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REPORTABLE
IN THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE NO : 262 / 97
In the matter
between
DR H. MUKHEIBER
Appellant
and
SANDI RAATH
First Respondent
ANDRE RAATH
Second Respondent
CORAM Smalberger, Olivier, Streicher
JJA, Melunsky , Madlanga AJJA
DATE OF HEARING 7 May 1999
DATE OF JUDGMENT 28 May 1999
A negligent
misrepresentation was made by a medical practitioner to a married couple
that he had sterilised the wife, when in fact no sterilisation had been done.
The couple,
acting on such misrepresentation desisted from contraceptive
measures, and a child was conceived and born. The couple is entitled
to damages
under the heads of confinement costs and maintenance of the
child
_________________________________________________________________________________
JUDGMENT
_________________________________________________________________________________
OLIVIER JA
JUDGMENT
OLIVIER
JA
[1] Since the middle of the 1960's actions for
‘wrongful conception’ (an action for damages brought by the parents
of a normal,
healthy child born as a result of a failed sterilisation or
abortion performed by a medical doctor), ‘wrongful birth’
(an action
brought by the parents on similar grounds but where the child is born
handicapped) and ‘wrongful life’ (an
action brought by a deformed
child, who was born as a result of a negligent diagnosis or other act by a
doctor) have troubled courts
in England, the USA, Canada and Germany. In South
Africa it was for the first time given judicial attention in the High Court in
Edouard v Administrator, Natal 1989 (2) SA 368 (D) and by this
Court in Administrator, Natal v Edouard 1990 (3) SA 581 (A). The
Edouard case was a claim for ‘wrongful conception’
and was based on breach of contract.
[2] The appeal before us is a
novel one. It does not fit neatly into the scheme described above. It is a
claim based squarely on delict,
more particularly on negligent
misrepresentation. It is alleged by the parents that the doctor negligently
misrepresented to them
that the wife had been sterilised, when in fact no
sterilisation was done at all. Relying on such representation, they failed to
take contraceptive measures. A child was conceived and born as a healthy,
normal boy. The claim is aimed at compensation under
two heads of pure economic
loss, viz.confinement costs and maintenance of the child until it becomes
self-supporting.
[3] In the trial court, the question of the
doctor’s liability was separated from the quantification of the claim.
The trial court
found on the facts that it had not been proved on a balance of
probabilities that the defendant, Dr Mukheiber, had made the alleged
misrepresentation. The plaintiffs, Mr and Mrs Raath, appealed to the Full Court
of the Cape of Good Hope Provincial Division of
the High Court. The appeal was
upheld and the order of the trial court was substituted with one declaring Dr
Mukheiber to be liable
to compensate Mr and Mrs Raath under the two heads of
damages mentioned above, the precise quantification of the damages to be
proceeded
with in due course before the trial court. With special leave of this
Court, Dr Mukheiber appeals against the judgment of the Full
Court.
The
cause of action
[4] The legal matrix in which the plaintiffs’
claim is to be placed and judged, is that of negligent misrepresentation which
causes
pure economic loss, i.e.as opposed to physical injury to person or
property, and not made in a contractual context.
Such a claim is recognised
in our law as one of the instances of the application of the extended actio
legis Aquiliae. This was established by this Court in Administrateur,
Natal v Trust Bank van Afrika Bpk1979 (3) SA 824 (A)
at 831 B - 833
C. That decision by this Court introduced an innovation. It was realised at
the time that the scope and application
of the innovation would have to be
carefully controlled. But - as was predicted in that case - it is now clear
that the said action
has a useful role to play in our law.
[5] This
action was again affirmed in Siman and Co (Pty) Ltd v Barclays National
Bank Ltd 1984 (2) SA 888 (A) at 904 D - G, again in Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA
475 (A) at 498 D - E and more recently in Bayer South Africa (Pty) Ltd v
Frost 1991 (4) SA 559 (A) at 568 B - D.
[6] Reflecting the
general principles and requirements of Aquilian liability in our law, the
action now under discussion is available
to a plaintiff who can establish :
(i) that the defendant, or someone for whom the defendant is vicariously liable, made a misstatement (whether by commissio or ommissio) to the plaintiff;
(ii) that in making the misstatement the person concerned acted unlawfully;
(iii) that such person acted negligently;
(iv) that the plaintiff suffered loss;
(v) that the said damage was
caused by the misstatement; and
(vi) that the damages claimed represent proper compensation for such loss. (See Bayer at 568 B - D for a statement of these requirements.)
[7] In all the cases cited
above this Court cautioned against the danger of limitless liability produced by
the application of the extended
Aquilian action. That danger is ever present,
particularly where a medical practioner runs the risk of having in effect to
maintain
the child of his patient without having any real control over the
vicissitudes that attend the child’s upbringing. In order
to keep the
cause of action within reasonable bounds, each and every element of the delict
should be properly tested and applied.
This includes, according to Corbett CJ
in Bayer at 568 D :
... the duty of the Court (a) to decide
whether on the particular facts of the case there rested on the defendant a
legal duty not
to make a misstatement to the plaintiff (or, to put it the other
way, whether the making of the statement was in breach of this duty
and,
therefore, unlawful) and whether the defendant in the light of all the
circumstances exercised reasonable care to ascertain
the correctness of his
statement; and (b) to give proper attention to the nature of the misstatement
and the interpretation thereof,
and to the question of causation.
The danger of limitless liability in particular as far as negligent
misrepresentation as a cause of action is
concerned can be averted if careful consideration is given to the dictates of
public policy,
keeping in mind that public policy can easily become an unruly
horse.
[8] I will deal with the factual and legal disputes in the
appeal before us in the matrix of the cause of action, set out above, and
in the
same manner as was done in Bayer.
(A) The representation (statement)
[9] This
factual issue was hotly contested. On this issue, the trial court and the Full
Court came to different conclusions. A careful
re-examination of the question
whether the representation that Mrs Raath had been sterilised had in fact been
made, is therefore
called for.
It is common cause that Mr and Mrs Raath are
married out of community of property and both are estate agents. Mrs Raath has
given
birth to four children :
a son, Zane, who was born in 1986 and who died when he was 5 years years old;
a son, T., born in 1988;
a daughter, T., born in 1993; and
a son, J.,
born in 1994.
The birth of J. gave rise to the present
claim.
[10] Dr Mukheiber is a gynaecologist who has been practising as
such
for more than 30 years. A doctor-patient relationship existed between
him and Mrs Raath from before T.’s birth, attended to
by Dr Mukheiber and
done by way of caesarian section in 1988. In 1992, Mrs Raath became pregnant
with T.. Dr Mukheiber once again
was chosen by the prospective parents to
attend to the pre-natal treatment of Mrs Raath. She visited him a number of
times in the
ordinary course of her confinement.
[11] On 28 January
1993, Mrs Raath again visited Dr Mukheiber on a routine ante-natal
gynaecological visit. During the course of that
visit it was decided that she
would give birth to the child she was then carrying by elective caesarian
section on 8 February 1993,
which was to be done by Dr Mukheiber. During the
course of the same consultation, she informed him that she did not wish to fall
pregnant again and the question of sterilisation was raised. Dr Mukheiber
informed her that he required her to discuss the matter
with her husband and to
tell him at their next consultation what they had decided. Mr and Mrs Raath had
previously discussed the
prospect of her sterilisation but not, as they
described it, “ ...in depth ...”. They did not, on the
evening of 28 January 1993, discuss the issue of sterilisation. However, during
the early hours of 29 January
1993 Mrs Raath went into spontaneous labour and,
at approximately 6.30 am, Dr Mukheiber delivered her of a healthy daughter (T.)
by emergency caesarian section. The following day Dr Mukheiber visited Mrs
Raath in hospital and on Monday, 1 February 1993, she
was discharged from
hospital.
[12] It is common cause that at no stage was it agreed that
Dr Mukheiber would perform a sterilisation procedure. The prescribed forms
required by the hospital where Mrs Raath gave birth to T. that permit a doctor
to perform a sterilisation had not been completed.
The pathological examination
which Dr Mukheiber always insisted upon after he had done a tubal ligation had
not been requested or
done. He had, in fact, not performed a sterilisation on
Mrs Raath, and his patient’s card and records did not reflect such
an
operation at all, although meticulously correct in all other
respects.
[13] So far so good. The cause of the unhappiness of the
Raaths and the alleged cause of action arose on 4 February 1993, when Mrs Raath,
accompanied by her husband, visited Dr Mukheiber’s consulting rooms and
surgery at approximately 13:00 to have the sutures,
inserted during the
caesarian section, removed.
The plaintiffs’ version is that, having
removed the sutures, Dr Mukheiber called Mr Raath, who was in the waiting room,
into
the surgery to show to him how neatly the operation had been done.
According to them, Dr Mukheiber then told them that he had performed
a
sterilisation on Mrs Raath, that she was now a “sports model”, and
that they did not need to worry about contraception.
[14] Dr Mukheiber
disputes this version. He cannot remember having removed Mrs Raath’s
sutures, but concedes that he must have done
so. However he denies that he
ever made the alleged misstatement. His denial was articulated as follows :
I don’t think I made a mistake [i.e. the alleged
misrepresentation] for the following reasons : it was very soon after the
caesarian section, six days, and I remember the procedure very, very clearly.
The second thing that was uppermost in my mind would have been the fact that
when I phoned the Libertas Hospital [just before the emergency caesarian]
I asked the sister to please inquire from Mrs Raath if she wants to be
sterilised. If she wants to be sterilised, get consent from
her and her
husband. And the third thing is that I would have had my clinical notes in
front of me as well as a pathological report,
and if I’d seen a
pathological report then I would have known that she’d had a
sterilisation. But if there was no pathological
report I cannot possibly see
how I could have made that mistake.
[15] During August 1993
Mrs Raath telephoned Dr Mukheiber and informed him that she was not feeling well
and that her menstrual periods
had stopped. Her evidence is that she asked him
whether it was possible to fall pregnant after a sterilisation, and that he
replied
that it was highly unlikely and that, in more than 30 years of practice,
he had never had a sterilisation that had gone wrong because
he cuts, ties and
cauterises the Fallopian tubes. According to her he said that she was probably
overworked and that it was more
likely that her hormones had not yet settled
down after the sterilisation.
Dr Mukheiber admitted in evidence to a
telephonic conversation with Mrs Raath in August 1993. According to him she
asked him whether
a person who had been sterilised could possibly fall pregnant,
to which he replied that it was highly unlikely but that anything
was possible.
He denied that she accused him of doing a sterilisation on her :
...
otherwise I would have panicked and got my notes to see what procedure actually
had been done. The impression I got was she was
only asking me an opinion and
the thought went through my mind that she may have had a tubal ligation done by
a colleague, because
there was now a six months interval between seeing her and
the phone call.
He denied having told her that, in performing a
sterilisation, he also cauterises the Fallopian tubes - that is not his
practice.
He also denied having told her that he had never had a failed
sterilisation, because, in fact, he had had two such failures. He
also denied
telling her that it was likely that her hormones had not yet settled down,
because a tubal ligation would not affect
the hormonal balance at
all.
[16] On 21 September 1993 Mrs Raath visited a general
practitioner, Dr Andrea Steinberg, who diagnosed that she was 12 weeks pregnant.
Mrs Raath testified that she was devastated and burst into tears, because they
did not want to have more children. Dr Steinberg
(who was not available to
testify) telephoned Dr Mukheiber and the latter then spoke to Mrs Raath over
the telephone. According
to her, he said that he was “ ... absolutely
flabbergasted ...” to learn that she was pregnant, because he cuts,
ties and cauterises the tubes and that there must be some technical problem. He
requested her to come and see him the following day in his surgery.
Dr
Mukheiber recalled the telephonic conversation with Dr Steinberg. He testified
that it was put to him that he had sterilised
Mrs Raath and that she was now
three months pregnant. He testified that this was the first time that he had
been accused of having
performed a sterilisation on Mrs Raath. His evidence is
that he said to Dr Steinberg that he did not have his clinical notes with
him,
but that he would check his notes the following morning, which he did. He also
telephoned the records department of the Libertas
Hospital and ascertained that
only a caesarian section had been performed and no
sterilisation.
[17] Mrs Raath testified that she visited Dr Mukheiber
the next day, i.e.
22 September 1993. Her evidence is that he called
her into his surgery and told her that he had not done a sterilisation on her.
She replied that he had told her that he had done a sterilisation, whereupon, in
her words, he said :
... he knows he told me, he was mistaken but he was
too lazy to check his records at that time. He said that he felt morally
responsible
about what had happened, and asked me what I wanted him to do about
it.
After Mrs Raath, according to her evidence, explained to him
that they had no medical aid assistance, Dr Mukheiber undertook not
to charge
her for the future ante-natal care and caesarian section itself, but stated
that she would have to pay the hospital fees.
Dr Mukheiber recalled this
consultation with Mrs Raath. He flatly denied that he told her that he had made
the alleged misrepresentation
or that he had made a mistake and had been too
lazy to consult his notes. He admitted not having charged Mrs Raath for the
consultation,
but denied that it indicated guilt; according to him he did so
for compassionate reasons. He conceded that it is possible that
for
compassionate reasons he also undertook to attend to the prenatal care and the
delivery free of charge.
[18] Mrs Raath did not use Dr
Mukheiber’s professional services after this date. The very next day her
husband consulted an attorney
who wrote a letter to Dr Mukheiber on 28 September
1993, containing the following allegation :
I confirm that in or about
January 1993 you advised Mrs Raath that you had carried out a sterilisation
operation on her and that it
would be impossible for her to fall pregnant and
that she need not continue the use of contraceptives ... The purpose of this
letter is to place on record the fact that my client holds you liable for the
damages which she has and will sustain as a result
of the incorrect information
and advice which you gave to her.
In a replying letter, dated 5 October 1993, Dr Mukheiber stated inter
alia that “post-operatively the
question of bilateral tubal ligation was never
mentioned.”
[19] Mr Raath also testified. He supported his
wife’s version of the events of 4 February 1993 in Dr Mukheiber’s
surgery.
[20] The trial court absolved the defendant, Dr Mukheiber,
from the instance with costs. The crux of the decision was formulated as
follows:
It follows from the aforegoing that I find myself in the
unenviable position of not being able to decide the probabilities on either
side. I cannot find that the general probabilities favour Plaintiffs’
case more than Defendant’s, or vice versa. As far as the
credibility of the witnesses is concerned, I cannot fault the evidence of either
side to the extent that I would reject
their evidence as being untrue. In the
result, I am unable to find that Plaintiffs have discharged the onus upon them
of establishing
that Defendant made the alleged misrepresentation that he had
sterilised First Plaintiff.
[21] The Full Court of the Cape High Court reversed the trial court’s
judgment. Accepting that Mrs Raath bona
fide believed that a sterilisation had been performed on her by Dr Mukheiber
(which belief was never questioned during the trial), the
Full Court found it
inconceivable that such belief might have been due to some delusion or confusion
of which no suggestion whatsoever
was made during her cross-examination. The
court found it “ ... highly improbable ..” that anyone other
than Dr Mukheiber, or any actual or imaginary incident or circumstance not
suggested or referred to in evidence,
might have conjured up the firm belief in
her mind that she had been sterilised. The probabilities rather favour the
inference that
Dr Mukheiber must have sown the seed in the minds of the Raaths
that they could discontinue contraceptive practices.
[22] I am not
inclined to doubt or to reject the trial court’s finding as to the
credibility of the three dramatis personae. I agree, however, that the
probabilities favour the case of the Raaths, for the following reasons :
(i) It was never even suggested that there had been a conspiracy between the Raaths falsely to accuse Dr Mukheiber of making the alleged misrepresentation. It must be accepted that they both believed Mrs Raath to have been sterilised and consequently dispensed with contraception, notwithstanding their earnest desire not to have more children. Their belief must have stemmed from something that occurred between them and Dr Mukheiber subsequent to the birth of T. at the end of January 1993. The version of the Raaths as to what occurred in Dr Mukheiber’s surgery on 4 February 1993 is consistent with such a belief and rings true.
(ii) Dr
Mukheiber’s offer on 22 September 1993 not to charge any fees for the
future pre-natal care of and caesarian
section on Mrs Raath (that the offer had
been made, I accept as a fact) is significant. Mrs Raath’s evidence that
the offer
was made immediately after Dr Mukheiber had admitted his mistake (the
false representation) and having made the excuse that he was,
on 4 February
1993, too lazy to consult his notes, is much more natural and probable than his
denial of an admission and excuse
as set out above, and that he had made the
offer merely out of compassion.
(iii) It is significant that on
the day after Dr Mukheiber had made the admission described above, Mr Raath
consulted
an attorney and gave instructions to institute the present action,
referring to the very misstatement which forms the cause of action.
The very
form of the letter, beginning with the statement that it is being placed on
record, substantiates Mrs Raath’s version
that Dr Mukheiber admitted the
misrepresentation.
(iv) I find it significant that the evidence of Mr Raath that he had only visited Dr Mukheiber’s surgery once, on 4 February 1993, and his accurate description of the arrangement of the furniture and desk inside the surgery, was not contested. There is very little basis for rejecting as false his corroboration of his wife’s evidence of what had happened in the surgery on that occasion.
(v) I also emphasise that Dr Mukheiber conceded that the words and expressions which the Raaths allege he used in his surgery on 4 February 1993 were exactly the words and expressions that he would have used had he wished to convey to a patient that she had been sterilised.
(vi) Finally, the circumstances on 4 February 1993 under which Dr Mukheiber is
alleged to have made the misrepresentation
are significant. He was in a hurry
to leave his surgery and to proceed to a hospital where he had to perform an
operation at 13:30.
The Raaths arrived at approximately 13:00. According to
them Dr Mukheiber’s receptionist had already left for her lunch
break. It
seems natural and probable that Dr Mukheiber removed the sutures, a procedure
which would have taken but a few minutes,
and that he did not consult his notes,
which would have been in the receptionist’s office. Mrs Raath’s
version that
Dr Mukheiber later admitted that he had made the mistake because he
was too lazy to consult his notes, has a ring of truth about
it.
[23] For these reasons, I am of the view that, on a balance of
probabilities, it has been proved that Dr Mukheiber did make alleged
representation.
(B) Falsity of the representation
[24] Mrs Raath was not sterilised by Dr Mukheiber when he performed the caesarian section on her on 29 January 1993. The representation by him that he had done so was false.
(C) Unlawfulness
[25] There are different ways in
which the unlawfulness of a misrepresentation can be approached. Common to all
approaches is the fundamental
principle that tortious liability is founded not
upon the act performed by the defendant, but upon the
consequences of that act (Viscount Simonds in Overseas
Tankship (U.K.) Ltd v Morts Dock and Engineering Co. Ltd
[1961] 1 All ER 404 (PC) (“Wagon Mound No 1") at 415 A:
“But there can be no liability until the damage has been done. It is
not the act but the consequences on which tortious liability is
founded. Just as (as it has been said) that there is no such thing as
negligence in the air, so there
is no such thing as liability in the air.”
(My emphasis) See also Boberg, The Law of Delict, vol 1,
1984, 31). Further, common to all approaches is that unlawfulness, in the
relevant sense, is to be found in the violation
of the rights of the person
suffering damage as a consequence of the act complained of, and that whether or
not there was a violation
of a right of the claimant (or the converse, a
dereliction of a duty by the defendant) depends on a number of consideration,
including
in the final instance, public policy (Suid-Afrikaanse
Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 403 A;
Schultz v Butt 1986 (3) SA 667 (A) at 679 A - F;
Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 121 G
- 122 F; Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 596
G - 597 H).
[26] The South African legal position relating to the
unlawfulness of a misrepresentation was admirably encapsulated by Corbett CJ in
an article entitled “Aspects of the Role of Policy in the Evaluation of
our Common Law” in 104 SA Law Journal 1987, 52 at 59. It bears
full quotation :
Thus the key to liability is the existence of a legal duty on the part of the defendant, that is, the person making the statement, not to make a misstatement to the plaintiff, that is, the person claiming to have been damnified by the statement. For without this legal duty there can be no unlawfulness. And unlawfulness is a sine qua non of Aquilian liability. The legal duty is, however, not an absolute one. It simply requires the defendant to take reasonable care to ensure the correctness of his statement before making it. This requirement of a legal duty, together with the nature of the misstatement and its interpretation, and the question of causation, enables the courts to keep within bounds the potentially unruly concept of liability for economic loss caused by a negligent misstatement.
In deciding to give its imprimatur to this cause of action, the Appellate Division unquestionably took a policy decision of paramount importance in the law of delict. Moreover, as in the case of liability for an omission, the general test adopted for determining wrongfulness or unlawfulness poses the question whether in all the circumstances of the case there was a legal duty to act reasonably. The application of this test in each individual case, where there is no clear precedent, entails the making of a further policy decision, or value judgment. Here the law must keep in step with the attitudes of society and consider whether on the particular facts society would require the imposition of liability. Factors which would no doubt influence the court in coming to a conclusion would be whether the extent of the potential loss incurred is finite and identifiable with a particular claimant or claimants; whether the misstatement relates to a field of knowledge in which the defendant possesses or professes skill; whether the misstatement was made in a business or professional context or merely casually or in a social context, whether the loss suffered was a reasonably foreseeable consequence of the misstatement; and so on.”
Whether there is such a duty,
depends on the circumstances of each case (see King v Dykes
1971 (3) SA 540 (RA) at 546 A - E).
[27] It seems to me that in
the context of misrepresentation one must ask the question : was there in the
particular circumstances an
invasion of the rights of the claimant as a
consequence of the misrepresentation? Conversely, was there a legal duty upon
the defendant
before making the representation, to take reasonable steps to
ensure that it was correct (Bayer at 574 I -
J)?
[28] The following circumstances, in the case before us, indicate
that there was such a duty :
(i) The relationship between Mrs Raath (and her husband) and Dr Mukheiber and the nature of his duties towards them amounted, in my view, to a special duty on his part to be careful and accurate in everything that he did and said pertaining to such relationship.
(ii) The representation was not only objectively material, carrying the real,
objective risk of the conception and birth
of an unwanted child; the
representation was also subjectively material : the dangers of a false
representation of the kind under
discussion should have been obvious to the mind
of a gynaecologist in the position of Dr Mukheiber.
(iii) It is
plain that the misrepresentation induced the Raaths not to take contraceptive
care.
(iv) It must have been obvious to a person in Dr
Mukheiber’s position that the Raaths would place reliance on what
he told
them, that the correctness of the representation was of vital importance to
them, and that if it were incorrect they could
suffer serious damage.
(v) The representation related to technical matters concerning a surgical
procedure about which the Raaths as lay people would
necessarily be ignorant and
Dr Mukheiber would, or should be, knowledgeable.
[29] A failure on a
doctor’s part to take reasonable steps to desist from making the sort of
representations now under discussion
unless and until he has taken all
reasonable steps to ensure the accuracy of the representation would, in my view,
render the misrepresentation
unlawful.
[30] Are there, in the present
case and its unique circumstances, special considerations of public policy which
would deny the plaintiffs
their claim? Is there, for example, significance in
the fact that the misrepresentation gave rise to the birth of a normal and
healthy
child? Or is there significance in Mrs Raath’s motive for wishing
to be sterilised?
To these and similar questions of public policy I will
return presently. I proceed to examine the other elements of the alleged
delict
committed by Dr Mukheiber.
(D) Negligence
[31] In our law, the standard of
conduct expected from all members of society is that of the bonus
paterfamilias, i.e. the reasonable man or woman in the position of
the defendant. An act which falls short of this standard and which causes
damage
unlawfully is described as negligent; i.e. it is tainted with
culpa.
The test for culpa can, in the light of the development of
our law since Kruger v Coetzee 1966 (2) SA 428 (A) be stated as
follows (see Boberg, Law of Delict, 390) :
For the purposes of liability culpa arises if -
(a) a reasonable person in the position of the defendant -
(i) would have foreseen harm of the general kind that actually occurred;
(ii) would have
foreseen the general kind of causal sequence by which that harm occurred;
(iii) would have taken steps to guard against it, and
(b) the defendant failed to take those steps.
[32] In the case of an expert, such as a
surgeon, the standard is higher than that of the ordinary lay person, and the
court must consider
the general level of skill and diligence possessed and
exercised at the time by the members of the branch of the profession to which
the practitioner belongs (Van Wyk v Lewis 1924 AD 438 at
444).
[33] Dr Mukheiber did not dispute that, if it was found that he
had made the representation under discussion, his action was negligent.
Applying the tests set out above, it is clear that Dr Mukheiber should
reasonably have foreseen the possibility of his representation
causing damage to
the Raaths, and should have taken reasonable steps to guard against such
occurrence, and that he failed to take
such steps.
(e) Causation
[34] The next enquiry (still
following the Bayer sequence) then relates to causation.
On this issue, our law is not as clear as it should be. As far as factual
causation is concerned, this Court follows the condictio sine qua non
- or “but for” - test (Minister of Police v
Skosana 1977 (1) SA 311 (A) at 34 F - 35 G).
[35] Once
factual causation has been established, however, the question of limiting the
defendant’s liability for the factual consequences
of his or her conduct
arises. It is here that views differ radically. There are two main schools of
approach amongst our academic
writers and in the case law.
[36] The
“relative view” (see Boberg, The Law of Delict, 381) proposes that
one should
... see both wrongfulness and culpability, not in abstracto, but as relative to the actual consequences in issue. The question is not whether the defendant’s conduct was wrongful and culpable, but whether the harm for which the plaintiff sues was caused wrongfully and culpably by the defendant. Wrongfulness is determined by applying the criterion of objective reasonableness ex post facto to the actual harm and the manner of its occurrence; culpability is satisfied only where the defendant intended or ought reasonably to have foreseen and guarded against harm of the kind that actually occurred. Having thus accorded the requirements of wrongfulness and fault an active role in the limitation of liability, those who adopt this approach have no need to postulate a further requirement that the plaintiff’s damage be not ‘too remote’. Their finding that the defendant acted wrongfully and culpably in causing the harm actually complained of inherently also confines his liability within acceptable limits. And the policy considerations that must ultimately determine what limits of liability are acceptable receive due judicial recognition when the discretionary ‘objective reasonableness’ test of wrongfulness and the flexible ‘foreseeable kind of harm’ test of negligence are applied.
[37] The other
view
... is that limitation is best achieved by postulating a further requirement for liability, namely that the plaintiff’s damage must not be ‘too remote’. Also called ‘legal causation’, remoteness may be determined in various ways. Some favour the ‘direct consequences’ test, some the ‘foreseeability’ test, some the ‘adequate cause’ test and some a composite solution. Common to all, however, is the premiss that culpability is an ‘abstract’ attribute of conduct unrelated to its actual consequences, and so having no function in limiting liability for those consequences, which is the province of ‘legal causation’. The traditionalists therefore approach the issue of remoteness already armed with a wrongful and negligent act that has in fact caused harm, and proceed to enquire whether the causal connection is sufficient - according to the test that each favours - to found legal liability.” (Boberg, The Law of Delict, 381)
[38] In general our courts have in
the past on occasions followed the first-mentioned, relative, approach. Among
others Boberg (The Law of Delict, 382) has pleaded for a rejection of the
second approach on the grounds that
the need to have recourse to remoteness is a self-imposed burden of those who refuse to see that negligence, being a failure to act as a reasonable man would have done in particular circumstances, cannot be divorced from those circumstances and therefore contains all the ingredients for the effective limitation of liability.
[39] Nevertheless, this
Court has applied the test of so-called legal causation in recent times on more
than one occasion, and Counsel
for Dr Mukheiber has relied on these cases for
his argument that the damages now claimed by the Raaths, or part of it, are too
remote
and should either be refused in toto or limited. The cases are
Minister of Police v Skosana, supra, at 34 (Corbett JA, majority
judgment); International Shipping Co (Pty) Ltd v Bentley 1990 (1)
SA 680 (A) at 702 et seq (Corbett CJ); Smit v Abrahams
1994 (4) SA 1 (A) at 14 A et seq (Botha JA); Standard Chartered
Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 764 I et seq
(Corbett CJ); Groenewald v Groenewald 1998 (2) SA 1106 (A) at
1113 C - J in respect of intentional acts.
[40] What appears from the
‘legal causation’ cases is that public policy plays a role,
even a decisive role, in limiting liability. On the other hand, in the relative
approach, public policy plays the
very same role in establishing which
consequences of an act are to be regarded as wrongful, thus creating and at the
same time limiting
liability.
[41] The two approaches differ in
methodology and approach, but not in substance. If properly applied, they would
generally give the same
legal result in each case. What is clear in the
present case is that the element of factual causation, the ‘but
for” test, is not in issue : but for Dr Mukheiber’s
misrepresentation, the Raaths would have taken contraceptive
measures, and the
child, J., would probably not have been conceived and born.
[42] What
remains in dispute is whether public policy excludes or limits the
liability of Dr Mukheiber in the present case.
[43] The role and ambit
of public policy in a claim by the father of a normal and healthy child
conceived and born after an unsuccessful
tubal ligation performed on his wife,
the mother of the child, against the doctor was considered by this Court in
Edouard. The action was based on breach of contract. Damages
were claimed for (a) the cost of supporting and maintaining the child up to
the
age of 18 years and (b) for the discomfort, pain, suffering and loss of
amenities of life suffered by the mother. This Court
disallowed claim (b) on
the basis that in our law general damages of the type claimed under this head
are not recoverable in a breach
of contract action. Claim (a) was
upheld.
[44] In upholding claim (a), this Court undertook an extensive
review of overseas cases and legal literature dealing with claims for
‘wrongful
conception’, ‘wrongful birth’ and
‘wrongful life’ in the context of public policy. Van Heerden JA,
with whose judgment the other four judges concurred, found (at 589 F - G) that
the majority of the objections against the said type
of claims are based on no
more than two basic themes pertaining to public policy, viz
(i) that the birth of a normal and healthy child cannot be treated as a wrong against his parents, and (ii) that as a matter of law the birth of such a child is such a blessed event that the benefits flowing from parenthood as a matter of law cancel or outweigh the financial burden brought about by the obligation to maintain the child. Thus it has been suggested in somewhat florid language that the birth of a healthy child is an occasion for the popping of champagne corks rather than for the preferring of a claim for damages.
As far as objection (ii) is
concerned, Van Heerden JA held that it is simply not the position in our law
that benefits of a non-pecuniary
nature can be subtracted from patrimonial loss
(at 590 A - E).
Van Heerden JA dismissed objection (i) with equal
decisiveness:
... the ‘wrong’ consists not of the unwanted birth as such, but of the prior breach of contract (or delict) which led to the birth of the child and the consequent financial loss. Put somewhat differently, the Bundesgerichtshof has succinctly said that, although an unwanted birth cannot as such constitute a ‘legal loss’ (i.e. a loss recognised by law), the burden of the parents’ obligation to maintain the child is indeed a legal loss for which damages may be recovered. (at 590 E - G)
Van Heerden JA quoted, with approval,
dicta from the dissenting opinion of Clark J in Cockrum v
Baumgartner 447 NE 2d 385 (1983) at 392 - 3; the dissenting opinion of
Cadena J in Terrell v Garcia 496 SW 2d 124 (1973) at 131 and the
judgment in Jones v Malinowski 473 A 2d 429 (1984) at
435.
[45] But are the policy considerations underlying the decision of
this Court in
Edouard also applicable to the dispute now
before us? There are differences which cannot simply be glossed
over.
[46] The first and obvious is that while Edouard
dealt with contractual liability, we are faced with a delictual claim.
In
Edouard Van Heerden JA, (590 F) in dealing with the nature of the
wrong complained of, indicated that the wrong consists of the prior breach
of
contract or delict which led to the birth of the child and the consequent
financial loss. I consider this approach of the law
to be correct. There can
be but one test for wrongfulness, based as it is ultimately on considerations of
public policy, and whether
the claim is brought in contract or delict. It is
well recognised today that a contract between a patient and a doctor imposes on
the latter a duty to exercise due care and skill; but even in the absence of a
contract between them there is a duty of care on
the doctor (see the remarks in
Lillicrap, Wassenaar and Partners v Pilkington Brothers supra at
499 A - I). The duty of care in either case seems inevitably to be measurable
by the same yardstick and I am of the view that
the same policy considerations
that underlie the Edouard judgment are applicable in the appeal
now under consideration. These considerations do not stand in the way of
allowing the Raath’s
action.
[47] Secondly, there is the
question of the underlying motive of the mother (and the father) for not wanting
a child to be conceived and
born.
In Edouard the court a
quo (reported as Edouard v Administrator, Natal 1989 (2) SA
368 (D) ) where the claim was of contractual nature, Thirion J at 375 I came to
the conclusion that
... an agreement for a sterilisation operation to be performed on a married woman with her husband’s consent where the reason for the operation is the prevention of the birth of a child whom they would be unable to support, is valid.
In dealing with the arguments
pro and contra the recognition of an action for damages based on
breach of contract in respect of wrongful birth, Thirion J limited himself to
claims
of parents in a wrongful birth action for damages in respect of the
expense which the parents will have to incur in connection with
the maintenance
of the child born, as a result of the breach of contract to perform the
sterilisation operation
... and where the reason for their seeking sterilisation was the couple’s inability to maintain the child. Different considerations might well apply where the consideration influencing the decision to have the operation was not an economic one. (My emphasis)
When the appeal in Edouard
was adjudicated in this Court, Van Heerden JA also concluded his remarks by
stating that his finding (that the claim was admissible)
was intended to
pertain
... only to a case where, as here, a sterilisation procedure was performed for socio-economic reasons. As pointed out by Thirion J [in the court a quo] different considerations may apply where sterilisation was sought for some other reason. (at 593 D - E, my emphasis)
[48] I see no reason for
limiting claims such as those under discussion to requests made only by married
couples (what of the spinster
or widow who needs the operation for preventative
medical reasons?) or where the husband has given his consent (is a woman not in
control of her own body?) or where the request is made for socio-economic
reasons only (which may be the worst reason : what if
it is requested for
reasons of health - the father or mother is HIV positive - or there is a
genetic defect in the family, etc?).
[49] In the present case
the Raaths did not wish to have any more children for socio-economic and other
family reasons. These are socially
acceptable reasons, and it does not lie in
the mouth of Dr Mukheiber to say that he is not liable because the Raath’s
reasons
for not wanting a child were not legitimate or contra bonos mores
(see also Goldblatt J in Friedman v Glicksman 1996 (1) SA 1134 (W)
at 1139 I - 1140 B).
[50] A third problem in the type of case now
under consideration is the fear of imposing too heavy a burden on the doctor.
In contract,
the doctor can contract out of liability. While generally it is
not impossible or contra bonos mores to contract out of delictual
liability, it is difficult to see how it could realistically have been done in
the present case. The
response to the fear expressed above must rather be that
professional people must not act negligently. In casu, they should not
make unsolicited misrepresentations. (See also Bruce Cleaver,
‘Wrongful Birth’ - dawning of a new action 108 South African
Law Journal 1991:47 at 66).
[51] A fourth problem is this : how far is
Dr Mukheiber’s liability to go? As far as the confinement cost is
concerned, there can
be no defence : such costs were reasonably foreseeable and
there is no reason to limit them. The problem arises in connection with
the
maintenance claim. The cost of maintaining the child J. is a direct consequence
of the misrepresentation. It was foreseeable
by a gynaecologist in Dr
Mukheiber’s position. In principle he is, by virtue of considerations of
public policy, not protected
against such a claim, as pointed out above. But
the claim cannot be unlimited. His liability can be no greater than that which
rests on the parents to maintain the child according to their means and station
in life, and lapses when the child is reasonably
able to support itself.
[52] In the result I am of the view that considerations of public policy do not
militate against holding Dr Mukheiber liable for
compensating the Raaths for the damages claimed by them.
[53] Finally,
an unrelated matter has to be addressed. Shortly before the date allocated for
the hearing of this appeal, application was
made by Dr Mukheiber to have the
case re-opened and to have further evidence received. The further evidence
relates to an alleged
act of dishonesty on the part of the Raaths during the
pre-trial procedures. In a letter by their attorney, it was stated that they
do
not operate a banking account. From subsequent enquiries it appears that this
information was wrong, also that their income was
higher than that furnished to
Dr Mukheiber’s attorney. The object of the application was to prove that
the sterilisation
was not necessary or required for socio-economic reasons
(shades of Edouard) and that the Raaths were untruthful. This
application, in turn, led to an application, on behalf of the Raaths, to strike
out
the proposed further evidence on the basis that it related to information
furnished during the course of settlement negotiations
and was thus
inadmissible.
[54] In the light of my view that socio-economic reasons
are not the only criterion for deciding the legitimacy of the wish not to have
further children and conversely that it is not the only criterion for
establishing the wrongfulness of Dr Mukheiber’s misrepresentation,
the
first consideration for the introduction of the new evidence falls away. As far
as credibility is concerned, this is not a proper
case for exercising our
discretion to re-open the case. There may be many explanations for the apparent
contradictory facts. But
even if the information relating to the bank accounts
was wrong, I cannot see how that would affect the factual findings to which
I
have come, based as they are on the probabilities. It follows that the
application to receive further evidence must fail. There
is consequently no
need to consider the application to strike out. As the latter application was
a direct consequence of the former
it would in my view be both appropriate and
fair that the costs awarded against the appellant in respect of the failed
application
to receive further evidence should include the costs of the
application to strike out.
[55] The following orders are made
:
1 The appeal is dismissed with costs.
2 The application for the re-opening of the case by the Appellant and the application for condonation in that connection are dismissed with costs,
such costs to include the costs of the Respondents’ application to strike out.
_______________________
P.J.J. OLIVIER
JA
CONCURRING :
SMALBERGER JA
STREICHER
JA
MELUNSKY AJA
MADLANGA AJA
SAFLII:
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