Mukheiber v Raath and Another

• Jurisdiction: South Africa
• Judge: Smalberger JA, Olivier JA, Streicher JA, Melunsky AJA and Madlanga AJA
• Judgment Date: 28 May 1999
• Citation: 1999 (3) SA 1065 (SCA)
• Docket Number: 262/97
• Hearing Date: 07 May 1999
• Counsel: T Tockar SC for the appellant. A R Sholto-Douglas for the respondents.
• Court: Supreme Court of Appeal

Olivier JA:

[1] Since the middle of the 1960s actions for 'wrongful conception' (an action for damages brought by the parents of a normal, healthy child born as a result of a failed sterilisation or F abortion performed by a medical doctor), 'wrongful birth' (an action brought by the parents on similar grounds but where the child is born handicapped) and 'wrongful life' (an action brought by a deformed child, who was born as a result of a negligent diagnosis or other act by a doctor) have troubled Courts in England, the USA, Canada and Germany. In South G Africa it was for the first time given judicial attention in the High Court in Edouard v Administrator, Natal 1989 (2) SA 368 (D) and by this Court in Administrator, Natal v Edouard 1990 (3) SA 581 (A). The Edouard case was a claim for 'wrongful conception' and was based on breach of contract.

[2] The appeal before us is a novel one. It does not H fit neatly into the scheme described above. It is a claim based squarely on delict, more particularly on negligent misrepresentation. It is alleged by the parents that the doctor negligently misrepresented to them that the wife had been sterilised, when in fact no sterilisation was done at all. Relying on such representation, they failed to take I contraceptive measures. A child was conceived and born as a healthy, normal boy. The claim is aimed at compensation under two heads of pure economic loss, viz confinement costs and maintenance of the child until it becomes self-supporting.

[3] In the trial Court, the question of the doctor's liability was separated from the quantification of the claim. The trial Court found on the facts J

Olivier JA

that it had not been proved on a balance of probabilities A that the defendant, Dr Mukheiber, had made the alleged misrepresentation. The plaintiffs, Mr and Mrs Raath, appealed to the Full Court of the Cape of Good Hope Provincial Division of the High Court. The appeal was upheld and the order of the trial Court was substituted with one declaring Dr Mukheiber to be liable to compensate Mr and Mrs B Raath under the two heads of damages mentioned above, the precise quantification of the damages to be proceeded with in due course before the trial Court. With special leave of this Court, Dr Mukheiber appeals against the judgment of the Full Court.

The cause of action C

[4] The legal matrix in which the plaintiffs' claim is to be placed and judged is that of negligent misrepresentation which causes pure economic loss, ie as opposed to physical injury to person or property, and not made in a contractual context. D

Such a claim is recognised in our law as one of the instances of the application of the extended actio legis Aquiliae. This was established by this Court in Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 831B-833C. That decision by this Court introduced an innovation. It was realised at the time that the scope and application of the innovation would have to be carefully controlled. But - as was predicted in that case - it is now clear that the said action E has a useful role to play in our law.

[5] This action was again affirmed in Siman and Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) at 904D-G, again in Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 498D-E and more recently in Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 568B-D. F

[6] Reflecting the general principles and requirements of Aquilian liability in our law, the action now under discussion is available to a plaintiff who can establish: G

(i)

that the defendant, or someone for whom the defendant is vicariously liable, made a misstatement (whether by commissio or omissio) to the plaintiff;

(ii)

that in making the misstatement the person concerned acted unlawfully; H

(iii)

that such person acted negligently;

(iv)

that the plaintiff suffered loss;

(v)

that the said damage was caused by the misstatement; and

(vi)

that the damages claimed represent proper compensation for such loss. (See Bayer at 568B-D for a statement of these requirements.) I

[7] In all the cases cited above this Court cautioned against the danger of limitless liability produced by the application of the extended Aquilian action. That danger is ever present, particularly where a medical practitioner runs the risk of having in effect to maintain the child of his patient without having any real control over the vicissitudes that attend J

Olivier JA

A the child's upbringing. In order to keep the cause of action within reasonable bounds, each and every element of the delict should be properly tested and applied. This includes, according to Corbett CJ in Bayer at 568D,

B '. . . the duty of the Court (a) to decide whether on the particular facts of the case there rested on the defendant a legal duty not to make a misstatement to the plaintiff (or, to put it the other way, whether the making of the statement was in breach of this duty and, therefore, unlawful) and whether the defendant in the light of all the circumstances exercised reasonable care to ascertain the correctness of his statement; and (b) to give proper attention to the nature of the misstatement and the interpretation thereof, and to the question of causation'.

C The danger of limitless liability in particular as far as negligent misrepresentation as a cause of action is concerned can be averted if careful consideration is given to the dictates of public policy, keeping in mind that public policy can easily become an unruly horse.

D [8] I will deal with the factual and legal disputes in the appeal before us in the matrix of the cause of action, set out above, and in the same manner as was done in Bayer.

(A) The representation (statement)

E [9] This factual issue was hotly contested. On this issue, the trial Court and the Full Court came to different conclusions. A careful re-examination of the question whether the representation that Mrs Raath had been sterilised had in fact been made is therefore called for.

It is common cause that Mr and Mrs Raath are married out of community of F property and both are estate agents. Mrs Raath has given birth to four children: a son, Zane, who was born in 1986 and who died when he was five years old; a son, Timothy, born in 1988; a daughter, Taryn, born in 1993; and a son, Jonathan, born in 1994. The birth of Jonathan gave rise to the present claim.

G [10] Dr Mukheiber is a gynaecologist who has been practising as such for more than 30 years. A doctor-patient relationship existed between him and Mrs Raath from before Timothy's birth, attended to by Dr Mukheiber and done by way of caesarian section in 1988. In 1992 Mrs Raath became pregnant with Taryn. Dr Mukheiber once again was chosen by the prospective parents to attend to the pre-natal treatment of Mrs Raath. She visited him a number of times in the ordinary course of her confinement. H

[11] On 28 January 1993 Mrs Raath again visited Dr Mukheiber on a routine ante-natal gynaecological visit. During the course of that visit it was decided that she would give birth to the child she was then carrying by elective caesarian I section on 8 February 1993, which was to be done by Dr Mukheiber. During the course of the same consultation, she informed him that she did not wish to fall pregnant again and the question of sterilisation was raised. Dr Mukheiber informed her that he required her to discuss the matter with her husband and to tell him at their next consultation what they had decided. Mr and Mrs Raath had previously discussed the prospect of her sterilisation but not, as they J

Olivier JA

described it, ' . . . in depth . . .'. They did not, on the evening of 28 January 1993, A discuss the issue of sterilisation. However, during the early hours of 29 January 1993 Mrs Raath went into spontaneous labour and, at approximately 6.30 am, Dr Mukheiber delivered her of a healthy daughter (Taryn) by emergency caesarian section. The following day Dr Mukheiber visited Mrs Raath in hospital and on Monday, 1 February 1993, she was discharged from hospital. B

[12] It is common cause that at no stage was it agreed that Dr Mukheiber would perform a sterilisation procedure. The prescribed forms required by the hospital where Mrs Raath gave birth to Taryn that permit a doctor to perform a sterilisation had not been completed. The pathological examination which Dr Mukheiber always C insisted upon after he had done a tubal ligation had not been requested or done. He had, in fact, not performed a sterilisation on Mrs Raath and his patient's card and records did not reflect such an operation at all, although meticulously correct in all other respects. D

[13] So far so good. The cause of the unhappiness of the Raaths and the alleged cause of action arose on 4 February 1993, when Mrs Raath, accompanied by her husband, visited Dr Mukheiber's consulting rooms and surgery at approximately 13:00 to have the sutures, inserted during the caesarian section, removed. E

The plaintiffs' version is that, having removed the sutures, Dr Mukheiber called Mr Raath, who was in the waiting room, into the surgery to show to him how neatly the operation had been done. According to them, Dr Mukheiber then told them that he had performed a sterilisation on Mrs Raath, that she was now a 'sports model', and that they did not need to worry about contraception. F

[14] Dr Mukheiber disputes this version. He cannot remember having removed Mrs Raath's sutures, but concedes that he must have done so. However, he denies that he ever made the alleged misstatement. His denial was articulated as follows: G

'I don't think I made a mistake [ie the alleged misrepresentation] for the following reasons: it was very soon after the caesarian...