Administrator, Natal v Edouard

• Jurisdiction: South Africa
• Citation: 1990 (3) SA 581 (A)

Administrator, Natal v Edouard
1990 (3) SA 581 (A)

1990 (3) SA p581

Citation	1990 (3) SA 581 (A)
Court	Appellate Division
Judge	Joubert JA, Van Heerden JA, Milne JA, Nicholas AJA and Goldstone AJA
Heard	May 7, 1990
Judgment	May 30, 1990

Flynote : Sleutelwoorde D

Contract — Remedies on breach — Whether remedy contrary to public policy — Contract itself valid — Contract for sterilisation operation E to be performed on married woman with consent of husband after birth of their third child — Couple financially unable to support any more children — Father of child claiming cost of maintenance of child, born as result of sterilisation never having been performed, as damages for breach of contract — No question that award of such damages would transfer father's obligation in law to support child to doctor or F hospital authorities — Allowance of pregnancy claim not contrary to public policy where sterilisation performed for socio-economic reasons.

Contract — Remedies on breach — Damages — Measure of — Contract between provincial hospital and respondent's wife, assisted by respondent, for hospital to perform sterilisation operation on wife G after birth of couple's third child — Failure, in breach of contract, to perform such procedure — Respondent's wife falling pregnant and giving birth to another child — Respondent, as administrator of joint estate, entitled, in claim on the contract, to damages to compensate him for cost of maintenance and support of child — But not entitled in H action on contract to damages for discomfort, pain and suffering and loss of amenities of life suffered by his wife.

Contract — Remedies on breach — Damages — Measure of — Intangible loss flowing from breach of contract — Court holding that only patrimonial loss recoverable ex contractu — No sufficient reason of I policy or convenience for extending contractual liability to include damages for intangible loss.

Headnote : Kopnota

The respondent, in his capacity as administrator of the joint estate of himself and his wife, instituted an action for damages against the appellant in a Local Division, which damages arose out of the failure, in breach of a contract concluded between the respondent's wife, duly J assisted by the respondent, and a provincial hospital, to

1990 (3) SA p582

A perform a tubal ligation on the respondent's wife in order to render her sterile. The operation was to be performed during the course of a caesarean section for the birth of the couple's third child, but the tubal ligation was in fact not performed. A year later the respondent's wife gave birth to another child and the respondent, in an action for damages for breach of contract, claimed damages for the cost of supporting and maintaining the child born as result of the failure to perform the sterilisation operation, and general damages for the B discomfort, pain and suffering and loss of amenities of life suffered by his wife. The Court a quo upheld the claim for maintenance and support of the child but held that a breach of contract did not give rise to a claim for non-patrimonial damages. In an appeal by the appellant against the award of an amount of R22 500 on the first issue and a cross-appeal by the respondent against the disallowance of general damages, it was contended for the appellant that to allow a pregnancy claim such as the instant one would be to transfer from the parents to a doctor or C hospital the legal obligation of supporting a child, and that this ran counter to public policy which demanded that there be no interference with the sanctity accorded by law to the relationship between parent and child.

Held, that the amount awarded to the respondent in the Court a quo in no way relieved the respondent from the obligation to support the child in question but that at most it enabled the respondent to fulfil that obligation, so that there could be no question that the obligation had D in law been transferred from the respondent to the appellant.

Held, therefore, that the respondent's pregnancy claim was rightly allowed by the Court a quo, but that this conclusion only pertained to a case where, as in casu, a sterilisation procedure was performed for socio-economic reasons - different considerations could apply where sterilisation was sought for some other reason.

Held, further, as far as the cross-appeal was concerned, that our Courts have in later years consistently indicated that only patrimonial loss E could be recovered in contract.

Held, further, that there was no sufficient reason of policy or convenience for importing into our law an extension of liability for breach of contract so that intangible loss might be recovered ex contractu - it would, on the contrary, lead to incongruous results.

Held, accordingly, that both the appeal and cross-appeal had to be dismissed.

F The decision in the Durban and Coast Local Division in Edouard v Administrator, Natal 1989 (2) SA 368 confirmed.

Case Information

Appeal from a decision in the Durban and Coast Local Division (Thirion J), reported at 1989 (2) SA 368. The facts appear from the judgment of Van Heerden JA.

G A J Dickson for the appellant referred to the following authorities (the heads of argument having been drawn by P A M Magid SC (with him P J Olsen)): As to the question of whether public policy can limit the scope of damages for breach of a valid contract, see Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A); Dodd v Hadley 1905 TS 439 at H 442. As to the legal duty obliging a parent to support his/her child, see In re Knoop (1893) 10 SC 198; Lamb v Sack 1974 (2) SA 670 (T); R v Swanepoel 1954 (4) SA 31 (O) at 36E - 37G. As to the protection the law affords the relationship between parent and child, see Van der Westhuizen v Van Wyk and Another 1952 (2) SA 119 (GW) and Naudé v Naudé 1968 (1) SA 116 (O). As to the unenforceability of a contract which I extinguishes a parent's legal duty to maintain a child, see Shields v Shields 1946 CPD 242; Bleazby v Bleazby 1947 (2) SA 523 (C). As to the existence of the right in American law of parents to limit the size of their families and its exclusion of the operation of public policy, see Ochs v Borrelli Conn 445 A 2d 883 (1982); Smith v Gore Tenn 728 SW 2d 738 (1987); Wilbur v Kerr Ark 628 SW 2d 568 (1982) at 571. As to the J approach of the American Courts, see

1990 (3) SA p583

A Coleman v Garrison Del Super 372 A 2d 757 (1974) at 761; Berman v Allan 404 A 2d 8; White v United States 510 F Supp 146 (1981); Flowers v District of Columbia 478 A 2d 1073 (1984); Sorkin v Lee App Div 434 NYS 2d 300; Troppi v Scarf (1971) 187 NY 2d 511; Weintraub v Brown 470 NYS 2d 634 (AD 1983) at 461; O'Toole v Greenberg 477 NE 2d 445 (NY 1985); Cockrum v Baumgartner 447 NE 2d 385 (Ill 1983) at 390 - 1; P v Portadin B (NJ Super AD) 432 A 2d 556 at 559. For helpful summaries of American law as it has been from time to time, see Terrel v Garcia 496 SW 2d 124 (CCA, Texas 1973); Wilbur v Kerr (supra); Kingsbury v Smith NH 442 A 2d 1003 (Supreme Court 1982); Byrd v Wesley Medical Centre 699 P 2d 459 (Kan 1985); Smith v Gore (supra). As to the English law, see Thake v C Maurice [1984] 2 All ER 513 at 523 - 7; Thake v Maurice [1986] 1 All ER 497 (CA); Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522.

M Daley for the respondent referred to the following authorities: As to the unenforceability of contracts contrary to good morals, see Ismail v Ismail 1983 (1) SA 1006 (A) at 1025; Robinson v Randfontein Estates GM D Co Ltd 1925 AD 173 at 204. As to the Courts exercising caution when declaring contracts void as against public policy, see Wells v South African Alumenite Co 1927 AD 69 at 73; Eastwood v Shepstone 1902 TS 294 at 302. As to the approach of the English Courts, see Emeh v Kensington and Chelsea and Westminster Area Health Authority [1984] 3 All ER (CA); Udale v Bloomsbury Area Health Authority [1983] 2 All ER 522; Thake and E Another v Maurice [1984] 2 All ER 513. As to the decision in the Udale case, operating neither in the best interests of the child nor the parents nor of society in general, see Anne C Reichman 'Damages in Tort for Wrongful Conception - Who bears the cost of raising the child?' (1983 - 5) 10 Sydney Law Review (consideration of potential benefits of a F non-material nature as being unduly speculative). As to American authority for allowing damages for the cost of child-rearing in consequence of a failed sterilisation operation, see Stribling v deQuevedo Pa Super 422 A 2d 505; Speck v Fine Gold Pa 439 A 2d 110; Pierce v De Gracia Ill App 431 NE 2d 768; Jones v Malinowski 473 A 2d 429 (Md 1984); Alquijay and Others v St Luke's, Roosevelt and Others 473 NE 2d 244 (NY 1984). As to the proposition that damages of a particular G nature might, on the grounds of public policy, not be recoverable, the cases of Hardy v Motor Insurers' Bureau [1964] 2 All ER 742 and Gray v Barr [1971] 2 All ER 949, cited in the Court a quo, are not authority for such proposition inasmuch as in those cases it was not the nature of the damages which precluded recovery. As to the action being brought not H to have the appellant maintain the child 'but to replenish the family exchequer' so that the new arrival does not deprive other family members of what was planned as their just share of the family income, see Custodio v Bauer 251 Cal App 2d 303 (59 Cal Rptr 463; 27 ALR 3d 884 at 903). As to the cross-appeal and the fact that in an award of damages the loss must either be a natural or direct consequence of the breach or I have been within the contemplation of the parties, at the time of making the contract, as the probable result of a breach, see Lee and Honoré The South African Law of Obligations 2nd ed para 188; Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd...