Clinton-Parker v Administrator, Transvaal Dawkins v Administrator, Transvaal

• Jurisdiction: South Africa
• Judge: Navsa J
• Judgment Date: 20 October 1995
• Citation: 1996 (2) SA 37 (W)
• Docket Number: 92/30596 and 92/30597
• Hearing Date: 21 August 1995
• Counsel: C J Hartzenberg SC (with him A M Sorentos) for the plaintiffs. J N S du Plessis SC (with him L J van der Merwe) for the defendant.
• Court: Witwatersrand Local Division

Navsa J:

This is a delictual/contractual action for damages. The plaintiffs' babies were swopped at birth during February 1989 by the J

Navsa J

A staff at the Nigel Hospital, a hospital falling under the control of the Gauteng Provincial Administration ('GPA').

The defendant is sued in his capacity as head of the GPA. The plaintiffs discovered the swop some 18 months after they gave birth. The plaintiffs decided to keep the children handed to them by the hospital. They are suing the defendant for damages B flowing from the swop. It is common cause that the plaintiffs have suffered severe psychological damage for which they will require treatment. Damages claimed by them comprise the cost of treatment, travelling costs they assert they are entitled to as they will have to travel between Pietermaritzburg and Nigel, where they respectively C reside, in order to regularly visit their natural children, and general damages. The plaintiffs sue in delict on the basis of negligence, alternatively contractually on the basis that it was a material term of the contracts they concluded with the hospital that the babies would be properly identified at birth by the hospital staff and that this term was breached, entitling them to damages.

D As will be seen from the statement of agreed facts referred to hereunder, the negligence of the hospital staff is accepted. The defendant also accepts that it was a relevant term of the contract that the babies would be properly identified. The central issue is whether in these circumstances liability attaches to the defendant at all. The parties are agreed on quantum in respect of future medical treatment and travelling costs. General damages have not been agreed upon. E

The plaintiffs initially sued separately. On 16 August 1994, by order of this Court, the two actions were consolidated.

The facts of this case are unique in our legal history and present vexed questions for decision.

F At a pre-trial conference the parties agreed on a statement of facts. I was presented with a minute of an experts' meeting and it appeared initially that this Court would be called upon to decide the matter as a stated case. However, at the commencement of proceedings Mr Hartzenberg, representing the plaintiffs, informed me that he intended to call the plaintiffs and to lead certain expert evidence.

G The plaintiffs testified, as did the mother of one of them. The plaintiffs and the defendant presented expert evidence.

The agreed facts are set out hereunder, as well as the minute of the experts' meeting and the essential features of the evidence presented.

The agreed facts H

1.

On 17 February 1989 the plaintiffs, who were each unmarried, were admitted to the maternity ward of the Nigel Hospital ('the Hospital'). I

2.

Upon admission the plaintiffs concluded two separate agreements with the defendant in terms of which the defendant undertook that its servants would exercise due and proper care in identifying each of the children to be born to the plaintiffs.

3.

On the same date each of the plaintiffs gave birth to a boy. Thereafter, and as a consequence of the negligent conduct of the servants of the defendant, acting within the course and scope of their employment, the two babies were swopped. J

Navsa J

4.

A Upon their discharge from hospital neither of the plaintiffs was aware of the swop.

5.

Each plaintiff accepted the child handed to her as an own child and has since cared for such child.

6.

On or about 26 November 1990, and as a result of circumstances more fully dealt with hereunder, the plaintiffs became aware of the swop: B

6.1

The plaintiff, Clinton-Parker, claimed maintenance for the child in her care from the man she claimed was the natural father of the child. This claim was resisted, necessitating blood tests. The result of these tests showed that neither Clinton-Parker nor the alleged C father was the natural parent of the child in her care. A subsequent investigation in respect of the plaintiff Dawkins showed that she was not the mother of the child in her care. It was conclusively shown that Clinton-Parker was the mother of the child in Dawkins' care and vice versa. D

6.2

The fact that the swop took place was orally communicated to the plaintiffs.

7.

Despite the communication of the swop, the plaintiffs decided and agreed not to return each child to its natural mother.

8.

E The communication of the swop and the present state of affairs arising from the decision and agreement aforesaid caused the plaintiffs to suffer shock and sequelae arising therefrom.

9.

The plaintiffs complied with the provisions of s 2 of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970. F

10.

The defendant accepts that in the event of liability on his part a reasonable amount:

10.1

for travelling expenses, related to the plaintiffs having to travel regularly between Nigel and Pietermaritzburg (where Dawkins and Clinton-Parker respectively reside) to see their natural children, G would be R65 000 for each plaintiff;

10.2

for future medical expenses to be incurred by each of the plaintiffs as a result of the sequelae flowing from the relevant events would be -

(i)

Clinton-Parker R63 248;

(ii)

H Dawkins R83 824.

The minute of the experts' meeting

Professor R J van Rooyen, Dr David A Shevell, Dr Frans Korb, Mrs Jayni Bloch and Ms Anne-Marie Wentzel were the experts who met. It was agreed by the experts that the plaintiffs both suffered from a mixed anxiety depressive syndrome. I

The minute records that Dr Shevell 'notes' some features of PTSD are present and that this results in psychological and somatic signs and symptoms.

Under the heading 'A Description of the Psychological and Physiological Effects of the Plaintiffs' Condition': the following appears: 'All J

Navsa J

A professionals agree that there are numerous signs and symptoms present in both of these ladies as set out in the various reports.'

In respect of the plaintiffs' decision to retain the children and not to exchange them after the discovery of the swop, the minute records the following:'From the available information it appeared that bonding had taken place between both women and the children in their care. All the professionals agree that this matter is extremely complex and that there are various factors involved which would and could affect such a decision. The professionals want to stress that there is no right or wrong answer in this matter.'

The experts describe the plaintiffs' present condition and the effects on them C psychologically and physiologically:

'Ms Dawkins had a third illegitimate child which she gave up for adoption. Ms Dawkins' condition has deteriorated to some extent.

Ms Clinton-Parker is in a permanent relationship that is described as supportive. Her condition has improved to some extent.'

D The experts agreed on the need for psychological counselling and psychiatric treatment and on the attendant costs.

In respect of what the psychological and/or the physiological effects on each of the plaintiffs would have been if the children were returned to their natural mothers upon E the discovery of the swop, the experts recorded the following:

'The professionals would like to stress that there are too many variables to be able to give an accurate assessment.'

The evidence

Margaret Claire Clinton-Parker F

She is one of the plaintiffs. She has a matric certificate and was studying towards a B Comm degree - she already has five credits. Clinton-Parker is at present a sub-accountant with the Pietermaritzburg municipality.

The facts set out above as agreed facts were confirmed by her. She described the relationship between her and the child, Gavin, who was mistakenly handed to her G by the Nigel Hospital, as a very close one. He was breast-fed by her. She gave him her full-time attention for the first ten months of his life. As to what he meant to her: 'Gavin had been my whole life for two years.' When she discovered he was not her natural child some 18 months after his birth, she felt threatened and thought that she H might lose him.

In January 1991 Clinton-Parker saw her natural child for the first time since his birth. She and Dawkins saw each other with the children in their care in Pietermaritzburg. Dawkins and the child in her care (Clinton-Parker's natural child), Robyn, stayed I with her and Gavin in Pietermaritzburg for approximately one week. She and Dawkins were both concerned about their natural children. Each had the need to see her blood child and wanted to confront the situation facing her as soon as possible. They considered adoption and consulted a panel of experts at Child Welfare in this regard. Clinton-Parker saw clinical psychologists, a general medical practitioner and a psychiatrist. She also developed a close relationship with one Penny Fox, a clinical psychologist. J

Navsa J

A Gavin and Ms Fox's child attended the same pre-school. She consulted with Ms Fox about the situation she found herself in.

Clinton-Parker described how the decision had been reached to maintain the status quo in respect of the custody of the children. She and Dawkins were both single parents. The bonds developed with the two children handed to them by the Nigel B Hospital were stronger than they would have been if they had been part of a larger family unit. Gavin had been a breast-fed baby. She did not work for many months after his birth and spent all her time with him. She never envisaged giving up Gavin.

Clinton-Parker confirmed that she had read the experts' reports on her. She confirmed that she had supplied the personal information contained in them. As to the effects of the swop on her life, she explained that it had affected her...