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LPL4802
LAW OF DAMAGES
UNISA
2021
ASSIGNMENT NUMBER 1
DUE DATE: 14 MAY 2021 (DATE
EXTENDED)
TOTAL: 25 MARKS
UNIQUE NUMBER: 758498
, Lebo, a female student at MNK Academy, in Johannesburg was born with a serious
deformity that impedes the free movement of her legs. She believes that her mother’s
obstetrician, Doctor X, ought to have diagnosed this prenatal ailment and advised her
mother accordingly. Her mother, Mrs T Vilakazi, confides in you that had she been
advised correctly, she would have terminated the pregnancy. Both these ladies
approach you in your capacity as an attorney and request that you file claims for
damages against Doctor X. Indicate to them fully, the possibilities of successfully
lodging a wrongful life and or a wrongful birth claims in terms of the South African law
of damages. Use relevant case law to support your argument.
Wrongful life claims pose difficult ethical, moral and social questions. The law, and
especially the law of delict, cannot shy away from these questions. While the law of
delict and specifically the element of unlawfulness have to reflect the legal convictions
of the community, at the same time one has to be mindful of the role it plays in
preventing limitless liability. In this context, wrongful life and wrongful birth are
juxtaposed, based on the recent judgment of the constitutional court in H v Fetal
Assessment Centre1. Even though this case was decided on exception, the court
reflects a positive attitude towards wrongful life claims, which in itself is a first in South
Africa. To date, the delictual elements of harm and wrongfulness provided a guard
against the successful instigation of wrongful life claims. This essay questions the
constitutional court’s approach and investigates the consequences that allowance of
these claims would entail for the law of delict specifically, but also for the broader
society.
Firstly, wrongful life claims are differentiated from wrongful birth claims. The last-
mentioned is a claim instituted by the parents of a child born with disabilities. The
1
H v Fetal Assessment Centre 2015 2 SA 193 (CC)
(WhatsApp Business): 084 591 8661
(F): 086 096 5452 www.llbexampacksandtutorials.co.za
__________________________________________________________________________________
LLB EXAM PACKS AND TUTORIALS
➢ Past paper solutions,
➢ notes,
➢ summaries,
➢ assignment packs &
➢ tuitions
LPL4802
LAW OF DAMAGES
UNISA
2021
ASSIGNMENT NUMBER 1
DUE DATE: 14 MAY 2021 (DATE
EXTENDED)
TOTAL: 25 MARKS
UNIQUE NUMBER: 758498
, Lebo, a female student at MNK Academy, in Johannesburg was born with a serious
deformity that impedes the free movement of her legs. She believes that her mother’s
obstetrician, Doctor X, ought to have diagnosed this prenatal ailment and advised her
mother accordingly. Her mother, Mrs T Vilakazi, confides in you that had she been
advised correctly, she would have terminated the pregnancy. Both these ladies
approach you in your capacity as an attorney and request that you file claims for
damages against Doctor X. Indicate to them fully, the possibilities of successfully
lodging a wrongful life and or a wrongful birth claims in terms of the South African law
of damages. Use relevant case law to support your argument.
Wrongful life claims pose difficult ethical, moral and social questions. The law, and
especially the law of delict, cannot shy away from these questions. While the law of
delict and specifically the element of unlawfulness have to reflect the legal convictions
of the community, at the same time one has to be mindful of the role it plays in
preventing limitless liability. In this context, wrongful life and wrongful birth are
juxtaposed, based on the recent judgment of the constitutional court in H v Fetal
Assessment Centre1. Even though this case was decided on exception, the court
reflects a positive attitude towards wrongful life claims, which in itself is a first in South
Africa. To date, the delictual elements of harm and wrongfulness provided a guard
against the successful instigation of wrongful life claims. This essay questions the
constitutional court’s approach and investigates the consequences that allowance of
these claims would entail for the law of delict specifically, but also for the broader
society.
Firstly, wrongful life claims are differentiated from wrongful birth claims. The last-
mentioned is a claim instituted by the parents of a child born with disabilities. The
1
H v Fetal Assessment Centre 2015 2 SA 193 (CC)
