Edouard v Administrator, Natal

• Jurisdiction: South Africa
• Judge: Thirion J
• Judgment Date: 22 November 1988
• Citation: 1989 (2) SA 368 (D)
• Hearing Date: 16 September 1988
• Court: Durban and Coast Local Division

Thirion J:

The plaintiff, as administrator of the joint estate of himself and his wife, Andrae, to whom he is married in community of property, sues the defendant in his capacity as the executive authority I of the Natal Provincial Administration (NPA) for damages arising from the failure by the NPA, in breach of a contract concluded between it and Andrae, to perform a tubal ligation on Andrae.

It is not necessary to refer in any detail to the pleadings in the action as the parties have agreed, in terms of Rule 33(1) of the Uniform Rules of Court, upon a written statement of facts in the form of J a special case for the adjudication of the Court.

Thirion J

A The agreed facts which are relevant to a decision of the case are set out in paras 2 - 13 of the special case. They are:

'2.

On 19 August 1982 and at Durban, the plaintiff's wife, duly assisted by the plaintiff, concluded an agreement with the NPA.

3.

In terms of the agreement, the NPA agreed:

(a)

B to cause the tubal ligation of the plaintiff's wife's fallopian tubes to be effected by means of surgery, for the purpose of rendering the plaintiff's wife sterile and incapable of procreating; and

(b)

to cause such surgery to be performed at Addington Hospital, Durban, at the time of the birth of the child which the plaintiff's wife was then expecting.

4.

On 9 September 1982 and at Addington Hospital, Durban, the plaintiff's wife gave birth, by caesarian section, to the child which she was expecting at the date of the conclusion of the agreement referred to above.

5.

In breach of its obligation to do so, the NPA failed, at the time of the birth of the said child on 9 September 1982 as aforesaid, or thereafter, to cause the said surgery to effect the tubal ligation of the plaintiff's wife's fallopian tubes to D be performed at all.

6.

After the birth of her said child on 9 September 1982, the plaintiff's wife:

(a)

reasonably believed that the surgery to effect the tubal ligation of her fallopian tubes had been performed; and

(b)

in consequence of such belief did not take any precautions or utilise any contraceptive methods to prevent pregnancy.

7.

E During January 1983, the plaintiff's wife fell pregnant and in consequence thereof gave birth to a child, namely Nicole, a daughter on 7 September 1983. The birth was one by caesarian section.

8.

Upon the birth of the child, Nicole, on 7 September 1983, an operation was performed at the instance of the plaintiff's wife by Dr N E G Foster, to effect the tubal ligation of her fallopian tubes.

9.

F The circumstances set forth in subparas (a) - (c) hereunder flowed as a direct and natural consequence of the failure of the NPA to cause the surgery to effect the tubal ligation of the plaintiff's wife's fallopian tubes to be performed, and were within the contemplation of the parties at the time of conclusion of the agreement for the performance of such surgery as the likely consequence of the breach of the agreement by the NPA described above:

(a)

G the pregnancy of the plaintiff's wife from January 1983, and the subsequent birth of the child Nicole;

(b)

the fact that the plaintiff's wife suffered discomfort, pain and suffering and a loss of the amenities of life in consequence of her pregnancy and the birth of the child, Nicole, by caesarian section;

(c)

H the fact that the plaintiff and his wife have been and remain obliged to maintain and support the child, Nicole.

10.

The defendant concedes that it is liable to the plaintiff in damages for breach of contract, in consequence of its failure to cause the surgery to effect the tubal ligation of the plaintiff's wife's fallopian tubes to be performed as aforesaid.

11. (a)

I The defendant admits that as and for such damages, a sum of R622,79 is payable to the plaintiff, being the cost of the surgery performed by Dr N E G Foster.

(b)

The defendant avers that payment of that sum discharges its liability to pay damages for the aforesaid breach of contract.

12.

The plaintiff avers that he is entitled to receive further J compensation for the breach of contract, being:

Thirion J

(a)

A general damages for the discomfort, pain and suffering, and loss of amenities of life suffered by the plaintiff's wife;

(b)

an amount fairly representing the sum of:

(i)

the cost to the plaintiff and his wife of maintaining and supporting Nicole to date; and

(ii)

the amount required for investment now in order to B maintain and support Nicole from the date hereof to the date upon which she attains the age of 18 years.

13.

It is agreed between the parties that if this honourable Court should find:

(b)

that general damages for discomfort, pain and suffering, and loss of amenities of life are payable by defendant to the plaintiff, the amount to be awarded is R2 500; and

(b)

C that the plaintiff is entitled to compensation for the cost of maintaining and supporting Nicole, the amount to be awarded is R22 500.'

The general damages referred to in para 13(a) of the special case are claimed in respect of Andrae's pregnancy with and the birth of Nicole.

During argument the special case was amplified by the addition D thereto of the following two paragraphs:

'The parties agree that:

1.

To the knowledge of the parties, the plaintiff's wife concluded the contract to undergo tubal ligation because the plaintiff and his wife could not afford to support any more children.

2.

E The plaintiff and his wife would not have agreed to Nicole being given out to adoption.'

Nicole is the plaintiff's and Andrae's fourth child. Although the agreed statement of facts is silent on this point, it is also agreed that the plaintiff himself was at all relevant times unaware F of the fact that the tubal ligation had not been performed.

The agreement between Andrae and the NPA for the performance of the tubal ligation was partly in writing. It took the form of a consent signed by both the plaintiff and Andrae, the relevant part of which reads:

'I, Andrae Edouard, request and hereby consent to the performance of a surgical operation by tubal ligation on myself for the purpose of G producing incapability of procreation.... I acknowledge that I am fully aware of and understand the purpose and consequence of the said operation including the fact that permanent sterility in all cases may not result.'

I raised with counsel the question whether the acknowledgement by plaintiff and Andrae that they were aware that the operation might H not result in permanent sterility, might not affect plaintiff's claim. Counsel for the defendant then expressly disavowed any intention on the part of defendant of contending that such knowledge would affect any claim plaintiff might otherwise have. As I understand counsel's concession it is a factual one; namely that the possibility that I the operation, if it had been performed, and competently performed, would not have resulted in permanent sterility, is so remote that it can be ruled out as a factor in this case. That concession relieves me of the duty of dealing with this aspect.

The plaintiff claims damages arising from breach of the contract only. The reason why a claim in delict is not made is that the plaintiff has failed to comply with the requirements of the Limitation of J Legal Proceedings

Thirion J

A (Provincial and Local Authorities) Act 94 of 1970 in that he has failed to give notice of his intention to institute legal proceedings for the recovery of delictual damages.

The two issues which the parties desire to have decided have been formulated by them as follows:

'(1)

B Whether or not, in the disclosed circumstances, the plaintiff is entitled to an award of general damages in respect of the discomfort, pain and suffering, and loss of amenities of life suffered by the plaintiff's wife.

(2)

Whether or not, in the disclosed circumstances, the plaintiff is entitled to be awarded as damages an amount to compensate the C plaintiff for the cost of the maintenance and support of the child Nicole.'

I deal first with the second of these two issues.

On this part of the case the defendant's contention is that it would be contrary to public policy:

(i)

D to allow the parents of a healthy and normal but unplanned child,

(ii)

to recover, in an action for breach of contract,

(iii)

from a defendant who had contracted with the wife to perform a tubal ligation on her for the purpose of rendering her sterile and incapable of childbearing but who had, in breach of his contractual undertaking, failed to perform the operation at all,

(iv)

E and where such failure has resulted in the birth of the child which was conceived because the parents had, in the belief that the operation had been performed, which belief was reasonable in the circumstances, omitted to take precautions against conception when having sexual intercourse with each other,

(v)

F the cost of bringing up the child, as damages, where the parents refuse to give the child out to adoption;

(vi)

even though such cost flows as a direct and natural consequence, from the defendant's breach of contract and may reasonably be supposed to have been in the contemplation of the parties at the time of the conclusion of the contract as a likely G consequence of a breach of defendant's undertaking;

(vii)

and even though, to the knowledge of the parties at the time of the conclusion of the contract, the wife concluded the contract to undergo the tubal ligation because she and her husband could not afford to support an additional child.

H The defendant's contention is that, while it concedes that the contract for Andrae's sterilisation is valid and enforceable and is in itself not contrary to public policy, it would...