While up to H v Fetal Assessment Centre 2015 2 SA 193 (CC) a child’s action for “wrongful life” – an inappropriate term which should be replaced by the action for “wrongful suffering through disability” – had been dismissed in our law by the high courts as well as the supreme court of appeal, the constitutional court has now held that the claim may potentially be found to exist. It will be the task of the high court to decide whether it does so exist, and in what form. The latter court must then decide, if the claim is properly formulated in delict, whether all the elements of a delict, namely conduct, harm, wrongfulness, negligence and causation, are present and that damages may consequently be awarded. This has to be done within the imperatives set by the Constitution with regard to the constitutional rights and values, of which the best interests of the child is paramount. Ultimately the court held that the delictual requirements have the potential to be applied to the present action. However, it is unfortunate that the court did not wish to express itself on whether non-patrimonial harm such as pain and suffering and loss of amenities of life may be compensated by the action.
We submit that the action for wrongful suffering through disability (wrongful life) should indeed be recognised within the sphere of the law of delict, as all the elements of a delict can comfortably be accommodated within the field of application of the action. Furthermore, damages for both patrimonial and non-patrimonial harm should be recoverable with the action.
Keywords: action for pain and suffering; action for wrongful life; Aquilian action; best interest of the child; causation; conduct; damage; damages; delict; dignity; disability; negligence; wrongfulness
Read the article in Afrikaans: Aksie weens onregmatige lyding vanweë gestremdheid (wrongful life) H v Fetal Assessment Centre 2015 2 SA 193 (KH)