C.J.H v Kingsbury Foetal Assessment Centre (Pty) Ltd (4872/2013) [2014] ZAWCHC 61 (24 April 2014)

C.J.H v Kingsbury Foetal Assessment Centre (Pty) Ltd (4872/2013) [2014] ZAWCHC 61 (24 April 2014)

South African law does not recognise 'wrongful life' claims brought by a child born with disabilities against a medical practitioner for failure to warn the mother of risks during pregnancy. Such claims are contrary to public policy and the convictions of the community, as they require the court to determine that non-existence is preferable to life, which is a question the law should not answer. The authorities of Friedman and Stewart, as confirmed by the Supreme Court of Appeal, remain binding. The defendant did not owe a legal duty to the child as a foetus in utero that could give rise to a claim for damages based on the alleged failure to prevent his birth. The exception is upheld and...

Citation
[2014] ZAWCHC 61
Parties
Plaintiff: C[...] J[...] H[...]; Defendant: Kingsbury Foetal Assessment Centre (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 April 2014
Case Number
4872/2013
Procedural Posture
Exception Application / Exception to Particulars of Claim; Judgment on Exception
Outcome
Exception upheld; plaintiff's claim dismissed with costs.
Judges
Baartman
Legal Topics
Wrongful Life, Duty of Care, Public Policy, Medical Negligence, Wrongful Birth, Constitutional Rights
Delict Wrongful Life Duty of Care Public Policy Medical Negligence Wrongful Birth Constitutional Rights

Case Brief

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Parties

C[...] J[...] H[...]

Plaintiff

Kingsbury Foetal Assessment Centre (Pty) Ltd

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Judgment on Exception

Legal Issues

  1. 1 Does South African law recognise a 'wrongful life' claim brought by a child born with disabilities against a medical practitioner for failure to warn the mother of risks during pregnancy?
  2. 2 Is such a claim contra bonos mores or contrary to public policy?
  3. 3 Can damages be awarded by comparing the value of non-existence with existence in a disabled state?

Ratio Decidendi

South African law does not recognise 'wrongful life' claims brought by a child born with disabilities against a medical practitioner for failure to warn the mother of risks during pregnancy. Such claims are contrary to public policy and the convictions of the community, as they require the court to determine that non-existence is preferable to life, which is a question the law should not answer. The authorities of Friedman and Stewart, as confirmed by the Supreme Court of Appeal, remain binding. The defendant did not owe a legal duty to the child as a foetus in utero that could give rise to a claim for damages based on the alleged failure to prevent his birth. The exception is upheld and...

Court Disposition

Exception upheld; plaintiff's claim dismissed with costs.

Orders

  • The excipient’s exception to the plaintiff’s claim in her representative capacity on behalf of her minor son is upheld.
  • The plaintiff’s claim is dismissed with costs.