H v Fetal Assessment Centre

The applicant is a boy born with Down syndrome in 2008. His mother instituted a claim on his behalf in the Western Cape High Court against the Fetal Assessment Centre for damages based on the alleged wrongful and negligent failure to warn the mother of the high risk of the child being born with Down syndrome. It was alleged that had she been warned, the mother would have chosen to undergo an abortion. The child claimed special damages for past and future medical expenses and general damages for disability and loss of amenities of life. The Centre excepted to the claim as being bad in law, not disclosing a cause of action recognized by South African law. The High Court upheld the exception and dismissed the claim with costs, relying on the Supreme Court of Appeal's decision in Stewart, which had held that the law should not recognize such "wrongful life" claims.

• Whether the common law of delict should be developed to recognize a child's claim for damages arising from negligent pre-natal misdiagnosis of congenital disability ('wrongful life' claim)
• Whether the exception procedure was appropriate for determining this issue
• Whether section 28(2) of the Constitution (child's best interests) must be considered in determining the viability of such a claim
• Whether the requirements of delict (harm, wrongfulness, causation, negligence and damages) can be satisfied in a 'wrongful life' claim
• Whether the duty imposed by the Constitution to develop the common law in accordance with the Bill of Rights requires reconsideration of the approach in Stewart

1. Leave to appeal is granted. 2. The appeal succeeds with costs, including the costs of two counsel. 3. The order of the High Court is set aside and replaced with: 'The plaintiff is granted leave to amend the particulars of claim within 14 days.'

1. The development of common law under section 39(2) of the Constitution requires that all law, including the law of delict, must be infused with constitutional values and promote the spirit, purport and objects of the Bill of Rights. 2. Section 28(2) of the Constitution, which provides that a child's best interests are of paramount importance in every matter concerning the child, must be considered in determining whether to recognize a child's claim for damages arising from negligent pre-natal misdiagnosis. 3. The wrongfulness enquiry in delict is explicitly normative and must be conducted within the constitutional framework, considering whether policy and legal convictions of the community, constitutionally understood, regard the harm-causing conduct as acceptable. 4. Where the factual situation is complex and the legal position uncertain, particularly involving development of the common law to recognize new rights, it is generally inappropriate to decide the matter on exception rather than after hearing all evidence. 5. A child's claim for patrimonial damages is potentially viable where: (a) a pre-natal misdiagnosis of a medical condition or congenital disability deprived the mother of informed choice to terminate the pregnancy, and (b) the parents do not exercise their own claim for those patrimonial damages. 6. The 'harm' in such cases can be understood as the financial burden imposed on the child where parents fail to claim, not the disability itself, and the medical expert's liability would not exceed what would have been owed to the parents. 7. This recognition does not open floodgates for claims by children against parents, as the claim is against the negligent medical practitioner and is predicated on proof that the mother would have chosen abortion if properly informed.

1. The term 'wrongful life' is unfortunate and wrong - the legal issue is not about 'wrongful life' but whether the law should allow a child to claim compensation for a life with disability. 2. Framing the issue as a logical paradox of comparing life with non-existence may inadvertently disguise a value choice that judges must acknowledge openly and defend squarely under the Constitution. 3. The comparative law survey demonstrates that whether countries recognize such claims often depends on contextual factors including: the country's stance on abortion, the emphasis placed on children's rights, and the type of legal system (particularly whether constitutional values have an 'irradiating effect' on private law). 4. For purposes of this judgment, reference to 'the child' means the child at the time of birth, consistent with the approach in Road Accident Fund v Mtati regarding pre-natal injuries. 5. The Court did not decide whether a child may claim compensation for intangible loss (pain and suffering, loss of amenities), as this involves the actio sui generis which requires bodily injury and was beyond what was necessary to determine. 6. The Court emphasized it was determining only that a child's claim may potentially exist - whether it actually exists and in what form must be decided by the High Court after proper pleadings and evidence. 7. When courts make decisions involving development of common law rules, they must be alert to the normative framework of the Constitution not only in cases of major development but in all cases where incremental development is in issue. 8. The exception procedure remains useful to 'weed out cases without legal merit' but should not be used where development of the common law requires consideration of complex facts and constitutional values.

This is a landmark judgment in South African law as it opens the door for recognition of 'wrongful life' claims by children born with disabilities following negligent pre-natal diagnosis. The judgment is significant for: (1) explicitly requiring that section 28(2) of the Constitution (child's best interests paramount) must be considered in delictual claims involving children; (2) demonstrating how constitutional values must permeate the common law of delict, particularly the wrongfulness enquiry; (3) providing extensive comparative law analysis on how different jurisdictions approach such claims; (4) clarifying when the exception procedure is inappropriate for developing the common law, particularly where complex factual and normative considerations are involved; (5) recognizing that harm in delict can extend beyond physical injury to patrimonial burden, particularly in the constitutional context; (6) establishing that the paradox of 'comparing life with non-existence' does not place the issue beyond legal determination, but rather requires an evaluative choice grounded in constitutional values. The judgment transforms the approach from one that refused to 'even ask' the question (Stewart) to one that requires engagement with constitutional rights and the best interests of children.