LAW OF DAMAGES (LPL4802)
ASSIGNMENT 1 SOLUTIONS
SEMESTER 2, 2023
BMSA TUTORS
PASS GURANTEED
, QUESTION 1 (4 ANSWERS PROVIDED)
Wrongful life claims are distinguishable from wrongful birth claims, wrongful life
claims refers to claims for pain and suffering by children who are born with
disabilities as a result of the doctor’s negligence of failing to inform the child’s
parents of the possibility that the child could be born with such disability.
A child may not claim damages for being allowed to be born with an abnormality or
disability, such a claim is referred to as a wrongful life claim. A wrongful life claim is
not allowed in our law as confirmed in Steward v Botha 2008 (6) SA 310 (SCA).
1
In the Steward case , it was argued that if a doctor had not failed to inform the
parents of the risk of birth defects to the potential child, the child would not have
been born at all to experience the pain and suffering attributed to his disability
because the mother would have chosen to terminate the pregnancy. The SCA held
that the claim on behalf of the child did not disclose a cause of action mainly
because there was no duty on the doctor to ensure that the child was not born.
Neethling & Potgieter Delict 69 n 208 criticize the judgment as follows: ‘In our opinion
the conduct of a doctor who (negligently) causes a child to be born with serious
disabilities should be regarded as wrongful. Although the doctor did not cause the
defects by positive conduct, it is clear that his omission caused a child to be born with
deformities. To weigh the child’s existence and non-existence against each other is
irrelevant. In our opinion it is undoubtedly in the child’s best interest to have access to
the best possible medical treatment for his condition. Therefore, the boni mores require
that the doctor’s conduct be regarded as wrongful and that he should be delictually
liable. Justice demands that a child should not face a life of pain, suffering and financial
2
need that could have been prevented by a doctor’s positive conduct.
In order to succeed with any claim for damages the general elements to prove are a
reduction, as a result of a damage causing event, which affects either patrimonial or
non-patrimonial interest which is subject of the reduction of someone’s legally
recognised needs, and such reduction must have occurred at the time of trial as well
1
Steward v Botha 2008 (6) SA 310 (SCA).
2
Law of Damages 31 (footnote 35).
.
ASSIGNMENT 1 SOLUTIONS
SEMESTER 2, 2023
BMSA TUTORS
PASS GURANTEED
, QUESTION 1 (4 ANSWERS PROVIDED)
Wrongful life claims are distinguishable from wrongful birth claims, wrongful life
claims refers to claims for pain and suffering by children who are born with
disabilities as a result of the doctor’s negligence of failing to inform the child’s
parents of the possibility that the child could be born with such disability.
A child may not claim damages for being allowed to be born with an abnormality or
disability, such a claim is referred to as a wrongful life claim. A wrongful life claim is
not allowed in our law as confirmed in Steward v Botha 2008 (6) SA 310 (SCA).
1
In the Steward case , it was argued that if a doctor had not failed to inform the
parents of the risk of birth defects to the potential child, the child would not have
been born at all to experience the pain and suffering attributed to his disability
because the mother would have chosen to terminate the pregnancy. The SCA held
that the claim on behalf of the child did not disclose a cause of action mainly
because there was no duty on the doctor to ensure that the child was not born.
Neethling & Potgieter Delict 69 n 208 criticize the judgment as follows: ‘In our opinion
the conduct of a doctor who (negligently) causes a child to be born with serious
disabilities should be regarded as wrongful. Although the doctor did not cause the
defects by positive conduct, it is clear that his omission caused a child to be born with
deformities. To weigh the child’s existence and non-existence against each other is
irrelevant. In our opinion it is undoubtedly in the child’s best interest to have access to
the best possible medical treatment for his condition. Therefore, the boni mores require
that the doctor’s conduct be regarded as wrongful and that he should be delictually
liable. Justice demands that a child should not face a life of pain, suffering and financial
2
need that could have been prevented by a doctor’s positive conduct.
In order to succeed with any claim for damages the general elements to prove are a
reduction, as a result of a damage causing event, which affects either patrimonial or
non-patrimonial interest which is subject of the reduction of someone’s legally
recognised needs, and such reduction must have occurred at the time of trial as well
1
Steward v Botha 2008 (6) SA 310 (SCA).
2
Law of Damages 31 (footnote 35).
.
