H v Fetal Assessment Centre [2014] ZACC 34

H v Fetal Assessment Centre [2014] ZACC 34

Facts

Ms. H was pregnant when she went to the Fetal Assessment Centre (FAC) for a prenatal check-up. The FAC negligently failed to diagnose that Ms. H's unborn child had Down syndrome. Ms. H gave birth to a baby with Down syndrome, and she and her child sued the FAC for damages.

Issues

The main issues in the case were whether:

• Ms. H's child had a claim for wrongful life; and
• If so, whether the child's claim was barred by the principle of ex turpi causa non oritur actio (i.e., an action does not arise from a wrongful cause).

Reasons

The Constitutional Court held that:

• Ms. H's child did have a claim for wrongful life; and
• The child's claim was not barred by the principle of ex turpi causa non oritur actio.

Wrongful life

The court held that a child born with a disability as a result of prenatal negligence has a claim for wrongful life against the negligent party. The court reasoned that the child has a right to be born healthy, and that a breach of that right gives rise to a claim for damages.

Ex turpi causa non oritur actio

The court held that the principle of ex turpi causa non oritur actio does not bar a child's claim for wrongful life against a negligent medical professional. The court reasoned that the child is not responsible for the negligence of the medical professional, and that it would be unfair to deprive the child of compensation simply because the medical professional was negligent.

Conclusion

The court allowed the child's claim for wrongful life and remitted the matter to the High Court to determine the quantum of damages.

Summary

The case of H v Fetal Assessment Centre is a landmark case in South African law. It is the first case in which the Constitutional Court has considered the issue of wrongful life.

The court's decision that a child born with a disability as a result of prenatal negligence has a claim for wrongful life is a significant victory for the rights of children with disabilities. The decision means that children with disabilities will now be able to claim compensation from negligent medical professionals for the losses they have suffered.

The court's decision that the principle of ex turpi causa non oritur actio does not bar a child's claim for wrongful life is also significant. The decision means that children with disabilities will not be deprived of compensation simply because the medical professional who negligently caused their disability was engaged in wrongful conduct.

The decision in H v Fetal Assessment Centre is likely to have a lasting impact on the law of delict in South Africa. The court's broad interpretation of the law of delict and its willingness to recognize new rights of action is likely to lead to changes in other areas of law.