Case No. CCT 74/14, Western Cape Division, Cape Town, 24 April 2011
Hearing date: 28 August 2014
Judgment date: 11 December 2014
Majority author: Froneman J
Vote: Unanimous
By Duncan Wild on 11 December 2014
This is a case seeking to expand the South African common law to recognise a claim for “wrongful life”, or what the applicant calls “wrongful suffering”. Historically, such claim have arisen where a medical professional is alleged to have failed to inform parents that there is a high risk that a foetus may be born with abnormalities, and had the parents been informed, they not have permitted the foetus to be born. The applicant sought to cast the claim as one for “wrongful suffering”, seeking to emphasise that it is not claim with the basis that it would have been better for the child not be born, but that in failing to give the accurate information, the physician caused the suffering of the child once it was born. At present neither of these claims exist in South African law, and the applicant sought to have such a claim recognised.
The Constitutional Court did not recognise the claim for “wrongful life”, but indicated that there was the potential for such a claim in South African law, and so upheld the appeal against the High Court’s dismissal of the claim. The Constitutional Court, however, found that the parties had not put argument before it on how the constitutional protection for the rights a child impacted the claim, and that it would not develop the common law to recognise this claim without all the facts before it. Therefore, the Constitutional Court indicated that the applicant could amend their papers and reinstitute the case in the High Court which could then consider whether a valid claim existed and whether the applicant met the requirements for that claim.
Ms H, the applicant, was pregnant and respondent, Kingsbury Foetal Assessment Clinic (Pty) Ltd (now Fetal Assesment Centre) (“Kingsbury“) for a nuchal transluency scan of her foetus to assess the risk of the child being born with certain congenital conditions. The applicant claimed that Kingsbury’s representatives failed to interpret the scan correctly, and therefore failed to warn of the very high risk that the child would be born with Down Syndrome, and that if she been made aware of this she would have terminated the pregnancy.
The child was subsequently born with Down Syndrome and certain serious cardiac defects and other related complications. The applicant brought a claim on behalf of the child alleging that Kingsbury owed her a duty of care, in her capacity as a representative of the foetus, to inform her of the risk of the abnormalities. The applicant alleged the failure of Kingsbury to comply with its duty caused the child damages by depriving her of the opportunity to abort the foetus, and therefore causing the child to be born into a life of suffering. Kingsbury took an exception to this claim, which allows the court to assume that the facts alleged by the applicant are correct, and to simply assess whether there is a valid claim in law based on those assumed facts.
So, at this stage of the proceedings the applicant had not proved that Kingsbury in fact misinterpreted the scan or was negligent in doing so, but these are assumed to be true in order to assess the legal basis of the claim.
The High Court found that there was no basis for this type of claim in South African law and upheld the exception, dismissing the applicant’s case.
The applicant appealed directly to the Constitutional Court arguing that South African law should be developed to allow the claim for “wrongful suffering”, as it terms the claim, particularly in light of section 28 of the Constitution which enshrines children’s rights, primarily requiring courts to consider the best interests of the child, and the Children’s Act.
Kingsbury opposed the appeal on the basis that applicant should first appeal to the Supreme Court of Appeal, and that in any event Kingsbury did not owe the unborn foetus a legal duty. Kingsbury argues that for legal and moral reasons no such duty or claim should be recognised because it requires a court to compare the value never being born with the value of living with a disability, which it claims is not a comparison that should or can be made.
The Constitutional Court, in a unanimous judgment written by Justice Froneman and concurred in by Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Van der Westhuizen J, granted leave to appeal. The Court considered how various foreign jurisdictions dealt with the issue, as well as the potential implications for South African law in the claim was recognised, and found that the claim may potentially exist. The Court did not, however, say that such a claim does exist. It indicated that the parties had not addressed the impact of the constitutional imperative given to the bests of interests of a child in considering matters concerning children, and also that as the matter was only at an exception stage it did not have the full facts before it to enable it to take a decision on whether to recognise a claim in these circumstances.
As a result the Constitutional Court set aside the High Court’s dismissal of the claim, but granted the applicant the ability to amend her papers and to re-submit them to the High Court which would then reconsider the matter once it had the full facts.
Source: ConCourtBlog http://concourtblog.com/2014/12/11/h-v-kingsbury-foetal-assessment-clinic-pty-ltd/
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