Edouard v Administrator, Natal

• Jurisdiction: South Africa
• Citation: 1989 (2) SA 368 (D)

Edouard v Administrator, Natal
1989 (2) SA 368 (D)

1989 (2) SA p368

Citation	1989 (2) SA 368 (D)
Court	Durban and Coast Local Division
Judge	Thirion J
Heard	September 16, 1988
Judgment	November 22, 1988

Flynote : Sleutelwoorde F

Contract — Legality — Contract for a sterilisation operation to be performed on a married woman with her husband's consent in order to prevent the birth of a child which they would not be able to support — Such contract valid.

G Contract — Remedies on breach — Damages — Measure of — Contract between provincial hospital and plaintiff's wife assisted by plaintiff for former to perform a tubal ligation on plaintiff's wife in order to render her incapable of procreating further children — H Failure, in breach of contract, to perform such procedure — Plaintiff's wife thereafter falling pregnant and giving birth to a child — Plaintiff, as administrator of joint estate, entitled, in action on the contract, to damages to compensate him for the cost of the maintenance and support of the child — But not entitled in such action to damages for discomfort, pain and suffering and loss of I amenities of life suffered by plaintiff's wife.

Contract — Remedies on breach — Damages — Measure of — Non-pecuniary loss flowing from breach of contract — Not recoverable as damages for breach of contract — If there is a need in our law for J such damages to be recoverable, such need can best be accommodated in the law of delict.

1989 (2) SA p369

Headnote : Kopnota A

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.

It may be that the needs of modern society require that damages should be recoverable on contract for non-pecuniary loss for injured feelings, pain and suffering etc. If there is a need to extend the rules of our law relating to the recoverability of non-pecuniary loss flowing B from breach of contract, such need best be accommodated in the law of delict where the concepts of wrongfulness and fault (in the form of culpa and dolus ) and the defences germane to delict can be used to define the limits of the relief.

The plaintiff, as administrator of the joint estate of himself and his wife to whom he was married in community of property, sued the defendant in a Local Division for damages arising from the failure, in breach of a contract between the plaintiff's wife duly assisted by the plaintiff and a provincial hospital, to perform a tubal ligation on the C plaintiff's wife in order to render her incapable of procreating children. The operation was to be performed during the course of a caesarian section for the birth of the plaintiff's and his wife's third child, but the surgeon in fact did not perform the tubal ligation. A year later the plaintiff's wife gave birth to another child. In an action for damages for breach of contract, the plaintiff claimed (a) damages for the cost of maintaining and supporting the child born as a result of the failure to perform the tubal ligation on plaintiff's wife, D and (b) general damages for the discomfort, pain and suffering, and loss of amenities of life suffered by the plaintiff's wife. It was contended on defendant's behalf that it would be contrary to public policy to allow a claim for the damages under (a) and that damages for loss of a non-pecuniary nature flowing from breach of contract were not recoverable in an action on the contract with the result that the damages under (b) were not recoverable in the action as instituted by the plaintiff.

E Held, as to (a), that it could not be said that it would be contrary to public policy to allow the claim for damages to compensate the plaintiff for the cost of maintaining and supporting the child born as a result of the failure to perform the tubal ligation and that the plaintiff was accordingly entitled to such damages.

Held, further, as to (b), that, having regard to the personal nature of the claim for bodily injury and the fact that damages are awarded as a solatium for the pain and suffering of the injured party, it would F be inappropriate to import it into the law of contract.

Held, further, that the plaintiff was not entitled on his claim, which was based solely on contract, to be awarded damages in respect of the discomfort, pain and suffering and loss of amenities of life suffered by his wife.

Case Information

Stated case in an action for damages for breach of contract. The G facts appear from the reasons for judgment.

M Daley for the plaintiff.

P A M Magid SC (with him P J Olsen ) for the defendant.

Cur adv vult.

H Postea (November 22).

Judgment

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.

1989 (2) SA p370

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:

1989 (2) SA p371

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...