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DELICT LIABILITY FOR FAILURE TO DETECT CONGENITAL DEFECTS

A rather tragic and sad case very recently came before the Supreme Court of Appeal for adjudication. As our practice deals fundamentally with cases of personal injury, this case and its ultimate findings are of interest and concern to us.

It is the case of Stewart v Botha (340/2007) [2008] ZASCA 84 Mrs S gave birth to a child Brian in August 1993. Brian was born with severe congenital defects. These included a defect of the lower spine which adversely affects the nerve supply to the bowel, bladder and lower limbs as well as a defect of the brain. Mrs S brought an action against her General Practitioner and her specialist obstetrician and gynaecologist.

She claimed that during her pregnancy, these defects ought to have been detected and brought to her attention so that she could have taken an informed decision as to whether or not she should have terminated her pregnancy. As a result of the negligence and wrongfulness of the medical practitioners as set out above, she claimed special damages in the form of relating to the maintenance, special schooling, past and future medical expenses consequent upon her son’s condition. Mr S, Brian's father, also brought suit in the same action in his capacity as Brian's natural and legal guardian for the same damages.

The Basis of Mr S's claim as pleaded was that had the abnormalities been detected during Mrs S's pregnancy and drawn to their attention, the pregnancy would have been terminated and Brian would not have been born. Consequently these damages and expenses would not have been incurred, had Brian not been born.

The two medical practitioners noted and exception to the claim of Mr S. The First Defendant particularly as there is no duty on him to ensure that Brian was not born and that if such a duty was imposed on him it would be would be against public policy. The second Defendant alleged in his exception that the Mr S’s claim is ‘bad in lawand against public policy’. Thus the exceptions disputed that there was any wrongfulness on their part in not detecting the abnormalities during the pregnancy and in them not drawing them to the attention of Mrs S.

Snyders AJA (who wrote the judgment and with whom Steicher Nugent Heher and Cachalia JJA concurred) by reference to decided cases on the issue first of all traced back how one determines wrongfulness as an element. She referred to the case of
Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at 468

The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject, is, as the Dutch author Asser points out, that everyone has to bear the loss he or she suffers. The Afrikaans aphorism is that “skade rus waar dit val”. Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss. But the fact that an act is negligent does not make it wrongful although foreseeability of damage may be a factor in establishing whether or not a particular act was wrongful. To elevate negligence to the determining factor confuses wrongfulness with negligence and leads to the absorption of the English law tort of negligence into our law, thereby distorting it.

 When dealing with the negligent causation of pure economic loss it is well to remember that the act or omission is not prima facie wrongful (“unlawful” is the synonym and is less of a euphemism) and that more is needed. Policy considerations must dictate that the plaintiff should be entitled to be recompensed by the defendant for the loss suffered (and not the converse as Goldstone J once implied unless it is a case of prima facie wrongfulness, such as where the loss was due to damage caused to the person or property of the plaintiff.) In other words, conduct is wrongful if public policy considerations demand that in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant."

The enquiry as to negligence and wrongfulness is a separate exercise and these terms, cautions the Learned Acting Judge of Appeal must not be confused. Although a negligent act is prima facie wrongful, the liability for a negligent omission or for a negligent act causing economic loss, the wrongfulness element depends on the existence of a legal duty not to act negligently. In the case of Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) at 144
it was held that "The imposition of such a legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms."

There have been some cases where it was held that liability for pure economic loss existed where public policy caters for such an existence. However Snyders AJA alerted the Court to the fact that no precedent existed for facts similar to the one now presented to the Court. Therefore what was required in this case was for the Court to consider not only what was in the interests of the Parties in this case, but the conflicting interests of the community must be weighed up and a balance must be struck in accordance with what the Court sees to be what Society expectations of justice are. The existence of our Constitution and its provisions do provide our Courts with a useful and helpful guideline.

The Learned Acting Judge of Appeal did refer to the cases of
Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W)

In which the action of a child to recover damages for an injury done to it whilst in utero was recognised and upheld The claim by parents, against a hospital that agreed and failed to perform a surgical tubal ligation in order to render the mother sterile, for the cost of maintaining and supporting a child that was born afterwards, was granted in

Administrator, Natal v Edouard 1990 (3) SA 581 (A).
However, in the case of
Friedman vs Glicksman 1996 (1) SA 1134 (W)
The claim by the child on the same ground as in the present case was refused on public policy considerations.

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