Premier, KwaZulu-Natal v Sonny and Another

• Jurisdiction: South Africa
• Judge: Mpati P, Navsa JA and Bosielo JA
• Judgment Date: 04 March 2011
• Citation: 2011 (3) SA 424 (SCA)
• Docket Number: 047/10
• Hearing Date: 15 February 2011
• Counsel: PD Hemraj SC (with N Govender) for the appellant. CJ Hartzenberg SC (with ME van Jaarsveld) for the respondents. The appeal is dismissed with costs, including the costs of two counsel.
• Court: Supreme Court of Appeal

Navsa JA (Mpati P and Bosielo JA concurring): D

[1] On Saturday 16 November 2002 at King Edward VIII Hospital in Durban, 37-year-old Mrs Jayanthi Sonny, the second respondent, gave birth to her second child, a baby girl. What ought to have been a period of unmitigated joy for Mrs Sonny (Jayanthi) and her husband, Kishore, the first respondent, was short-lived. Their newborn daughter was E afflicted with Down's syndrome. [1] Their joy turned to anxiety and despair. A year later, during December 2003, they instituted action against the appellant, the Premier of the Province of KwaZulu-Natal and the Ethekwini Municipality (the Municipality), claiming damages comprising, first, the cost of maintaining their daughter for a period of 55 years, which was estimated at R6,6 million, and second, an amount F of R150 000 was claimed by Jayanthi for what was a bilateral tubal ligation [2] allegedly wrongfully performed.

[2] Broadly speaking, the first and second respondents' case against the appellant and the Municipality in the KwaZulu-Natal High Court was that, in treating Jayanthi during her pregnancy, the nursing staff at the G Clare Estate Clinic, a primary health clinic conducted by the Municipality, and the medical personnel at Addington Hospital, which is under the control of the appellant, were negligent in that they failed to exercise the professional skill and diligence required of them in the circumstances. [3] More particularly, the respondents alleged that the medical H staff at the clinic and hospital failed to take reasonable steps timeously to establish conclusively, during the second trimester of her pregnancy, that there existed a substantial risk that the fetus that Jayanthi was carrying would suffer from a physical or mental abnormality. The first and second

Navsa JA (Mpati P and Bosielo JA concurring)

A respondents contended that, had the medical staff acted with the professional skill and diligence required of them, they, as parents-to-be, would have been informed timeously of the risk, and would have taken the decision to terminate Jayanthi's pregnancy in terms of the Choice on Termination of Pregnancy Act 92 of 1996.

B [3] Furthermore, the first and second respondents claim that, when they consented to the bilateral tubal ligation, they did so after being advised by a doctor at King Edward VIII Hospital that the results of a cordocentesis [4] performed on the fetus indicated that they could expect a baby healthy in all material respects. This proved ultimately to be an C erroneous test result and consequently their consent was not properly informed, and the bilateral tubal ligation was wrongly performed. King Edward VIII Hospital also falls under the control of the appellant.

[4] At the outset in the court below the parties had agreed that the question of liability be decided first and it was directed accordingly. The D Municipality initially disavowed liability. During the trial in the court below the Municipality capitulated and conceded liability for 33% of Jayanthi s damages in relation to the birth of the child. The appellant, however, persisted in its denial of liability in respect of both claims and the trial proceeded against him.

E [5] After hearing evidence the court below (Levinsohn DJP) found that the medical staff at Addington Hospital were negligent in their treatment of Jayanthi, and held the appellant liable for such damages the respondents may prove, arising from the birth of the child. In relation to the claim based on Jayanthi's sterilisation, the appellant was absolved from the instance. The appellant was ordered to pay the respondents' costs, F including the costs of two counsel. The appellant was also ordered to pay the costs of consultation with experts, including travelling time and expenses. In addition, the appellant was ordered to pay the expenses of necessary witnesses and the reasonable qualifying and attendance fees of named expert witnesses. The liability to pay the abovementioned costs was joint and several with the Municipality, up to and including G 1 December 2008 (when liability was conceded by the latter). The present appeal, with the leave of the court below, is against the orders in favour of the second and third respondents.

[6] Before us it was contended on behalf of the appellant that the court below had erred in its finding of negligence. The credibility and factual H findings of the court below were challenged. The acceptance of Jayanthi's evidence in preference to the evidence of medical staff employed by the appellant was criticised. In the alternative, it was submitted that the court below ought, at the very least, to have found that there was contributory negligence on the part of Jayanthi.

I [7] I proceed to consider the relevant evidence in some detail and to deal with the assessment by the court below.

Navsa JA (Mpati P and Bosielo JA concurring)

[8] On Tuesday 25 June 2002 Jayanthi presented at the Clare Estate A Clinic located close to her home. On that date she became a patient at the clinic. The nurses at the clinic were made aware that her first pregnancy had been a normal delivery. Jayanthi was diabetic and suffered from high blood pressure. Those two factors, coupled with her relatively advanced age of 37, unarguably made her a high-risk patient, [5] B requiring hospital attention, rather than treatment at a primary healthcare clinic. After a blood pressure and diabetes test had been conducted the clinic referred her to Addington Hospital. She was provided with a letter of referral. None of the facts set out above are in dispute.

[9] The material parts of Jayanthi's version of events, which are disputed C by the appellant, appear in this and the following two paragraphs. On Wednesday 26 June 2002 Jayanthi, accompanied by her husband, called at Addington Hospital. Jayanthi testified that she overheard a nurse at the hospital announce that persons without a letter of referral would not be seen. After being registered as a hospital patient she underwent a urine, blood-tissue and diabetes test. All of this was done by a nurse. D Crucially, Jayanthi testified that thereafter she saw a doctor. In his judgment Levinsohn DJP noted the following material parts of Jayanthi's description of the doctor:

'She was an Indian female. She was not a South African.

Why do you say she is not a South African? E

Because I could make out from her tone of . . . the way she spoke.

Levinsohn DJP:

Her accent?

Her accent, the way she spoke.

Who did she speak like? Came from India, or Mauritius? More or less India, if not India, Pakistan or something.' F

[10] The doctor examined Jayanthi and referred her to the ultrasound room to have an ultrasound scan performed. When that procedure was completed, a sonographer handed Jayanthi a computer-generated ultrasound report. She was told to take the report to the doctor and was informed by the sonographer that she needed to be rescanned in two G weeks' time. Jayanthi recalled looking at the ultrasound report...