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LL Case No 5/1989

IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between:
ADMINISTRATOR OF NATAL Appellant

and
MERVYN GREGORY EDOUARD Respondent

CORAM: JOUBERT, VAN HEERDEN, MILNE JJA

NICHOLAS et GOLDSTONE AJJA

HEARD: 7 MAY 1990

DELIVERED: 30 MAY 1990

JUDGMENT VAN HEERDEN JA:
2. The issues
Arising from the birth of his fourth child, Nicole, the respondent instituted an action for damages against the appellant in the Durban and Coast Local t Division. The appellant was cited in his capacity as
head of the Natal Provincial Administration ("the

Administration"). The respondent sued in "his capacity

as husband of, and as the administrator of the joint
estate of himself" and his wife, Andrae. Damages were
claimed under three different heads, only two of which
are still relevant; viz, i) the cost of maintenance of
Nicole from the date of her birth to the age of 18
years, and ii) damages for discomfort, pain and

suffering and loss of amenities of life, suffered by
Andrae in conseguence of her pregnancy and the

subsequent birth of Nicole.

After the close of pleadings the parties

agreed upon a written statement of facts and submitted

a special case, in terms of Rule 33(1), for the
3. adjudication of the court. The salient facts set out in the special case, as later amplified, may be summarised as follows:
1) In August 1982 Andrae, duly assisted by the respondent, concluded an agreement with the
Administration. In terms thereof the Administration
agreed to cause a surgical tubular ligation of Andrae's fallopian tubes to be carried out. This surgery,

intended to render Andrae sterile, was to be performed
at the time of the birth of Andrae's third child which

she was then expecting.
2) Andrae gave birth to her third child
in September 1982 but in breach of its obligation the
Administration failed to cause the above surgery to be
performed.

3)	In consequence of the breach of contract Ahdrae again fell pregnant during January 1983. This led to Nicole's birth some 9 months later.

4) Andrae's pregnancy and Nicole's birth;

4. Andrae's discomfort etc in consequence thereof, and the fact that the respondent and Andrae became obliged to support Nicole all flowed as direct and natural consequences of the breach of contract, and were within the contemplation of the parties at the time of the conclusion of the agreement, as likely consequences of such breach.
5) To the knowledge of the Administration
Andrae concluded the contract because the respondent
and Andrae could not afford to support any more
children.
6) The respondent and Andrae would not
have agreed to Nicole being given out for adoption.
The two issues submitted to the court for adjudication were whether the Administration was in law obliged, because of its breach of contract, to pay i) a sum representing the cost to the respondent and Andrae of maintaining and supporting Nicole, and ii) general damages for the non-patrimonial loss suffered by
5. Andrae. It was agreed that, should the court find for the respondent on the first issue, an amount of R22 500 was to be awarded, and that an affirmative finding on the second issue would carry an award of R2 500.
In the court a quo Thirion J concluded that the claim for maintenance and support of Nicole was well-founded, but held that in our law a breach of contract does not give rise to a claim for non-
patrimonial ("intangible") damages. In consequence he
gave judgment for R22 500 on the first issue but disallowed the claim for the agreed amount of R2 500. (The decision has been reported: 1989 (2) SA 386 (D).) With the necessary leave the appellant now appeals against the award of R22 500, whilst the respondent cross-appeals against the disallowance of the claim for R2 500. The Appeal

Introductory
The guestion whether child-raising

6.

expenditure may be claimed when unwanted conception ensues because of breach of contract or the commission of a delict, has not arisen in any previous South African case. The question is, however, by no means novel. For it has led to conflicting decisions in the municipal law of various foreign jurisdictions. The respondent's claim under consideration is unique only in the sense that it is based upon a complete failure to perform a sterilization operation. In the wealth of foreign case law of which I am aware, the plaintiff's action was invariably based upon a failed sterilization procedure (including a vasectomy), or a failure to warn that the procedure might not be 100% successful or that its effect might be reversible, and, on occasion, the incorrect dispensing of a prescription for birth-control pills. It stands to reason, however, that in principle the precise nature of the breach of contract or neglect giving rise to the birth of an unwanted child, is immaterial. Thus it can
7. make no difference whether the breach of contract consists of a complete failure to carry out the agreed procedure, or of an ineffective surgical intervention.
An action for recovery of the expenditure of maintaining a child conceived as a result of inter alia a breach of contract, has been designated an action for wrongful birth, or wrongful conception, or wrongful pregnancy, or unplanned or unwanted birth. None of these designations is entirely apposite. Moreover, such an action may encompass various claims. For convenience I shall, however, refer to a claim for child-raising (or child-rearing) expenditure merely as a pregnancy claim.
In those foreign cases in which a pregnancy claim was disallowed, the courts relied heavily upon considerations of public policy, and, sometimes, also on considerations of convenience or expediency. Those considerations made so strong an appeal to the courts concerned that the idea of medical malpractice giving

8.

rise to an obligation to pay for, or contribute to,
the maintenance of a healthy child, was at times
rejected in rather emotive language. Thus it has been
said:¹

"Personally, I find this approach to a matter of this kind which deals with human life, the happiness of the child, the effect upon its thinking, upon its mind when it realizes that there has been a case of this kind, that it is an unwanted mistake, and that its rearing is being paid for by someone other than its parents, is just simply grotesque."

And:²

"[T]here is something inherently distasteful about a holding that a child is not worth what it costs to raise it, and something seemingly unjust about imposing the entire cost of raising the child on the physician, creating in the words of one court a new category of surrogate parent.'"
In England a pregnancy action was disallowed
1. Doiron v Orr, 86 D L R 3d 719 at 722-723 (Ontario High Court of Justice).
2. Hartke v McKelway, 526 F Supp. 97, 104 (D D C 1981).

9. in Udale's case. But in a case decided in the next year (1984), Thake and Another v Maurice, Peter Pain J took the opposite view and allowed inter alia a claim for child-rearing expenses. When Thake went on appeal this part of the judgment of Peter Pain J was not questionea in the Court of Appeal. The reason was that that court had in the meantime given judgment in Emeh v Kensington and Chelsea and Westminster Area Health Authority. In this case a failed sterilization operation had led to the birth of a child which was congenitally abnormal. It was held that there was no rule of public policy which prevented the plaintiff from recovering her expenditure incurred and to be incurred in maintaining the child, regardless of

3. Udale v Bloomsbury Area Health Authority, (1983) 2 All ER 522.

4.	(1985) 2 WLR 215; (1984) 2 All ER 513.

5. Thake and Another v Maurice, (1986) 1 All ER 497 (CA).

6.	(1984) 3 All ER 1044 (CA).

10.

whether the child was healthy or abnormal.

The decision in Emeh has not met with

universal acclaim in England. In a later unreported
case Ognall J observed that, speaking personally, he
was surprised

"that the law acknowledges an entitlement in a mother to claim damages for the blessing of a healthy child."

He also said that:

"those who are afflicted with a handicapped
child or who long desperately to have a child at all and are denied that good fortune would regard an award for this sort of contingency
with a measure of astonishment."

The first case in the United States which held that a pregnancy claim was well-founded, was Custodio v Bauer. The decision of the California

7. Per Slade LJ at 1053-4, and per Purchas LJ at 1056.
8. Jones v Berkshire Health Authority, cited by Symmons, Policy Pactors in Actions for Wrongful Birth, 50 Modern Law Review 269, 277.

9.	27 ALR 3d 884 (1967).

11.

Court of Appeal in that case opened the flood gates and since 1967 numerous pregnancy claims have come before the courts. Useful summaries of the relevant
case law are to be found in judgments delivered in the

last decade^.10 It appears that according to the

majority view (in some 20 jurisdictions)

considerations of policy and convenience preclude the

recognition of a pregnancy claim^;11 that in a few

jurisdictions full recovery of child-raising costs are

allowed^,12 and that courts in five states have

adopted an in-between approach, viz, that the

10. See, e g, Smith v Gore, 728 SW 2d 738; Weintraub v Brown 470 NYS 2d 634 (1983); Kingsbury v Smith, 442 A 2d 1003 (1982), and Byrd v Wesley Medical Centre, 699 P 2d 459 (1985).
11. See, e g, Wilbur v Kerr, 628 SW 2d 568 (1982); Coleman v Garrison, 327 A 2d 757 (1974): White v United States, 510 F Supp 146 (1981); and O'Toole v Greenberq, 477 NE 2d 445 (1985).
12. See Custodio, supra, and Smith, supra, at pp 742-3.

12. the benefits accruing to a plaintiff from the birth of an unwanted child must be set off against the said costs.
In a substantial number of cases in which a prégnancy claim was disallowed, forceful dissents were filed. In the dissenting judgments the in—between approach was adopted. It is, however, not always clear whether the courts or judges favouring that approach were of the view that there should be a set off of only
patrimonial advantages, or also of intangible benefits

such as the joy of parenthood.¹⁴

In the cases referred to above the unwanted

child was born normal and healthy, and this fact was
emphasised in the jurisdictions which disallowed a

13. See, e g, Ochs v Borrelli, 445 A 2d 883
(1982); Troppi v Scarf, 187 NW 2d 511 (1971),
and Jones v Malinowski, 473 A 2d 429 (1984).
14. Cf the dissent of Ferren, Associate Judge, in
Flowers v District of Columbia, 478 A 2d 1073
(1984) at 1080-1 and that of Dudley J in
Wilbur v Kerr, 628 SW 2d 568 (1982) at 571-2.

13.

pregnancy action. In a few cases, however, the action was denied even where the child was abnormal in.the sense that it suffered from sóme or other defect.

In Canada a pregnancy claim was disallowed by

the Ontario High Court of Justice^.16 According to

Garrett J¹⁷ the Alberta Supreme Court in Culp v

Ringrost had already held that it would be against
public policy to award damages for the birth of an
unwanted child. However, it would appear that in a
later Canadian case it was held that the birth of an
eleventh and healthy child was "not such a blessed
event that the concept of public order denies

recovery."¹⁸

Following upon a number of conflicting

decisions of lower courts the German Bundesgerichtshof

15.	See, e g, Berman v Allan, 404 A 2d 8.
16.	Doiron v Orr, 86 DLR (3d) 719.

17. At p 723.

18. Catefou v Moreau, (1978) 7 CCLT 241, cited by
Giesen, International Medical Malpractice
Law, p 244.

14. in a series of cases heard in the 1980's held that in a

pregnancy action the cost of maintenance of an unwanted child may be recovered, regardless of whether the child is healthy or not.19 However, according to these
decisions the reasons for the parents deciding on e g a sterilization procedure may be of legal significance.
From the above summary it appears that the issue raised by the appeal has deeply divided courts in various foreign jurisdictions. The prevailing view in the United States and, possibly, Canada is that child-raising costs are as a matter of law not recoverable, at least if the woman concerned gave birth to a normal and healthy child. In England and Germany, on the other hand, the authoritative view is that policy and

19. B G H Z 76, 249; 76, 259, and a further decision reported in N J W 1984, 2625. See also Giesen, Recht und Medizinischer Fortschritt, Juristische Rundschau 1984 at pp 222-3, and Deutsch, Artzrecht und Arzreimittelrecht, p 167.

15. other considerations do not stand in the way of a pregnancy claim. Stripped to bare essentials, the primary reasoning of those judges who hold the former view is that it would be morally wrong to saddle a medical man or institution with the cost of maintaining a child whilst allowing the parents to retain all the joys and benefits of parenthood.
The nature of the respondent's claim The claim under consideration is based upon a breach of contract. Because of the facts set out in the stated case, as amplified, it was common cause that the respondent suffered damages (i e child-raising expenses) as a result of the breach, that such damages were a direct and natural conseguence thereof, and that the loss was contemplated by the parties as a likely consequence of failure to perform the agreed sterilization operation; more particularly because, to the knowledge of the Administration, the respondent and Andrae could not afford to support any more children.

16.

The claim therefore satisfies all the requirements of our law for the recovery of damages flowing from breach of contract. In the court a quo it was nonetheless contended that the claim should be disallowed because of considerations of policy and expediency. In his judgment Thirion J dealt with both sets of considerations. In this court counsel for the appellant did not, rightly, in my view, rely on
considerations of expediency and I need say no more
than that I agree with the views expressed by Thirion J. There is, in any event, in our law no authority for denying a claim for the recovery of contractual damages merely because it may be expedient to do so.
Counsel for the appellant did, however, persist with the contention that the respondent's claim

20. Edouard v Administrator, Natal, 1989 (2) SA 368 (D) 382-3.

17. should have been rejected by reason of the dictates of public policy. In the court a quo, as in this court, counsel conceded that the contract for Andrae's sterilization was valid, but nonetheless contended that
it would be contrary to public policy to allow the

claim in question. Thirion J thought²¹ that at first

sight the contention appeared anomalous but, on the
authority of two English cases, apparently accepted
that in appropriate circumstances public policy may
stand in the way of the recovery of damages for breach
of contract.

In my view the English cases ²² are not

authority for the rather general proposition formulated
by Thirion J. Hardy's case is not really in point
whilst in Gray a claim to an indemnity under an

insurance policy was rejected because, but for a prior

21. Ibid, at pp 372-3.

22. Hardy v Motor Insurers' Bureau, (1964) 2 All.
ER 742, and Gray v Barr, (1971) 2 All ER 949.

18.

wrong committed by the insured, the question of an

indemnity would not have arisen. It seems to me that
Peter Pain J correctly summarises the effect of the
relevant English authorities where he says that:

"... generally public policy has interfered
with a claim for damages for breach of

contract only where, but for the plaintiff's

prior wrong, he would have suffered no damage ..."²³

Nevertheless I shall assume, in favour of the appellant, that in our law public policy may reguire
the disallowance of a claim for damages foundêd upon a

breach of a valid and enforceable agreement.²⁴

Policy considerations

In his judgment Thirion J summarised and dealt with a number of objections, on the ground of public policy, to the recognition of a pregnancy

23.	Thake v Maurice, (1985) 2 WLR 215 at 230.

24. Cf, in regard to enforcement of a valid agreement, Magna Alloys and Research (SA) (Pty) Ltd v Ellis, [1984] ZASCA 116; 1984 (4) SA 874 (A) at 891.

19. claim. These objections were set out in a number of legal articles which, in turn, contained summaries of judicial pronouncements in foreign jurisdictions. Thirion J was not swayed by those considerations, and I agree, in the main with his reasoning. In this court counsel for the appellant's main submission in regard to public policy was, however, one not raised in the court a quo and consequently not considered by the learned judge. I shall revert to that submission. But since counsel did not abandon the other policy considerations relied upon in the court a quo, I shall deal briefly with those.
It appears to me that by far the majority of the objections based upon the perceived dictates of public policy are no more than variations on two basic themes; 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
20. from parenthood as a matter of law cancel or outweigh the fináncial 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.

I shall deal first with the second of the two

themes. I have already pointed out that, in the
United States, courts in five jurisdictions- have
allowed a pregnancy action subject to a set-off of the
benefits of parenthood. If - and this is not always
made clear in those cases - the courts were of the view
that an adjustment must also be made for the intangible
benefits flowing.from the birth of a healthy child,

there is a difference of degree only between the views
of the courts and judges which apply the so-called

benef its rule and those who hold that the benef its

automatically cancel out the patrimonial loss involved

in child-raising expenses. In a system where
21. damages are awarded for intangible damages to a far greater extent than in our law, the reasoning of the American courts probably makes sense. As will appear, however, in South African law intangible loss is in principle awarded only in delict and then, apart from infringements of rights of personality, only in the case of a bodily injury. If patrimonial loss is claimed, the tangible benefits accruing as a result of a breach of contract or the commission of a delict (other than those excluded by an application of the maxim res inter alios acta) must obviously be brought-into account. In other words, the monetary value of those benefits must be set off against the gross loss. It has, however, never been suggested that benefits of a non-pecuniary nature must also be "subtracted" from patrimonial loss. Nor is there any foundation for such a suggestion in our law. Take the example of an estate which, for generations, has been in the hands of a family. Sorely tempted by an exceedingly high offer,

22.

the present owner succumbs and accepts it. He lives to regret his impetuous decision. To his great joy the purchaser repudiates. He accepts the repudiation and claims damages, viz, the difference between the purchase price and the value of the estate. It surely cannot be suggested that there should be an adjustment of his loss because of his joy or other non-pecuniary benefits flowing from his retention of the family estatë. In short, in our law a plaintiff claiming patrimonial loss is not called upon to adjust such loss with reference to non-pecuniary benefits arising from inter alia a breach of contract.
I turn to the first of the above themes. In my view the concise answer to it is that 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

23.

as such consitute 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.
In those American cases which denied a claim for child-rearing expenses, it has almost invariably been stressed that the woman concerned gave birth to a healthy and normal child. Presumably, then, a differ-
ent conclusion would have been reached had the child
suffered from an abnormality. Given the basic pre-mises of those courts, I fail to see, however, why only the birth of an abnormal child should be regarded as a "wrong" recognised by law. The doctor who negligently or in breach of contract performed an unsuccessful sterilization operation may be blamed for causing the birth of an unwanted child, but hardly for the fact that the child was born with some abnormality. It also does not follow that an abnormal child will necessarily cause constant grief to his parents. Thus, the initial

24.

sorrow of the parents of a child born with a marked physical defect, may turn into exquisite joy on later discovery that, apart from having a charming disposition, he has the intellect of an Einstein.
Furthermore, the view, expressed or implied, that child-rearing costs may be recovered only if the unwanted child is abnormal, gives rise to a question of fundamental importance: what is the measure of damages? Does it comprise full maintenance costs or only such additional costs as are caused by the child's defect? If the first measure is to be applied, it may well be asked why the birth of the unwanted child should suddenly be considered a "wrong" also in regard to expenditure which the parents would have incurred if the child had been a normal and healthy one. And if the second measure applies, it is not at all clear which "wrong" of the tortfeasor, or the párty guilty of a breach of contract, in law was the cause of the abnormality, as distinguished from the birth of the
25. child.
Apart from what has been said above, I do not find attractive the proposition that the birth of a normal child is a blessing which in law cannot constitute a wrong. Parents who cannot afford a further child may well be overjoyed by the birth of another, but unwanted, sibling, but will naturally be dismayed by the additional financial burden cast upon them. It is, after all, that burden and not thê child as such which is unwanted. Then, too, I doubt very much whether under today's conditions one can safely assume that the birth of an apparently normal child always constitutes a blessing. The innocent baby may become a normal or, indeed, exceptional teenager, but he may also turn out to be a drug addict or a violent psychopath. In short, it is impossible to say whether the new-born child will remain a source of joy to its parents. In some cases they may in later years well rue the day it was born.

26.
In concluding my discussion of the two themes

I can do no better than quote the following judicial
pronouncements:

"It is not at all that human life or the state of parenthood are inherently injurious; rather it is an unplanned parenthood and an unwanted birth, the cause of which is directly attributable to a physician's negligence, for which the plaintiffs seek compensation."

"Certainly there are positive aspects to

child rearing and enduring benefits to

parenthood, but that does not mean, to me, that parents who take measures to prevent the conception of a child should be burdened with all of the expenses that go along with raising that child - expenses that they would not have incurred had it not been for the negligence of another." And:

"I see no reason for departing from the rule that a negligent person is liable for the foreseeable consequences of his negligence.
25. Cockrum v Baumgartner, 447 NE 2d 385 (1983) 392-3 (dissent of Clark, J).

27.

There is no justification for holding, as a matter of law, that the birth of an
'unwanted' child is a 'blessing'. The birth of such a child may be a catastrophe not only for the parents and the child itself, but also for previously born siblings. The doctor whose negligence brings about such an undesired birth should not be allowed to say,
'I did you a favor, secure in the knowledge that the courts will give to this claim the effect of an irrebuttable presumption."

And:

"We reject the proposition that as a matter of law and public policy no legally cognizable claim for child rearing damages can ever arise in such cases where the unplanned child is born normal and healthy. ... That ... public policy ... may foster the development and preservation of the family relationship does not, in our view, compel the adoption of a per se rule denying recovery by parents of child rearing costs from the physician whose negligence has caused their expenditure. In other words, it is not to disparage the value of human life and the societal need for harmonious family units to protect the parents' choice not to have children by recognizing child rearing costs as a compensable element of damages in negligent sterilization cases. We, therefore, decline to follow the majority

26. Terrell v Garcia, 496 SW 2d 124 (1973) 131

(dissent of Cadena J.)

28.

rule of those jurisdictions which have held that in all cases, without regard to the circumstances, the benefits to the parents from the birth of a healthy child always

outweigh child rearing costs and thus result

27 in no injury or damage to the parents."

A further consideration - unrelated to the above two themes - favoured by some of those courts which have rejected a pregnancy claim, is that it would be highly undesirable fbr any child to learn that a court has publicly awarded damages to his parents because his birth was a mistake. The child would then discover, so it is said, that he was unwanted and that his parents regarded his birth as a virtual disaster.
This proposition does not require detailed consideration. It can be disposed of on the following grounds:

1) It is rather uniikely that a child

27.	Jones v Malinowski, 473 A 2d 429, 435 (1984).

28. See, e g, Udale v Bloomsbury Health Authority, (1983) 2 All ER 522, 531.

29.

will in later years learn about a judgment given when he was still of tender years. In any event, once it is accepted that a pregnancy claim is well-founded in law, relatively few cases involving such a claim will go to court.
2) Once parents decide to keep the child and not to put him out for adoption, the child is no longer unwanted. What remains unwanted, is the additional financial burden caused by its birth. Should the child later learn that his birth was a mistake, what will matter to him is not why he was born, but how his parents subsequently cared for him.
I now turn to the main submission, based upon public policy, advanced in this Court by counsel for the appellant. It may be summarised as follows. An inevitable incident of birth is the creation of a legal duty obliging a parent to support the child. Statute law serves to reinforce the duty, e g section 6 of the Divorce Act 70 of 1979. While the pregnancy claim of
30. the respondent was not one by which he sought to be relieved from his obligation to support Nicole, he did seek to have the court determine the" cost of that support and to obtain an order for recovery of that amount from the appellant. In the result the judgment of the court a quo in a very real sense served to transfer from the respondent to the appellant the obligation to maintain Nicole. This runs counter to public policy which demands that there be no interference with the sanctity accorded by law to the relationship between parent and child.

The above submission is to a large extent

based on a judgment of the Supreme Court of

Tennessee. In that case, however, the court relied

not only on a parent's common law obligation to support
a child, but primarily on statutory enactments of
Tennessee. Be that as it may, there is, in my view,

29. Smith v Gore, 728 SW 2d 738 (1987).
31. a basic fallacy in the submission. The judgment in favour of the respondent - in so far as the sum of R22 500 was awarded - in no way relieved the respondent (or Andrae) from the obligation to support Nicole. At most it enabled the respondent to fulfil that obligation. There can thus be no question that the obligation has in law been transferred from the respondent to the appellant. Should the respondent entrust the sum of R22 500 to an investment agent and should it be stolen, the respondent will obviously remain obliged to support Nicole from such other sources as he may be able to muster.
It is not difficult to think of valid contracts providing, in an indirect sense, for a shifting of the financial burden of maintaining a child. A promise of a grandfather or some other relative to pay to a prospective father the anticipated cost of maintaining a new born child may be accepted by the father. Then again a man who has undergone a

32.

vasectomy but who has been warned that the effect of the procedure may be reversible, may take out an insurance policy in terms of which he is to be paid estimated child-rearing expenditure should he and his wife become the parents of a further child. Should payment be made in terms of either agreement there may be, in a sense, a shifting of the financial burden pertaining to child-rearing expenditure, but not a
transfer of an obligation to maintain the child. And -
if a claim is preferred under either agreement, it can surely not be met by a contention that its enforcement-runs counter to considerations of public policy.
In the result I am of the view that the respondent's pregnancy claim was rightly allowed by the court a quo. I should make it clear, however, that my conclusion is intended to pertain only to a case where, as here, a sterilization procedure was performed for socio-economic reasons. As pointed out by Thirion J,

30. At p 381.

33.

different considerations may apply where sterilization was sought for some other reason. The cross-appeal

Introductory
It will be recalled that the respondent also
claimed an agreed amount of R2 500 as damages for
discomfort, pain and suffering, and loss of amenities
of life experienced by Andrae in consequence of her

pregnancy and the subsequent- birth of Nicole. (For
convenience I shall refer to such a claim merely as a claim for pain and suffering.) The respondent's contention was that in our law a breach of contract may give rise to a claim for intangible loss such as that occasioned by pain and suffering. (The reason why the respondent did not prefer a claim in delict is not material to this appeal.) The contention was rejected by the court a quo which found that only patrimonial loss may be claimed ex contractu. The cross-appeal is directed against that finding.

34. South African case law

In this court, as in the court a quo, counsel

for the respondent relied upon a number of cases³¹

decided in the last century and shortly after the turn

of the present one, as well as on the decision of this

court in Jockie v Meyer^.32 I do not propose to analyse

those cases in any detail. It suffices to say that the
courts held, or expressed the view, that on a claim for
breach of contract damages may be awarded for what may
conveniently be described as physical discomfort. With
the possible exception of Dreyer it does not appear
that it was in dispute that intangible loss in respect
of such discomfort may be recovered by means of a

31. Smith and Watermeyer v Union Steamship Co, 5
S 311; Bennet v Shaw, 19 SC 248; Ward v
Gerdener, 16 EDC 73; Commissioner of Public
Works v Dreyer, 1910 EDL 325; Reed v Eddles,
1920 OPD 69, and Silbereisen Bros v Lamont,
1927 TPD 382. To this list may be added
Bester v Smit, 1976 (4) SA 751 (C).

32. 1945 AD 354.
35. contractual claim for damages. It is not clear, however, to what extent the courts were influenced by the rule of English law that nominal damages may be awarded when there has been a breach of contract. In Dreyer, where it was argued that there was no proof of actual damage (damnum), the court referred pertinently
to that rule, but also relied upon an English case,

Hobbs v London and South Western Railway Co^.33 In that

case, decided in 1875, damages were awarded for
physical inconvenience, suffered as a result of a
breach of contract, on the simple ground that there was

no authority precluding an award of such damages.³⁴

It may well be that in the other South African cases
the claim relating to physical inconvenience was not
contested because the defendant thought that the rule
enunciated in Hobbs was also a rule of our law.

33. 10 QB 111. See also Burton v Pinkerton, [1845] EngR 810; 2 Ex
340.

34. Per Cockburn CJ at p 117.

36.

What is clear, is that in none of the South African cases was reference made to our common law authorities. Nor did the courts attempt to determine whether the claim in question was compatible with the general principles of our law relating to the recovery of damages ex contractu (or, for that matter, ex delicto). But, contended counsel for the respondent, all that is beside the point because in Jockie this
court placed its imprimatur on the line of previous
cases. I cannot agree.
In Jockie the plaintiff had sued the defendant for damages for breach of contract. The defendant was the proprietor of a hotel, and the plaintiff alleged that in breach of contract the defendant had refused to accommodate him at the hotel. The magistrate found for the plaintiff and awarded him the following amounts: E1 for disbursements, E9 for physical inconvenience (as a result of the alleged breach the plaintiff had to walk daily a considerable
37. distance to and from his place of work whereas that place was situated quite close to the hotel), and E40 in respect of humiliation and annoyance. On appeal to the Eastern Districts Local Division the magistrate's judgment was altered to judgment for the plaintiff for E10, which meant that the award of E40 was set aside. The plaintiff, in turn, appealed to this court. His appeal was brought on the grounds that more than E9 should have been awarded for the inconvenience suffered by him as a result of the defendant's breach of contract, and that the award of E40 should be restored. The defendant did not take the point that intangible loss flowing from physical inconvenience could not be claimed in an action founded upon breach of contract. On the contrary it seems clear the the defendant assumed that such a claim may be well-founded. This much appears from the uncritical reference in the deféndant's heads of argument to cases such as Dreyer and Hobbs. As regards the award of E9 the defendant

38.

did, however, contend that there was no evidence that the defendant was aware of the plaintiff's special circumstances when he made the booking at the hotel or when he was refused accommodation. On this point (as well as another which is not material for present purposes) this court found for the defendant and held that the award of E9 should not be increased. It was furthermore decided that damages could not be recovered
for humiliation or injured feelings brought about by
breach of contract.
It will thus be seen that in Jockie this. court was not asked to consider - and therefore did not consider - whether a claim for damages in respect of physical inconvenience may be based upon breach of contract. This was because the defendant had in effect conceded that some award for physical inconvenience should have been made. It follows that Jockie is not authority for the above contention advanced on behalf of the respondent.

39.

The common law

Since this is the first South African case in which the question under consideration has been pertinently raised, it is necessary to deal briefly with the general principles of our common law pertaining to the recovery of damages.

None of our old authorities does as much as

hint that in Roman-Dutch Law intangible loss could be
recovered in contract. On the contrary, some of them
make it clear that what may be recovered is damnum, i e
patrimonial loss. So, for instance, Voet 45.1.9, when
dealing with contractual obligations, says that id quod_

interest (damages)

"in its more commonly received sense ... is the deprivation of a benef it and the suffering of a loss ..."
Voet goes on to say that in the settlement of
35. Gane's translation, vol 6, p 631. Also see D 39.2.3.

40. damages no account is to be taken of special affection. And in 39.2.1 he remarks that damage (damnum) is nothing else than the diminution of an estate.
It is also clear that under the Aquilian action only patrimonial loss could be recovered. That is why this court has held that Aquilian liability does not attach to the causing of mental distress or wounded feelings. As is well known, Roman-Dutch Law, unlike Roman Law, did, however, by way of exception allow the recovery in delict of intangible loss flowing from the wounding of a free man. It has now been authoritatively established that a claim for such loss, although sounding in delict, is án actio sui generis differing from the Aquilian action only in so far as it

36. Union Government v Warneke, 1911 AD 657 at 662, 666 and 670.

41 .

is not from its inception actively transmissible.³⁷

As it has developed in South African law, a requirement
of this action is the infliction of a bodily injury on
the claimant. But save for the above exception, and
apart from injuria and seduction, our courts have in
later years consistently indicated that only
patrimonial loss may be recovered in contract and in

delict^{.39 (}An action for a breach of promise to marry

can embrace two separate claims, one for damages for

breach of contract and another for a solatium because

37. Government of the Republic of South Africa v
Ngubane, 1972 (2) SA 601 (A) 606, approving
of Hoffa, N O v S A Mutual Fire and General
Insurance Co Ltd, 1965 (2) SA 944 (C).
38. As explained in Bester v Commercial Union
Versekeringsmaatskappy van S A Bpk, 1973 (1)
SA 769 (A) 779.
39. Holmdene Brickworks (Pty) Ltd v Roberts
Construction Co Ltd, 1977 (3) SA 670 (A) 687;
Novick v Benjamin, 1972 (2) SA 842 (A) 860;
Ranger v Wykerd and Another, 1977 (2) SA 976
(A) 987; Dippenaar v Shield Insurance Co Ltd,
1979 (2) SA 904 (A) 917.

42.

of the commission of an injuria.) It follows that in so far as it was decided in the older cases relied upon by counsel for the respondent that a breach of contract may give rise to a claim for damages in respect of physical inconvenience, they are in conflict with the general principles of our law. Such damages may not even be recovered by the Aquilian action unless, of course, the physical inconvenience was brought about by

a bodily injury.
The proposed extension of liability An alternative contention put forward by counsel for the respondent is that there should be an extension of liability for breach of contract so that the innocent party may recover intangible damages, and in any event damages for pain and suffering. On the assumption that a court has the power, in exceptional

40. Cf Wessels, Law of Contract in South Africa, 2nd ed, vol 2, p 845.

43.

cases, to modify or alter our common law, it is hardly necessary to say that there must be compelling reasons for doing so.
It appears that since the middle of the present century English courts have awarded an innocent party damages even in cases where he did not suffer physical inconvenience as a result of breach of contract. A striking example is to be found in the so-called holiday cases. In these the plaintiff had booked, through a travel agent, a holiday at a hotel. To his chagrin he discovered on arrival that the facilities available at the hotel weíre significantly inferior to the promised facilities. In consequence he claimed damages from the travel agent. It was held that he could recover an amount in respect

44.

of inter alia vexation and mental distress.⁴¹

In my view there is no sufficient reason of

policy or convenience for importing into our law such
an extension of contractual liability. To do so would
be to graft onto a contractual setting elements of the
actio injuriarum. Moreover, the party guilty of breach
of contract would be liable to compensate the innocent
párty for loss which is not even recoverable by the
Aguilian action. In any event, in most instances the
principles of our law relating to liability for breach
of contract appear to be adeguate to afford the
innocent party sufficient satisfaction. Take the
holiday cases. The plaintiff would be entitled to

41 . Jarvis v Swan Tours Ltd, (1973) 1 All ER 71 (CA) 74 and 76; Jackson v Horizon Holidays Ltd, (1975) 1 WLR 1468 (CA). See also Heywood v Wellers, [1975] EWCA Civ 11; (1976) 1 All ER 300 (CA) 306 and 308; Cook v Swinfen, (1967) 1 WLR 457 (CA) 461; Griffiths v Evans, (1953) 1 WLR 1424 (CA) 1432, and McGregor, Damages, 14th ed., pp 45-51.

45. claim the difference between the value of the promised facilities and those actually available to him. It is also conceivable that the latter facilities might have been virtually worthless, in which case the plaintiff could recover the full contract price.
However, the main thrust of the alternative contention was that damages for pain and suffering, for which an action lies in delict, should also be
recoverable for breach of contract. The argument ran
along these lines: since the law of both contract and delict seeks to compensate the innocent party for the consequences of unlawful conduct on the part of another, it is anomalous that damages for pain and suffering can be claimed only by an action founded in delict, and that to allow the respondent's claim for R2 500 would effect a change in the law only to the extent that the respondent could claim such intangible loss as he would, in any event, have been able to claim in delict.

46.

I am not at all convinced that the f acts agreed upon in the stated case give rise to a delictual claim for pain and suffering. In the first place there is no agreement that the Administration negligently failed to perform the sterilization operation. In the second place it is not self-evident that neglect leading to conception and a consequent birth can be equated with the infliction of a bodily injury. In this regard it is to be noted that there is no authority for the view that a victim of seduction may prefer a claim for pain and suffering if, as a result of the defloration, she becomes pregnant and gives birth to a child.
More fundamentally, I cannot agree with the submission that there are compelling reasons why damages for pain and suffering should be recoverable in an action for breach of contract. I say so for mainly the following reasons:

1) Ex delicto such damages may only be

47. claimed if the tortfeasor acted intentionally or negligently. By contrast fault is not a requirement for a claim for damages based upon a breach of contract. The proposed extension of liability would therefore result in the anomalous situation that damages may be recovered ex contractu under circumstances where no action ex delicto would lie.
2) A contractual action for damages is always actively transmissible. By cóntrast a delictual claim for pain and suffering is not. An extension of liability as contended for by counsel for the respondent would therefore result in the further incongruous consequence that a contractual claim for damages for pain and suffering would be transmissible under circumstances where such a delictual claim cannot survive the death of the victim.

It may be that for reasons of convenience it is desirable that in some cases some form of intangible loss may be recovered in contract. That, however, is
48. an extension of the law which has to be effected by the legislature and not by a court of law.
Both the appeal and the cross-appeal are dismissed with costs.

H.J.O. VAN HEERDEN JA

JOUBERT JA

MILNE JA

CONCUR NICHOLAS AJA

GOLDSTONE AJA

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