LPL4802
Assignment 1
Semester 2
2023
(Multiple answers Provided)
,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).
In the Steward case1, 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 need that could have been
prevented by a doctor’s positive conduct.2
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
Semester 2
2023
(Multiple answers Provided)
,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).
In the Steward case1, 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 need that could have been
prevented by a doctor’s positive conduct.2
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).
