Sonny and Another v Premier of the Province of Kwazulu-Natal and Another (4026/2003) [2009] ZAKZPHC 33; 2010 (1) SA 427 (KZP) ; [2010] 1 All SA 169 (KZP) (7 August 2009)

Sonny and Another v Premier of the Province of Kwazulu-Natal and Another (4026/2003) [2009] ZAKZPHC 33; 2010 (1) SA 427 (KZP) ; [2010] 1 All SA 169 (KZP) (7 August 2009)

The court found that the medical staff at Addington Hospital and Clare Estate clinic failed to properly inform and counsel the second plaintiff, a high-risk patient, regarding the necessity and urgency of a re-scan following an inconclusive ultrasound. The attending doctor should have foreseen the risk of the patient not returning and the possibility of miscommunication at the clinic. The failure to provide clear written instructions and adequate warning constituted negligence. This negligence was causally linked to the birth of a child with Down Syndrome, as the plaintiff was deprived of the opportunity to terminate the pregnancy. The court rejected the first defendant's version and...

Citation
[2009] ZAKZPHC 33
Parties
Plaintiff: Kishore Sonny; Plaintiff: Jayanthie Devi Sonny; Defendant: Premier of the Province of Kwazulu-Natal; Defendant: eThekwini Municipality
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
7 August 2009
Case Number
4026/2003
Procedural Posture
Civil Action / Trial Judgment on Liability
Outcome
The first defendant is liable to the plaintiffs for any damage arising from the birth of the child on 16 November 2002. The first defendant is absolved from liability regarding the sterilisation claim. Costs are awarded to the plaintiffs, jointly and severally with the second defendant up to 1 December 2008.
Judges
Levinsohn DJP
Legal Topics
Medical Negligence, Informed Consent, Wrongful Birth, Duty of Care, Causation, Public Health Liability
Delict Civil Procedure Family and Children Medical Negligence Informed Consent Wrongful Birth Duty of Care Causation +1 more

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Parties

Kishore Sonny

Plaintiff

Jayanthie Devi Sonny

Plaintiff

Premier of the Province of Kwazulu-Natal

Defendant

eThekwini Municipality

Defendant

Procedural Posture

Civil Action / Trial Judgment on Liability

Legal Issues

  1. 1 Whether the medical professionals at public health facilities breached their duty of care to the plaintiffs during the pregnancy.
  2. 2 Whether the failure to properly advise and monitor the second plaintiff constituted negligence causally linked to the birth of a child with Down Syndrome.
  3. 3 Whether the sterilisation procedure (tubal ligation) was performed without informed consent and was wrongful.

Ratio Decidendi

The court found that the medical staff at Addington Hospital and Clare Estate clinic failed to properly inform and counsel the second plaintiff, a high-risk patient, regarding the necessity and urgency of a re-scan following an inconclusive ultrasound. The attending doctor should have foreseen the risk of the patient not returning and the possibility of miscommunication at the clinic. The failure to provide clear written instructions and adequate warning constituted negligence. This negligence was causally linked to the birth of a child with Down Syndrome, as the plaintiff was deprived of the opportunity to terminate the pregnancy. The court rejected the first defendant's version and...

Court Disposition

The first defendant is liable to the plaintiffs for any damage arising from the birth of the child on 16 November 2002. The first defendant is absolved from liability regarding the sterilisation claim. Costs are awarded to the plaintiffs, jointly and severally with the second defendant up to 1 December 2008.

Orders

  • The first defendant is liable to the plaintiffs for damages arising from the birth of the child on 16 November 2002.
  • The first defendant is absolved from liability in respect of the sterilisation claim.