The applicant, a minor child born in 2008 with Down syndrome, instituted an action through his mother and natural guardian against the Fetal Assessment Centre. The claim alleged that the respondent negligently failed to warn the mother during pregnancy of a high risk that the child would be born with Down syndrome. It was alleged that, had she been properly informed, she would have elected to terminate the pregnancy in terms of South African law. The child claimed special damages for past and future medical expenses and general damages for disability and loss of amenities of life. The respondent raised an exception, contending that South African common law does not recognise a delictual claim by a child for being born with disabilities (so‑called ‘wrongful life’ claims). The Western Cape High Court upheld the exception and dismissed the claim, relying on the Supreme Court of Appeal decision in Stewart v Botha.
Leave to appeal was granted. The appeal succeeded with costs, including the costs of two counsel. The High Court’s order was set aside and replaced with an order granting the plaintiff leave to amend the particulars of claim within 14 days.
This case is significant for clarifying the constitutional approach to so‑called ‘wrongful life’ claims in South African law. While the Court did not finally recognise such a claim, it rejected a blanket exclusion of children’s claims and emphasised that common law development must be informed by constitutional values, including the best interests of the child. The judgment limits the reach of Stewart v Botha and confirms that complex and novel delictual claims involving constitutional rights should not ordinarily be decided on exception.