The parents of a now 6-year-old child have instituted a damages claim against a gynecologist, claiming the mother believed she could not fall pregnant due to the medical specialist's alleged failure to sterilise her.
The parents are seeking R5 million from the doctor based on patrimonial loss arising from their duty to support their child. They argue that the child, born in May 2018, was the result of the doctor's failure to perform the sterilisation procedure.
Their claim is based on an alleged breach of contract or, alternatively, delict. Meanwhile, the doctor filed a special plea, arguing that the claim had lapsed since the parents had three years to institute their claim, after which it would fall outside the legal time frame.
The key issue before the Bloemfontein High Court is whether the parents issued summons against the doctor outside this three-year period.
The court's focus is on determining when the claim should have been filed—whether it was at the time the mother fell pregnant or only after the child's birth.
The parents contend that they were correct in filing their summons only after the birth of their child. Conversely, the doctor maintains that the mother should have initiated her claim once she learned she was pregnant.
In their summons, the parents claim the R5 million in respect of what they believe it would cost to raise their child, stating this constitutes "pure economic loss arising from the first plaintiff’s (the mother’s) alleged wrongful pregnancy."
They assert that she was meant to be sterilised by the doctor in January 2022—over two years before the child's birth.
The parents hold the doctor responsible for breach of agreement regarding the sterilisation procedure, as well as an alleged breach of duty of care.
The doctor argued that the parents' debt became due on the date of the alleged breach of contract (January 2016) or the date the child was conceived.
Furthermore, he contended that their debt became due on the date they incurred expenses related to the pregnancy.
In January 2018—four months before the child's birth—the parents confronted the doctor, claiming he failed to perform the sterilisation procedure.
The doctor argues that they should have issued their summons at that point, as they had already incurred expenses for the conceived child.
However, the parents only served their summons in April 2021, over three years after the debt had arisen.
According to the parents, prior to the child's birth, the doctor had no legal obligation to cover any child-raising expenses, as the child was still a foetus. Their stance is that their duty to maintain the child only arose on the date of birth.
Judge President Johannes Daffue, however, ruled in favour of the doctor, stating that the claim had lapsed. He noted that the parents were fully aware of the facts since January 2018 and should have instituted their damages action within three years from that date.
As a result of this technicality, the parents cannot proceed with their claim.
Pretoria News