The law of damages falls within the house of the law of obligations, with branches that stretch to private law. Law of damages is the side of law that investigates the existence of damages and the magnitude of the damage
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The law of damages falls within the house of the law of obligations, with branches that stretch to private law. Law of damages is the side of law that investigates the existence of damages and the magnitude of the damage in order to determine what the correct amounts would be payable to satisfy such damage in cases of delict, breach of contract etc.
The object of law of damages is to align just, logical and practical methods and rules of resolving cases of damages and determining the extent of damages and due satisfaction.
Wrongful birth claims in South African Law.
Wrongful birth claims are claims are defined in the Friedman v Glicksman that are usually brought by the parent(s) against the medical practitioners involved, whereby the parent(s) claim that, if they had been informed properly of any risks of birth defects on the child beforehand, they would have avoided conception altogether, or if already conceived, would have opted to use invoke their right to terminate the child in terms of the Choice on termination of pregnancy Act of 1996 , which provides, in section 2, that a woman may terminate a pregnancy if she so chooses, during the first 12 weeks of the gestation period of her pregnancy or from the 13th up to and including the 20th week of gestation in the event whereby a medical practitioner is of the opinion that there is a substantial risk that the fetus the mother is carrying would suffer from a severe physical or mental abnormality. This termination would only take place after consultation with the parent(s).
An example of the above where it is required that the parents are consulted regarding the state of the fetus can be seen in the Stewart v Botha case (Herein after called the Stewart case) which took place in 2008, in the Supreme court of appeal. Mrs Stewart (1st appellant) instituted a case against medical practitioners for special damages that are a direct result of her son being born with sever congenital defects, these are claims such as past and future medical costs, special schooling and maintenance. The awarding of such damages was not unheard of in our courts. Mr Stewart (2nd appellant) instituted at the same time, the same claims as per his wife, but instead on behalf of his son who was born with these defects and was a minor at the time. Mr Stewart contended that if the respondents, who were treating his wife at the time that she was pregnant, had informed them of the condition of the child, they would have terminated the pregnancy.
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