Mukheiber v Raath and Another

• Jurisdiction: South Africa
• Citation: 1999 (3) SA 1065 (SCA)

Mukheiber v Raath and Another
1999 (3) SA 1065 (SCA)

1999 (3) SA p1065

Citation	1999 (3) SA 1065 (SCA)
Case No	262/97
Court	Supreme Court of Appeal
Judge	Smalberger JA, Olivier JA, Streicher JA, Melunsky AJA and Madlanga AJA
Heard	May 7, 1999
Judgment	May 28, 1999
Counsel	T Tockar SC for the appellant.; A R Sholto-Douglas for the respondents.

Flynote : Sleutelwoorde E

Delict — Liability for — Negligent misstatement causing economic loss — Parents, relying on alleged negligent misrepresentation by medical practitioner that he had sterilised wife, desisting from contraception — Child born — Compensation claimed for confinement costs and maintenance of child — Requirements for liability for negligent misrepresentation causing pure economic loss met — Central F role of public policy in limitation of liability highlighted — Such not militating against holding practitioner liable — Extent of liability however limited to that resting on parents to maintain child and lapsing when child reasonably able to support himself.

Damages — Remoteness of — Limitation of liability — Courts G having in past embraced two approaches to limit liability, viz by adopting so-called 'relative approach' or by postulating additional requirement of 'legal causation' — Public policy playing decisive role in both approaches — Approaches accordingly not differing in substance and generally yielding same result. H

Headnote : Kopnota

The respondents, husband and wife, relying on an alleged misrepresentation by the appellant, a gynaecologist, that he had sterilised the wife, had desisted from contraception, as a result of which a child was conceived and born. The respondents claimed compensation from the appellant under two heads of pure economic loss, viz for the costs of confinement of the wife and for the maintenance of the child until it became self-supporting. A Provincial I Division found on the facts that the respondent had failed to prove that the appellant had made the alleged misrepresentation. A Full Bench upheld an appeal by the respondents. The appellant then obtained special leave to appeal to the Supreme Court of Appeal. The Court, after pointing out (at 1070C-C/D) that the ever-present danger of limitless liability in cases of negligent misrepresentation such as the present could be J

1999 (3) SA p1066

averted if A careful consideration was given to the dictates of public policy, set out the requirements of Aquilian liability and proceeded to deal with each of them in the context of the facts of the present case.

Held, that it had been proved on a balance of probabilities that the appellant had made the alleged misrepresentation. (At 1075A/B-C.)

Held, further, as to unlawfulness, that B tortious liability was founded not upon the act performed by the defendant but upon the consequences of that act. Thus, unlawfulness consisted in the violation of the rights of the person suffering damage as a consequence of the act complained of. Whether or not there had been such a violation (or the converse, a dereliction of a duty by the defendant) depended on a number of considerations, including, in the final instance, public policy. (At 1075C/D-F/G.)

Held, further, that the question of C unlawfulness in the context of misrepresentation was whether the representation in question had resulted in an invasion of the rights of the claimant or, conversely, whether there had been a legal duty on the defendant to take reasonable steps to ensure that the representation was correct. (At 1076D-E.)

Held, further, that a failure on a doctor's D part to take reasonable steps to desist from making the sort of representations complained of in the present case until he had taken all reasonable steps to ensure their accuracy rendered the resultant misrepresentation unlawful. (At 1076J-1077A/B.)

Held, further, as to negligence, that it was clear that the E appellant ought to have foreseen the possibility that the representation would result in harm to the respondents. He ought to have taken reasonable steps to guard against such occurrence, but had failed to do so, and negligence was thus established. (At 1077H-I.)

Held, further, as to causation, that there were two main approaches to limiting a defendant's liability for the factual F consequences of his or her conduct: the 'relative approach', in terms of which wrongfulness was determined by applying the criterion of objective reasonableness ex post facto to the actual harm and the manner of its causation and culpability was satisfied only where the defendant in the particular circumstances intended G or reasonably ought to have foreseen and guarded against harm of the kind that actually occurred (thereby according the requirements of wrongfulness and fault an active role in the limitation of liability); and the 'legal causation' test, in terms of which limitation is achieved by postulating a further requirement for liability, namely that the plaintiff's damage should not have been 'too remote'. (At 1078A-H.)

Held, further, that, although South African H Courts have on occasions followed the relative approach, the Appellate Division (and subsequently the Supreme Court of Appeal) had in recent times on several occasions applied the legal causation test. Because public policy played a decisive role in the limitation of liability in both approaches, they did not differ in substance and would generally yield the same result. (At 1078H-1079D.)

Held, further, that the element of factual I causation was not in issue in the present case: but for the appellant's misrepresentation, the respondents would have taken contraceptive measures and the child would probably not have been conceived and born. What remained in dispute was whether public policy excluded or limited the liability of the appellant. (At 1079D-E.)

Held, further, that the policy considerations underlying the judgment in Administrator, Natal v Edouard 1990 (3) SA 581 (A) (in which a claim for 'wrongful conception' based on breach of contract was upheld) were applicable in the instant case inasmuch as there was but one test for J

1999 (3) SA p1067

wrongfulness (based as it was on A considerations of public policy), and that these considerations did not stand in the way of allowing the respondents' action. (At 1080C/D-G/H.)

Held, further, that there was no reason for limiting claims such as those under discussion to requests made only by married couples, or where the husband had given his consent, or where the request was made for socio-economic reasons only (as in the present case). (At 1081C/D-E.) B

Held, further, as to the problem of the danger of imposing a too heavy burden on the doctor, that the answer was that professional people should not act negligently by, for example, making unsolicited misrepresentations. (At 1081F-H.)

Held, further, as to how far the appellant's liability had C to go, that both confinement and maintenance costs were reasonably foreseeable, but that the appellant's liability for the maintenance of the child had to be limited to that which rested on the parents to maintain the child according to their means and station in life, and lapsed when it was reasonably able to support itself. (At 1081H-J.)

Held, accordingly, that considerations of D public policy did not militate against holding the appellant liable for compensating the respondents for the damages claimed by them. (At 1082A-A/B.) Appeal dismissed.

The decision of the Full Bench of the Cape Provincial Division in Raath and Another v Mukheiber confirmed.

Cases Considered

Annotations

Reported cases E

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): applied

Administrator, Natal v Edouard 1990 (3) SA 581 (A): dictum at 589F-590G applied

Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A): dictum at 568B-D applied F

Cockrum v Baumgartner 447 NE 2d 385 (1983): referred to

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

Friedman v Glicksman 1996 (1) SA 1134 (W): dictum at 1139I-1140B applied

Groenewald v Groenewald 1998 (2) SA 1106 G (SCA): referred to

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): referred to

Jones v Malinowski 473 A 2d 429 (1984): referred to

King v Dykes 1971 (3) SA 540 (RA): dictum at 546A-E applied

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

Lillicrap, Wassenaar and Partners v Pilkington H Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A): dicta at 498D-E and 499A-I applied

Minister of Police v Skosana 1977 (1) SA 31 (A): dictum at 34F-35G applied

Minister van Polisie v Ewels 1975 (3) SA 590 (A): dictum at 596G-597H applied

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No 1) [1961] 1 All ER 404 (PC): I dictum at 415A applied

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102A: dictum at 121G-122F applied

Schultz v Butt 1986 (3) SA 667 (A): dictum at 679A-F applied

Siman and Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A): dictum at 904G-D applied

Smit v Abrahams 1994 (4) SA 1 (A): referred to J

1999 (3) SA p1068

Standard Chartered Bank of A Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A): referred to

Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A): dictum at 403A applied

Terrell v Garcia 496 SW 2d 124 (1984): referred to

Van Wyk v Lewis 1924 AD 438: dictum at 444 applied.

Case Information

Appeal from a decision of the Full Bench of the B Cape Provincial Division (Van Deventer J, Brand J and Chetty J). The facts appear from the judgment of Olivier JA.

T Tockar SC for the appellant.

A R Sholto-Douglas for the respondents. C

In addition to the authorities cited in the judgment of the Court, counsel referred to the following authorities:

Emeh v Kensington, Chelsea and Fulham Area Health Authority [1984]...