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March 04, 2015

‘Wrongful life’ claim for child born with medical condition

This claim was brought on behalf of a child with Down’s syndrome for damages flowing from the doctor’s failure to inform the child’s pregnant mother of the high risk of it being born with this condition. The Constitutional Court had to determine whether the common law could be developed to recognise such a claim. H v Fetal Assessment Centre 2015 (2) SA 193 (CC).

This is a summary of what the court found:

Our common law at present does not recognise a child’s delictual claim for damages arising from a negligent pre-natal misdiagnosis in relation to congenital medical conditions or disabilities.  For most people the birth of a child and life itself are causes for celebration.  But that does not mean that the reality of being born into a life with disability should be ignored by the law...The child’s claim has been dubbed here and internationally as one for “wrongful life”.  It has been pointed out that this term is unfortunate and wrong.  And indeed it is.  The legal issue is not the “wrongful life” of the child, but whether the law should allow a child to claim compensation for a life with disability… When a medical expert negligently fails to inform the mother that her child will be born with a congenital disability, this deprives the mother of the opportunity to make an informed choice to terminate the pregnancy.  If the child is then born with a congenital disability and the parents suffer patrimonial loss in the form of an unwanted financial burden in maintaining the child, our law recognises that the mother or parents have a claim in delict against the medical expert.  Recognising a child’s claim asks us to take a step further.  What is the position if, for some reason, the mother or parents fail to make that claim against the negligent medical practitioner?

It must be emphasised that all this judgment determines is that a child’s claim may potentially be found to exist.  Whether it does so exist and in what form, needs to be decided by the High Court.  The High Court must still determine, if the claim is properly reformulated in delict, whether harm, wrongfulness, negligence, causation and damages have been established.  All this judgment lays down is that this must be done within our constitutional imperative that the decision must accord with constitutional rights and values, which must include considering the best interests of the child.  This also applies to any other manner in which the claim may be reformulated.

March 03, 2015

You can cancel an agreement via the exchange of emails

Cancellation of contract using electronic signature
In Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another 2015 (2) SA 118 (SCA) (check out the reported judgment here) the Supreme Court of Appeal had to consider an appeal that concerned a series of emails purporting to consensually cancel written agreements between the parties.

The agreements required any ‘consensual cancellation’ to be in writing and signed by them. The Electronic Communications and Transactions Act 25 of 2002 (the Act) gives legal recognition to transactions concluded electronically by email. The dispute between the parties requires us to consider whether their exchange of emails met the writing and signature requirements of the Act thereby constituting a consensual cancellation.

A non-variation clause provided for the cancellation and alterations of a contract to be in writing and signed. In issue was whether the typewritten names of the parties at the foot of an email [cancelling the agreement] constituted valid signatures in the circumstances. Electronic Communications and Transactions Act 25 of 2002 (the Act).
The court found that:

The Act describes an electronic signature – which is not to be confused with an advanced electronic signature – as ‘data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature’. Put simply, so long as the ‘data’ in an email is intended by the user to serve as a signature and is logically connected with other data in the email the requirement for an electronic signature is satisfied. This description accords with the practical and non-formalistic way the courts have treated the signature requirement at common law.

On that basis, the court found that the exchange of emails did meet the writing and signature requirements of the Act, thereby constituting a consensual cancellation.