Case No. CCT 74 / 2014
In the matter between:
C J H Applicant (on behalf of her minor son, M P H)
and
THE KINGSBURY FOETAL ASSESSMENT
CENTRE (PTY) LTD Respondent
RESPONDENT’S PRACTICE NOTE
1. The Nature of the Proceedings
1.1 During the course of the applicant’s pregnancy, the respondent had carried out a fetal ultrasound scan in order to perform a risk determination in respect of the possibility of the fetus having Down syndrome.
1.2 Post-natally, the applicant’s minor son, M, was diagnosed as having Down syndrome.
1.3 Acting in her capacity as representative of her handicapped minor son, the applicant instituted a wrongful life action against the respondent in the Court a quo.
1.4 The respondent excepted to the applicant’s claim.
1.5 The Court a quo (Baartman J) upheld the exception and dismissed the action.
1.6 This opposed application is for leave to appeal directly to this Court against the aforesaid judgement of the Court a quo.
2. Issues to be Argued
2.1 Whether the applicant should be granted leave to appeal directly to this Court.
2.2 Whether the respondent’s exception was correctly upheld.
2.3 Whether claims for wrongful life are recognised under our law.
2.4 Whether the common law of delict ought to be developed so as to permit the applicant’s present claim for wrongful life.
3. Relevant Portions of the Record
In the opinion of the respondent, the following portions of the record are necessary for the determination of the matter:
3.1 The Particulars of Claim;
3.2 The Notice of Exception; and
3.3 The judgement of the Court a quo.
4. Estimated Duration of Oral Argument
Three hours.
5. Summary of Argument
Application for leave to Appeal Directly to this Court
5.1 It is submitted that the applicant’s application for leave to appeal to this Court should be refused in that the applicant has not made out a case in terms of established criteria for the granting of leave to appeal directly to this Court.
5.2 Particular regard being had to the far-reaching legal and other implications of the relief sought by the applicant, it would be appropriate and manifestly in the interests of justice for the normal appeal process not to be excluded.
5.3 As such, inter alia, the Supreme Court of Appeal should be afforded the opportunity of considering and pronouncing upon this matter before it serves before this Court.
5.4 The applicant has not made out a case in terms of which she has a reasonable prospect of success on appeal to this Court.
Application for Leave to Appeal
5.5 In any event, the applicant has not made out a case for being granted leave to appeal.
5.6 With particular reference to the judgement of the Supreme Court of Appeal in the case of Stewart v Botha (6) SA 310 (SCA), it constitutes established and binding law that claims for wrongful life (such as the present action of the applicant) are not permitted under the law.
5.7 As such, the exception was correctly upheld by the Court a quo.
5.8 The applicant has not made out a case that she has a reasonable prospect of success on appeal and, as such, the present application for leave to appeal should be dismissed.
Merits of Appeal
5.9 Inter alia in the light of the judgement in the Supreme Court of Appeal in the Stewart case, the claim for wrongful life of the applicant stands to be dismissed as the law presently stands.
5.10 In the particulars of claim the applicant did not plead or pray that the common law of delict should be developed in order to permit and accommodate such claims.
5.11 However, in so far as the applicant has submitted in argument that the common law of delict should be so developed, it is submitted that she has failed to make out a case for such a far- reaching extension of the common law of delict.
5.12 Upon a proper consideration of the following elements, aspects and topics, it is clear that a case for the development of the common law of delict so as to permit claims for wrongful life cannot be sustained or made out:
5.12.1 The element of wrongfulness;
5.12.2 The question of a legal duty of care towards a fetus;
5.12.3 The concept of the sanctity of life;
5.12.4 The determination of damages; and
5.12.5 Judgements of South African and foreign law courts.
5.13 The particulars of claim do not allege that the respondent owed a duty of care to the applicant’s unborn fetus; and, as such, the exception stands to be dismissed on this ground alone.
5.14 In any event, in terms of our law, a duty of care towards an unborn fetus of the nature required in order to sustain a claim for wrongful life does not exist.
6. Authorities
The respondent places particular reliance on the highlighted authorities, as listed and referenced in the accompanying list of authorities.
SIGNED AT CAPE TOWN ON THE 7th DAY OF JULY 2014.
__________________
S. F. Burger SC
__________________
G. E. van der Spuy
