he Constitutional Court in H v Fetal Assessment Centre 2014 JDR 2720 (CC) set

the framework within which the High Court is to consider the recognition of a
childs claim against a medical practitioner who misdiagnosed a congenital
disability or some serious medical condition pre-natally, resulting in the child
being born with a disability. Such a claim has until now not been recognised in
our law and is more commonly referred to as a wrongful life claim.
The applicant is a boy born with Down Syndrome in 2008. His mother instituted
a claim on his behalf in the High Court for damages against the Respondent for
their alleged wrongful and negligent failure to warn her of the high risk that the
child may be born with Down Syndrome. It is alleged that, had the mother been
advised, she would have chosen to terminate the pregnancy. The childs claim is
for special damages for past and future medical expenses, as well as for general
damages for disability and loss of amenities of life.
The childs claim was couched on the basis of a duty of care and a breach of said
duty owed to the childs mother in her representative capacity as mother and
natural guardian of the child. The Defendant brought an Exception to the
Particulars of Claim on the basis the claim is bad in law in that it did not disclose
a cause of action recognised by our law. The High Court, seemingly in relying on
the decision of the Supreme Court of Appeal in the matter of Stewart and
Another v Botha and Another 2008 (6) SA 310 (SCA), upheld the Exception and
dismissed the Plaintiffs claim with costs. The child consequently appealed to the
Constitutional Court against this judgement.
Even though our law recognises a parental claim for patrimonial damages (actual
costs and expenses) suffered by the parents following the misdiagnosis of a
congenital disability pre-natally in circumstances where the parents would have
chosen to terminate the pregnancy, a similar claim is not recognised for the child
after being born with the disability. In the Stewart matter, the SCA described the
core question to be answered when determining the viability of the childs claim
as whether it would have been preferable from the childs perspective to not
have been born at all, a question which it held goes so deeply to the heart of
what it means to be human that it should not be asked of our law. The SCA held
further that for such a claim to succeed, the court would be required to evaluate
the existence of the child against his or her non-existence. Consequently, the
SCA held that the childs claim cannot be recognised by our law.
The Constitutional Court in its judgement is critical of the Stewart decision, inter
alia, for not taking the values and rights enshrined in our Constitution, including
the right of children to have their best interests considered of paramount
importance in every matter concerning them, into account when considering the
viability of the childs claim. Section 39(2) of the Constitution requires that our
courts must, when developing the common law, promote the spirit, purport and
objects of the Bill of Rights. Thus, our common law must conform to the values
and rights enshrined in our Constitution and the Bill of Rights.
The Constitutional Court was further critical of the term wrongful life as being
inaccurate in that the legal issue to be determined is not the wrongful life of the
child, but rather whether he or she should be allowed by our law to claim
compensation for a life with disability.

The Constitutional Court defined its purpose with regard to its assessment of the
case not to determine finally whether the child has a claim, but to decide
whether our common law may possibly be developed to recognise it. In this
assessment, the Constitutional Court examined the potential for recognition of
the childs claim against the elements of a delict. It found that, by using the
principles of the but for test, factual causation can be established. It left a
determination on legal causation, and thus whether the wrongdoing is
sufficiently closely linked to the loss for legal liability to ensue, for determination
by the trial court after all the facts have been led in evidence.
The Constitutional Court further held that negligence would have to be proved by
the applicant in accordance with the general principles of our law and applied to
the specific facts of the case. With regard to the element of damages, the
Constitutional Court opined that a childs claim for patrimonial damages is
conceivable. However, a determination with regard to a claim for intangible
losses (pain and suffering, and loss of amenities of life) was left to the High Court
to consider.
The Constitutional Courts approach to the elements of harm causing conduct
and wrongfulness is of interest. With regard to the requirement of harm causing
conduct, the Constitutional Court stated that the paradox is that the medical
condition or congenital disability was not caused by the practitioners
negligence. However, if the negligent conduct in the form of the misdiagnosis
had not occurred and the mother was told of the risk of disability, there would
never have been a birth, and consequently a disabled child and the addition
financial burden it entails.
As mentioned, our law recognises the parents claim for patrimonial loss in the
form of an unwanted financial burden in these instances on the basis that it
deprived the parents of an informed choice to terminate the pregnancy. Unlike
the parents, the child suffers no constitutionally protected loss of personal
choice.
In terms of the legal position as it currently stands, the financial loss will befall
the child instead of the medical practitioner should the parents fail to institute
action. As such, the Constitutional Court opined that the misdiagnosis could
arguably cause harm to the child in the sense of a burden on the child in
circumstances where the parents fail to pursue their own claim, i.e. the harm
causing event.
The Constitutional Court was further of the view that recognising the childs
claim for patrimonial damages will not result in a claim in excess of the medical
practitioners liability to the parents on the basis that the two claims are seen as
a single claim and not cumulative. The Constitutional Court thus opined that it is
conceivable that a court may, after all the facts are known at the trial, conclude
that the practitioner is liable to the child for the same loss he would have been
liable for apropos the parents.
The question of wrongfulness (whether society requires that liability be imposed
on a wrongdoer) is determined by public policy, which is to be found in the
values enshrined in our Constitution. Part of the wrongfulness inquiry is to
determine whether a breach of a legal duty not to harm the claimant has taken

place, or determine whether there has been a breach of a claimants rights /

interests.
In terms of the Constitution, children have the right to have their best interests
given paramount importance to in every matter concerning them. Should the
parents not pursue a claim against the medical practitioner in respect of the
childs disability, it will result in the loss lying with the child in terms of our
current legal position. This outcome is conceivably not in the best interests of
the child. As such, the Constitutional Court opined that there may be a legal
duty not to cause this loss to the child, a breach of which will infringe the childs
rights in terms of section 28(2) of the Constitution.
The court felt that there could be no argument that recognising this claim will
result in a claim against the parents by the child for choosing not to abort in
circumstances where the parents were aware of the disability as the child would
have to show that the mother was wrongful and negligent in her choice not to
abort. The Constitutional Court opined that this might prove difficult when
regard is had to the mothers right to a free and informed choice regarding
reproduction and her body.
The Constitutional Court was thus of the view that wrongfulness as element of a
delict could conceivably be found with regard to the viability of the childs claim.
The Constitutional Court opined that the Exception procedure was an
inappropriate process on which to determine the viability of the childs claim. It
referred to prior case law wherein it was held that, where the factual situation is
complex and the legal position uncertain, the interests of justice will not be
served unless all facts on which the determination is to be made are led in
evidence. The court further held that the issue at hand, namely the
development of the common law of delict to allow a childs claim of this nature,
is too complex to be determined on Exception and, as such, requires that all the
facts be lead in evidence.
The Constitutional Court held that a childs claim may potentially be found to
exist, however, left it up to the High Court to determine finally whether it in fact
does and in what form. It however, cautioned that the decision must accord with
the Constitutional rights and values, which include that the best interests of the
child be of paramount importance in all matters concerning him or her.
The Constitutional Court commented that, even if the High Court reaches the
conclusion that the limits of our law of delict will be stretched beyond recognition
in order to acknowledge the childs claim, our Constitution gives our courts the
liberty to develop motivated exceptions to the common law rules or recognise
new remedies for infringement of rights.
Although the Constitutional Court does not make a final determination in respect
of the viability of the childs claim, one gains the impression from reading the
judgement that the court leans towards recognising the childs claim. It
continuously refers to the Constitution requiring that a childs best interests be of
paramount importance. It further emphasises that the High Court is the upper
guardian of children, which obliges our courts to act in the best interest of
children in all matters involving them. The Constitutional Court confirmed that
said powers to determine what those interests are, are extremely wide.

IMPACT OF RECOGNITION OF CHILDS CLAIM ON MEDICAL MALPRACTICE

IN SOUTH AFRICA
As pointed out by the Constitutional Court, should the High Court, after hearing
all the evidence, recognise the childs claim against the medical practitioner who
negligently misdiagnosed the cognitive disability pre-natally in circumstances
where the mother would have terminated the pregnancy, the practitioner will not
be held liable to the child in excess of his liability to the parents insofar as
patrimonial damages are concerned. However, should the High Court also
acknowledge the childs claim for non-patrimonial damages (pain and suffering,
loss of amenities of life, etc.), the claim against the medical practitioner by the
child will exceed his liability to the parents. The degree to which the child is
aware of his or her situation will play a role in the determination of the quantum
of certain heads of the non-patrimonial damages.
A further implication of the recognition of the childs claim pertains to
prescription. Whereas the prescription period in respect of the parents claim is
three years, prescription in respect of the childs claim will occur much later
when regard is had to the Prescription Act 68 of 19. Prescription insofar as the
childs claim is concerned will depend on the degree and type of the disability,
however, on the basis that the child is a minor, without taking the disability into
account, the claim will only become prescribed one year after the child reaches
the age of majority (18 years). It is thus conceivable that, upon recognition of
the childs claim by the High Court, actions may be instituted against medical
practitioners in respect of matters where the parents claim has long since
become prescribed but not that of the child.
As a consequence, medical malpractice and particularly insurance in respect
thereof, will be placed under even further strain should the High Court recognise
the childs claim against the medical practitioner responsible for the
misdiagnosis.