LAW OF DAMAGES – LPL 4802 ASSIGNMENT 1 SEMESTER 1
FOR 2021.
QUESTION 1
The possibilities of successfully lodging a wrongful life and or wrongful birth claims in
terms of South African law of Damages is given below. The relevant case laws will be
used to support my argument. Wrongful life claims is where the parents of the disabled
child sue the medical practitioner on behalf of the disabled child for damages as a result
of the disabled child’s birth. The child becomes the plaintiff, as opposed to his or her
parents. The child argues that had it not been for the insufficient advice provided by the
medical practitioner, the child would not have had to endure the pain and suffering
related to his or her disability, as the mother would have terminated the pregnancy.
Furthermore, Wrongful birth claims is where the parents sue the medical practitioner on
their own behalf for damages as a result of the medical practitioner failing to properly
diagnose the defects or advise the parents of the potential birth defects of a child,
resulting in the birth of an unwanted, disabled child. According to Visser & Potgieter
(2012),1 the parents allege that had they been properly informed they would have
terminated the pregnancy. The medical practitioner is then sued for damages relating to
the maintenance of the child. Currently, South African law only recognises actions for
wrongful pregnancy and wrongful birth suits. Wrongful life is not a recognised claim and
is seen to be a controversial point for our courts still to decide upon. However, in this
essay I will not discuss about wrongful pregnancy because it is not a prerequisite of the
question.
The case of Stewart and another v Botha and another,2 which was decided in the
Supreme Court of Appeal, set a precedent in South African law regarding wrongful life
suits. Mrs Stewart consulted her general medical practitioner and gynaecologist while
1
Visser & Potgieter (2012), law of damages: Third edition, Juta, Capetown, South Africa.
2
Stewart and another v Botha and another 2008 (6) SA 310 (SCA).
FOR 2021.
QUESTION 1
The possibilities of successfully lodging a wrongful life and or wrongful birth claims in
terms of South African law of Damages is given below. The relevant case laws will be
used to support my argument. Wrongful life claims is where the parents of the disabled
child sue the medical practitioner on behalf of the disabled child for damages as a result
of the disabled child’s birth. The child becomes the plaintiff, as opposed to his or her
parents. The child argues that had it not been for the insufficient advice provided by the
medical practitioner, the child would not have had to endure the pain and suffering
related to his or her disability, as the mother would have terminated the pregnancy.
Furthermore, Wrongful birth claims is where the parents sue the medical practitioner on
their own behalf for damages as a result of the medical practitioner failing to properly
diagnose the defects or advise the parents of the potential birth defects of a child,
resulting in the birth of an unwanted, disabled child. According to Visser & Potgieter
(2012),1 the parents allege that had they been properly informed they would have
terminated the pregnancy. The medical practitioner is then sued for damages relating to
the maintenance of the child. Currently, South African law only recognises actions for
wrongful pregnancy and wrongful birth suits. Wrongful life is not a recognised claim and
is seen to be a controversial point for our courts still to decide upon. However, in this
essay I will not discuss about wrongful pregnancy because it is not a prerequisite of the
question.
The case of Stewart and another v Botha and another,2 which was decided in the
Supreme Court of Appeal, set a precedent in South African law regarding wrongful life
suits. Mrs Stewart consulted her general medical practitioner and gynaecologist while
1
Visser & Potgieter (2012), law of damages: Third edition, Juta, Capetown, South Africa.
2
Stewart and another v Botha and another 2008 (6) SA 310 (SCA).
