Introduction

1. It is trite that our law recognises a claim by parents in respect of the financial costs involved in supporting a child born following a failed sterilisation. The matter of The Premier of the Western Cape Province v Loots 2011 (SCA) 32, however, concerned a delictual claim for damages suffered by the mother following a failed sterilisation in respect of harm suffered during the birth process that went “terribly wrong”. The Court was called on to answer whether the damages flowing from the birthing complication fulfilled the foreseeability requirement as an element of negligence, as well as the requirements of legal causation.

Factual Background

2. The claim was brought by Johannes Hendrik Loots N.O. who acted in his capacity as the duly appointed curator ad litem for Mrs Johanna Cecelia Erasmus (the mother). Mrs Erasmus suffered brain damage as a result of complications during parturition resulting in her being unable to manage her own affairs.

3. Mrs Erasmus underwent a sterilization operation during 1999 performed by the Second Appellant, a clinical assistant at that stage in the employ of the First Appellant. The operation involved a laparoscopic occlusion of both fallopian tubes.  Mrs Erasmus, however, fell pregnant soon thereafter. It later transpired that the Second Appellant had mistakenly occluded Mrs Erasmus’ round ligaments instead of her fallopian tubes.

4. Mr and Mrs Erasmus were offered the option to terminate the pregnancy by the Tygerberg Hospital, which they declined for religious reasons.

5. During November 1999, Mrs Erasmus was admitted to the Tygerberg Hospital for hypertension.  As the baby was in distress, an emergency caesarean section was performed.  Sadly, the baby was severely compromised and did not survive. 

6. The experts for both the Appellants and the Respondent speculated that either shortly before, during or after the caesarean section Mrs Erasmus must have developed what is known as “amniotic fluid embolism” (AFE), which occurs when foetal antigens enter the maternal circulation.  The AFE probably caused Mrs Erasmus to suffer severe haemorrhaging and cardiac arrest, which in turn led to brain anoxia and eventually the irreversible brain damage.

Defences raised and distinction drawn with regard to the foreseeability requirement insofar as both negligence and legal causation are concerned.

7. The Court a quo found in favour of the Respondent and the Appellants appealed the judgment.  The Appellants persisted with only two defences in their appeal.

8. The first defence was that the Second Appellant was not negligent with regard to the consequences of the failed sterilization for which Mrs Erasmus sought to hold him liable. 

9. The Appellants relied on the concrete or relative approach to negligence as the basis for their defence, which approach does not require that the “precise nature and extent of the actual harm which occurred was reasonably foreseeable”. The Supreme Court went on further to comment that the relative approach need not require “reasonable foreseeability of the exact manner in which the harm actually occurred”. In effect, all that is required to establish negligence based on the relative approach is that the “general nature of the harm that occurred and the general manner in which it occurred was reasonably foreseeable”.

10. The Appellants argued that the harm which Mrs Erasmus actually suffered was not of a general kind reasonably foreseeable as AFE is an unpredictable and unpreventable event which occurs in about 1 out of every 8 000 to 30 000 deliveries. 

11. The Supreme Court of Appeal did not accept this argument.  In light of the expert testimony presented on behalf of Mrs Erasmus in the Court a quo, which was unchallenged by the Appellants, the Supreme Court of Appeal accepted firstly that “pregnancy was a generally foreseeable consequence of a failed sterilization”, and secondly that “pregnancy is a dangerous condition associated with a myriad of potential complications, one of which being AFE”.  As such, the Supreme Court of Appeal held that the AFE was reasonably foreseeable as a complication of pregnancy and concluded that the Second Appellant was therefore negligent with regard to the harm that Mrs Erasmus had suffered.

12. The second defence brought by the Appellants was that the causal nexus between the Second Appellant’s negligence and the harm suffered by Mrs Erasmus was too remote or not linked closely enough to the conduct (the failed sterilization) to hold the Appellants liable.

13. The element of causation involves two distinct enquiries, being factual causation and legal causation. In casu, the Supreme Court of Appeal held, by making use of the “but-for” test, that factual causation could be established. The matter of legal causation, however, required further consideration.

14. The purpose of the requirement of legal causation is to restrict the causal effect of the wrongdoer’s conduct so as not to create unlimited liability. In general, the Supreme Court of Appeal has opted for a “flexible umbrella criterion”, which determines the closeness of the link according to what is fair, reasonable and just. Our Courts decide the question of legal causation on the basis of a number of factors that relate essentially to public policy, the latter being informed by the values and principles enshrined in the Constitution.

15. The Appellants relied on the direct consequence theory with regard to legal causation and argued that Mr and Mrs Erasmus’ decision not to abort constituted a novus actus interveniens. The Supreme Court of Appeal, however, held that in order for the conduct of Mr and Mrs Erasmus to qualify as a novus actus interveniens, it had to be proved to be unreasonable. The Court found the conduct of Mr and Mrs Erasmus in their decision not to abort reasonable in light of the circumstances of the particular matter and, as such, the Appellants’ argument based on the principle of novus actus interveniens could not succeed. The Supreme Court of Appeal mentioned as obiter dictum that the parents’ decision not to abort may have been considered to be unreasonable were there any medical indications that parturition could be accompanied by any risks or complications.

16. The Appellants further relied on the reasonable foreseeability test with regard to legal causation, in that expert evidence showed that “the complication of AFE that led to the harm was so rare that it would not have been foreseen by the reasonable surgeon”. The Court in this instance accepted that foreseeability played a role in determining the issue of legal causation, the definition of which should be distinguished between its application in the context of negligence versus causation.

17. As already mentioned, the Supreme Court of Appeal held that the test for foreseeability with regard to negligence encompassed harm of a general kind, whereas with regard to legal causation foreseeability of the actual harm (as opposed to harm of a general kind) was required. On this basis the Court accepted that “because of the unforeseen intervention of AFE, the actual harm suffered by Mrs Erasmus was not a reasonably foreseeable consequence of Second Respondent’s negligence”.

18.  The Court, however, went on to hold that, on the other hand, AFE was not unknown to medical science and was therefore not the kind of “freakish occurrence” that has never happened before and will not happen again in future.

19. Ultimately, the Supreme Court of Appeal concluded that, taking into account all the circumstances of the particular case, considerations of reasonableness, justice and fairness dictated that the Appellants should be held liable for the harm suffered by Mrs Erasmus. The Supreme Court of Appeal consequently dismissed the appeal with costs.

Conclusion

20. In light of the Supreme Court of Appeal’s decision in this matter, the question can be asked whether a medical practitioner may also be held liable for damages resulting from complications suffered during pregnancy following a failed sterilisation. An example would be if the mother has to remain bedridden for an extended period of time during pregnancy, as a result of which she suffers damages in the form of medical expenses and a loss of income.

21. Moreover, if the baby in casu survived but suffered harm during birth as a result of the AFE, such as cerebral palsy, would the medical practitioner responsible for the failed sterilisation have been held liable for the additional damages relating to the disability over and above a claim for the normal financial costs expected from the support of a healthy child?

22. As mentioned before, the purpose of the requirement of legal causation is to prevent unlimited liability on the part of the wrongdoer. It would appear from the judgement under consideration that our Courts’ application of said requirement has become more lenient in favour of Plaintiffs, resulting in an extended liability on the part of wrongdoers.

Written by: Annelize Hefer, Director, Markram Incorporated Attorneys

Sheila-Ann Roos, Attorney, Markram Incorporated Attorneys