breach of its duty of care, and therefore
negligence ...are:
(i)
M[…] was bom with severe DS;
(ii)
M[…] has serious and permanent
cardiac defects;
(iii)
M[…]
has IGA deficiency...
(iv)
At the time of the assessment it was
reasonably foreseeable that should DS present in the foetus at the
time of the assessment not
be detected, as it should have been, M[…]
would probably be born with DS and that the Plaintiff (H[…])
would consequently
suffer damages and incur additional expenses in
caring for and providing for care for M[…] for the rest of his
natural life
”
[4]
The excipient took exception to the particulars of claim in the
following terms:
“
8.
Accordingly, the particulars are expiable in one or more or all of
the following respects –
8.1
The present action (and the claim so
instituted on behalf of M[…]) is bad in law; and/or
8.2
The present action (and the claim so
instituted on behalf of M[…]) is contra bonos mores and/or
contrary to the public policy;
and/or
8.3
Actions and /or a claim such as the
present one of M[…] are not recognised or permissible in terms
of South African law;
and /or
8.4
Based, as the action is, on the alleged
breach of a legal duty (duty of care), particulars contain no
allegation to the effect that
defendant assumed, undertook or,
indeed, had, any legal duty towards M[…] whilst still a foetus
in utero and, more in particular,
on 8 October 2007; and/or
8.5
Defendant could not, in law, have
undertaken or assumed a legal duty towards M[…] (whilst a
foetus in utero and/or prior
to his birth and/or on 8 October 2007)
that would have obliged it to take such action as might be required
or necessary to cause
M[…]'s life (as a foetus in utero) to be
terminated; and/or
8.6
Defendant did not owe M[…] a
legal duty (a duty of care) that could lead to the termination of his
existence in the circumstances
pleaded in the particulars; and/or
8.7
M[…] does not have a delictual
claim against defendant for
"allowing”
him to be born with Down Syndrome and the related pathology instead
of giving plaintiff such advice as would
have caused her to terminate
her pregnancy, thereby causing M[…] never to have existed in
the legal sense; and/or
8.8
Defendant could not have, and did not,
act unlawfully towards M[…]; and, further, it is not alleged
in the particulars that
he did so act; and /or
8.9
Defendant could not have, and did not,
act unlawfully towards M[…]; and further, it is not alleged in
the particulars that
he did so act; and/or
8.10
No legal viable cause or right of action
exists in South African law for the damages that plaintiff purports
to claim on behalf
of M[…]; and/or
8.11
The legal effect and implications of the
relief claimed by plaintiff in casu on behalf of M[…] is that
of requiring the above
Honourable Court
to have hold and/or to make a finding to the effect that it would be
better for M[…] not to have the ‘
unquantifíable
blessing of life’ rather
than to have such life, albeit in a marred way; and it would be
contrary to public policy for the
above Honourable Court to do so;
and/or
8.12
Regard being had to the contents of the
particulars and the true nature of the claim presently instituted on
behalf of M[…],
it is not possible or competent for the above
Honourable Court to determine and/or award damages by means of a
process of comparing,
on the one hand, the value of non-existence (in
the event of a termination of the relevant pregnancy) with, on the
other hand,
the value of existence (albeit in an abnormal, disabled
or malformed state); and/or
8.13
In so far as the contents of paragraph
13.2 and 13.3 of the particulars are concerned, the claims contained
therein -
8.13.1
would (ordinarily) properly and
appropriately be designated as those of one or other or both of
M[…]’s parents and
natural guardians, in his/her/their
personal capacities (as the case may be) or losses and/or expenditure
that has/have been, or
will in the future be, incurred in respect of
M[…]; and/or
8.13.2
would (ordinarily) properly and
appropriately be designated as those of such person or persons, in
his/her/their capacities (as
the case may be) as might legally be
responsible for losses and/ or expenditure that have been, or will in
the future be, incurred
in respect of M[…]; and/or
8.13.3
do not properly constitute claims for
those losses suffered, or to be suffered in the future of M[…].”
[5]
Mr Van
der Spuy, who appeared for the excipient, submitted that the
decisions in
Friedman
v Glicksman
1996
(1) SA 1134
(WLD),
Stewart
and Another v Botha and Another
2007 (6) 247 (C) and the Supreme Court of Appeal (SCA) decision at
2008(6) SA 310 (SCA) in the Stewart matter, were authority for
the
proposition that South African Law does not recognise or permit
“wrongful life actions”. It is necessary to deal
with
these decisions in some detail.
The
Friedman matter
[6]Succinctly,
the facts of the Friedman matter in the exception were:
(a)
The plaintiff (respondent), who was
pregnant at the time, consulted the defendant (excipient) - a
specialist gynaecologist - who
advised her that there was no greater
risk than normal of her unborn child being born with abnormalities or
in a disabled condition.
(b)
Acting on the advice, the plaintiff
carried to term and on 5 March 1991 gave birth to Alexandra
(Alexandra). However, Alexandra
suffered the very abnormalities the
excipient had a duty to warn about and had been contracted to warn
about.
(c)
The excipient was negligent in not
alerting the plaintiff of the higher than normal risk of
abnormalities in the foetus. At the
time of consulting, it was
understood that the plaintiff would have aborted the foetus if there
had been a higher than normal risk
of the unborn child being born
with abnormalities.
(d)
Therefore, the plaintiff sued in her
personal capacity for the expenses of maintaining and rearing
Alexandra as well for future
medical and other special expenses.
(e)
In her representative capacity on behalf
of Alexandra, the plaintiff sued for general damages as well as a
claim for future loss
of earnings.
[7]
In the Friedman matter, Goldblatt J,
remarked that counsel had with “considerable diligence"
made available to him many
of the judgments and articles written on
the issue in both foreign and local jurisdictions. In this matter,
counsel displayed the
same diligence. Goldblatt J said the following
about the common terminology at page 1138:
"..
.
‘
Wrongful pregnancy
’
refers to those cases where the parents of a healthy child bring a
claim on their own behalf for damages they themselves
have suffered
as a result of giving birth to an unwanted child.
‘
Wrongful
birth’
are
those claims brought by parents who claim they would have avoided
conception or terminated the pregnancy had they been properly
advised
of the risk of birth defects to the potential child.
‘
Wrongful
life
' actions are those
brought by the child on the basis that the doctor’s negligence
- his failure to adequately inform the
parents of the risk - has
caused the birth of the disabled child. The child argues that, but
for the inadequate advice, it would
not have been bom to experience
the pain and suffering attributable to the disability.”(
my
underlining)
[8]
In respect of the contract between the
plaintiff and the excipient, Goldblatt J said:
“
In
my view the contract entered into between the plaintiff and the
defendant
was
sensible, moral and in accordance with modem medical practice. The
plaintiff was seeking to enforce a right, which she had,
to terminate
her pregnancy if there
was
a serious risk that her child might be seriously disabled.
...a
‘
wrongful birth’ claim is
not contra bonos mores.
”
[9]
In upholding the exception in respect of
Alexandra’s claim, the court said at 1142-1143:
“
In
my view, it would be contrary to public policy for Courts to have to
hold that it would be better for a party not to have the
unquantified
blessing of life rather than to have such life albeit in a marred
way.
...The
defendant was in no way responsible for the child's disabilities and
yet he is being asked to compensate the child for such
disabilities.
This proposition is, in my view, illogical and contrary to our legal
system. The only measure of damages can be the
difference in value
between non-existence and existence in a disabled state. No criteria,
in law, can exist in establishing such
difference or even in
establishing whether any damage has been sustained.”
[10]
That finding accorded with English and
other foreign decisions at the time.
The
Stewart matter in the High Court
[11]
Brian Stewart (Brian) was born with
severe disability after the defendants (excipients), a general
medical practitioner and a gynaecologist,
failed to detect
deformities and abnormalities in the foetus during pregnancy.
[12]
In their particulars of claim, the first
plaintiff, Brian’s mother, claimed that the excipients had
breached a contractual
alternatively a legal duty owed to her. In her
personal capacity she claimed for past and future medical expenses
occasioned by
Brian's special schooling and maintenance for the rest
of his life.
[13]
Brian’s father, the second
plaintiff, sued in his representative capacity as Brian’s
father and natural guardian for
future medical treatment necessitated
by his disability, the costs of his special schooling and his
maintenance.
[14]
It was common cause that Brian’s
abnormalities were “congenital in nature."
[15]
No exception was taken to the “Wrongful
birth” claim. Therefore, Louw J dealt only with an exception in
respect of the
“Wrongful Life" claim. At the time, the
Friedman judgment was the only decided South African case.
[16]
Louw J found that the Friedman matter
was distinguishable from the Stewart matter. Friedman’s claim
was for general damages
for pain and suffering, loss of amenities of
life and cost of special schooling and maintenance; whereas, Brian’s
claim was
for medical expenses, cost of special schooling and for
maintenance. Nevertheless, Louw J held that the same principles
applied.
[17]
After a critical analysis of the
Friedman matter and considering a number of foreign judgments, Louw J
concluded:
“
[18]
The sanctity of life argument has been eroded in South Africa in a
number of respects. First there is the Choice of Termination
Act 92
of 1996...
[23]
The second ground on which the claim for wrongful life
was disallowed in Friedman is that it
would open the door for disabled children to sue their parents
because they may, for a variety
of reasons, have allowed the child to
be born knowing of the risks inherent in such a decision. In my view
this does not follow.
...The couple who decides, with knowledge of
the risks involved, to conceive, and the expecting mother, who
decides not to procure
an abortion in the face of the known or
foreseeable risks, act in the exercise of their constitutional right
to make decisions
concerning reproduction.... Whether or not it
should be held to be unlawful
vis-á-vis
the child for the parents to
conceive...will depend on the circumstances and the views of
the community incorporating the constitutional
values and norms set out in the Constitution. ...
[30]
The answer to B’s (Brian's) claim is therefore that, in view of
the current state of medical science, the only life ever
possible to
him was a life in the handicapped state to which he was born...The
negligent conduct of the defendants is therefore
legally irrelevant
to the state in which B (Brian) was born.
[31]
it follows that the second plaintiff's claim as formulated in the
particulars of claim does not disclose a cause of action
in our law."
The
Stewart matter in the SCA
[18]
In dismissing the appeal against Louw
J’s upholding of the exception, Snyders AJA said:
"
[5]
...As there has been a considerable amount of recent debate
[1]
on the subject and to provide focus in the current enquiry, it is
necessary to revert back to the starting point in our law of
delict
when wrongfulness is to be decided. In Telematrix (Pty) Ltd v
Advertising Standards Authority S/\
2006 (1) SA 461
(SCA) at 468 the
following is stated:
‘
[12]
The first principle of the law of delict, which is so easily
forgotten and hardly appears in any local text on the subject,
is, as
the Dutch author Asser points out, that everyone has to bear the loss
he or she suffers. The Afrikaans aphorism is that
“skade rus
waar dit val". Aquilian liability provides for an exception to
the rule and, in order to be liable for the
loss of someone else, the
act or omission of the defendant must have been wrongful and
negligent and have caused the loss. But
the fact that an act is
negligent does not make it wrongful although foreseeability of damage
may be a factor in establishing whether
or not a particular act was
wrongful. To elevate negligence to the determining factor confuses
wrongfulness with negligence and
leads to the absorption of the
English law tort of negligence into our law, thereby distorting it.
[13] When dealing
with the negligent causation of pure economic loss it is well to
remember that the act or omission is not prima
facie
wrongful (“unlawful" is the synonym and is less of a
euphemism) and that more is needed. Policy considerations must
dictate that the plaintiff should be entitled to be recompensed by
the defendant for the loss suffered (and not the converse as
Goldstone J once implied unless it is a case of prima facie
wrongfulness, such as where the loss was due to damage caused to the
person or property of the plaintiff.) In other words, conduct is
wrongful if public policy considerations demand that in the
circumstances
the plaintiff has to be compensated for the loss caused
by the negligent act or omission of the defendant.’
[
6]
The enquiry as to negligence and wrongfulness is separate and
distinct and should not be confused as to terminology or
substance.
[2]
"
[19]
Snyders AJA considered the trend
in other jurisdictions and found the majority worldwide disallowed
“Wrongful Life”
claims, eg England, Canada, Australia,
and France - where the courts initially found liability in “Wrongful
life” claims.
However, on 4 March 2002, legislation was enacted
after pressure from groups representing disabled people and those
representing
gynaecologists, obstetricians and ultra-sonographers.
The court further considered contrary trends in Holland, the US where
“t
he Appellate Division of the
New York Supreme Court in Park v Chessin
400 NYS 2d 110
(1977)
allowed a claim of this nature for special damages while at the same
time refusing a claim for general damages. Thereafter
the supreme
court of California, Washington and New Jersey followed suit."
[20]
The court found that it was impossible
to assess the harm caused “...not merely difficult, because it
is essential to such
a decision that the court finds that
non-existence is preferable to life.” After considering the
debate as it has for some
time been raging in publications and
judgments, the Constitution and the need to develop the common law,
the court concluded:
"[28]
The essential question that is asked when enquiring into wrongfulness
for purposes of delictual liability is whether
the law should
recognise an action for damages caused by negligent conduct
[3]
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."
[21]
Against the above background,
M[…]’s case is brought as a test case. Mr Hoffman SC,
who appeared for the plaintiff,
submitted that Friedman and Stewart
were decided “in a previous legal order and the courts seized
with the matters were not
able to examine the parameters of the duty
of care owed to children within the context of their rights afforded
to them in the
Bill of Rights.”
[22]
The Stewart judgments were delivered on 7 April 2007 by Louw J and 3
June 2008 by Snyders AJA. The Constitution came into operation
in
1996. As indicated above, the SCA rejected the invitation to develop
the common law after a consideration of the relevant Constitutional
provisions. In 2008, Snyders AJA said
“...The debate illustrates that for every argument there has
been a counterargument and vice versa and there are hardly
novel
contentions being raised
."
That
was also the position in this matter.
[23]
However, on 20 March 2014, in the matter
of Loureiro and Others v iMvula Quality Protection (Pty) Ltd
[2014]
ZACC 4
, the Constitutional Court imposed liability on a private
security company in the following circumstances:
The
Loureiro facts
[24]
In November 2008, the Loureiro family
moved into a new house in Melrose, Johannesburg. Since the family had
been robbed at gun point
in their previous home, Mr Loureiro
implemented extensive security measures at their new home -
electrified fencing, perimeter
beams, multiple alarm systems and a
guard house as well an intercom system with closed-circuit
television.
[25]
An oral agreement between Mr Loureiro
and iMvula security provided for 24-hour armed guard services at the
house and further:
“
6.5.1
[iMvula] would take all reasonable steps to prevent persons gaining
unauthorised access and/or entry to the premises;
6.5.2
[iMvula] would take all reasonable steps
to protect the persons and property of [the Loureiro family];
6.5.2
[iMvula]
would take all reasonable steps to ensure that no persons gained
unlawful access to the premises.”
[26]
A few days after the guard services
commenced, Mr Loureiro's brother was allowed onto the premises
without the guard first obtaining
Mr Loureiro’s permission. In
December 2008, Mr Loureiro, concerned about guards granting access to
the premises without first
obtaining permission, caused to have the
intercom partially disabled so that the guards would be unable to
open and close the main
driveway gate, without contacting the main
house.
[27]
That arrangement affected the ability of
the guards to change shift, so Mr Loureiro provided a key to the
pedestrian gate but expressly
prohibited the use of the key for any
other purpose.
[28]
On 22 January 2009, the guard used the
key to let robbers posing as police officers onto the premises. Van
der Westhuizen J who
wrote for a unanimous court found iMvuia liable
as follows:
“
[56]
There are ample public-policy reasons in favour of imposing
liability. The constitutional rights to personal safety and
protection
from theft of or damage to one's property are compelling
normative considerations. There is a great public interest in making
sure
that private security companies and their guards, in assuming
the role of crime prevention for remuneration, succeed in thwarting
avoidable harm. If they are too easily insulated from claims for
these harms because of mistakes on their side, they would have
little
incentive to conduct themselves in a way that avoids causing harm.
And policy objectives (such as the deterrent effect of
liability)
underpin one of the purposes of imposing delictual liability. The
convictions of the community as to policy and law
clearly motivate
for liability to be imposed. ”
[29]
I am not persuaded that there has been a
change in "the convictions of the community" since the SCA
judgment in the Stewart
matter. On the contrary, public opinion
continues to be influenced by the remarkable resilience in overcoming
enormous odds displayed
by many disabled persons in all walks of
life, refuting those who “treat their lives as inferior to
non-existence."
(see para 13 of the SCA Stewart judgment)
CONCLUSION
[30]
I, for the reasons stated above, make the following order.
(a)
The excipient’s exception to the
plaintiffs claim in her representative capacity on behalf of her
minor son M[…] is
upheld.
(b)
The plaintiffs claim is dismissed with
costs.
Baartman
J
[1]
Anton
Fagan 'Rethinking wrongfulness in the law of delict' (2005) 122 SALJ
90;
J Neethling The conflation of wrongfulness and negligence; Is it
always such a bad thing for the law of delict?'
(2006) 123 SALJ
204
;
R W Nugent 'Yes, it is always a bad thing for the law. A reply to
Professor Neethling’ (2006) 123 SALJ
557.
[2]
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Ply) Ltd
2006
(3) SA 138
(SCA) at 144 para 11;
Telematrix
at
469B-E; R W Nugent at 558.
[3]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 12 E-F.