Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 45
The Constitutional Court in H v Fetal Assessment Centre 87 dealt with the question
of whether to allow a child to claim compensation for a life with disability
in ‘wrongful life’ cases. Under South African law, where prospective parents are
advised that their child will probably suffer from a serious medical condition
or congenital disability, the law allows the choice not to give birth to the child.
A claim is also recognised by the parents for recovery of patrimonial damages
in circumstances where that kind of medical advice should have been given to
them but was negligently not provided. Until now our law has, however, denied
the child any claim in those circumstances. In H v Fetal Assessment Centre, the
issue came before the Constitutional Court on direct appeal against the decision
of the High Court, which had dismissed the claim on exception, relying on the
judgment of Stewart v Botha. The Constitutional Court considered the question
of whether the legal position should change. The Court was of the view that
the material on record was insufficient for it to make a final determination on
whether the South African common law may possibly be developed to recognise
such an action. The Court, however, did not accept the respondent’s argument
that no amount of further evidence would cure the impossibility of any claim
of that kind, reiterating that our law, including our common law, must conform
to the values of the constitution. The particular values and rights most applicable
to the present case were those of equality, dignity and the right of children
to have their best interest considered of paramount importance in every matter
concerning them. In coming to this conclusion, the Court made extensive obiter
remarks on considerations which should be taken into account in future, which
will have strong persuasive value.
The leading case on the ‘wrongful’ or ‘diminished’ life action, for the moment,
remains Stewart v Botha, 88 although the reasoning of the Court is now open to
doubt.
4.13 Conduct: acts and omissions
Conduct is a general prerequisite for delictual liability. In order for liability to
result, one person must have caused harm to another by means of voluntary
conduct. Conduct may take the form of a positive act (a commissio) or an omission
(omissio). It is often difficult to draw a distinguishing line between conduct
of a positive nature and conduct by way of an omission. This is because many
‘omissions’ are simply indications of legally deficient positive conduct. Driving a
car through a stop street into another car is a course of positive conduct (driving
the car); the failure to stop indicates negligent positive conduct (culpa in faciendo).
It is submitted that in these circumstances one is not dealing with conduct by
omission, but negligent positive conduct. 89 Similarly, a medical practitioner who
87
2015 (2) SA 193 (CC).
88
See footnote 84 above.
89
Van Der Walt & Midgley Delict at 65–66; Neethling et al Law of Delict 6 ed (LexisNexis 2010)
at 30.