Afrox Healthcare Ltd v Strydom, an important case in South African contract law, was heard in the Supreme Court of Appeal (SCA) on May 13, 2002, with judgment handed down on May 31.
Facts
The appellant, Afrox Healthcare, was the owner of a private hospital. The respondent, Strydom, had been admitted to the hospital for surgery and post-operative medical treatment. On his admission, the parties concluded an agreement, of which it was a tacit term, according to Strydom, that Afrox's nursing staff would treat him in a professional manner and with reasonable care. The admission document, however, signed by Strydom during his admission to the hospital, contained an exemption clause, providing that he
absolved the hospital and/or its employees and/or agents from all liability and indemnified them from any claim instituted by any person (including a dependant of the patient) for damages or loss of whatever nature (including consequential damages or special damages of any nature) flowing directly or indirectly from any injury (including fatal injury) suffered by or damage caused to the patient or any illness (including terminal illness) contracted by the patient whatever the cause/causes are, except only with the exclusion of intentional omission by the hospital, its employees or agents.
After the operation, certain negligent conduct by a nurse led to complications which caused Strydom to suffer damages. Strydom argued that this conduct amounted to a breach of contract and instituted an action holding Afrox responsible for the damages.
Arguments
Afrox relied on the exemption clause to avoid liability for Strydom's damages. Strydom, in response, advanced several reasons why the provisions of the clause could not operate against him, contending
that it was contrary to the public interest; that it was in conflict with the principles of good faith or bona fides; and that it had been the legal duty of the admission clerk to draw his attention to the relevant clause. This had not been done.
The grounds on which Strydom based his reliance on the public interest were
the alleged unequal bargaining positions of the parties at the conclusion of the contract; the nature and ambit of the conduct of the hospital personnel for which liability was excluded; and the fact that Afrox was the provider of medical services.
Strydom alleged that, while it was Afrox's duty as a hospital to provide medical treatment in a professional and caring manner, the relevant clause went so far as to protect it from even gross negligence on the part of its nursing staff. This was contrary to the public interest.
Strydom argued further that the Constitution of the Republic of South Africa obliges every court, when developing the common law, to promote the spirit, purport and object of the Bill of Rights. In considering the question of whether or not a particular contractual term conflicts with the public interest, account must be taken of the fundamental rights contained in the Constitution. Strydom argued that the relevant clause conflicted with the spirit, purport and object of the constitutional guarantee of every person's right to medical care, and as such was in conflict with the public interest.
In the alternative, Strydom contended that, even if the clause was not in conflict with the public interest, it was still unenforceable, because unreasonable, unfair and in conflict with the principle of bona fides or good faith.
As a further alternative, he argued that he had, when signing the admission document, been unaware of the provisions of the clause. The evidence was that he had signed the document without reading it, even though he had had an opportunity to do so, but Strydom contended that the admission clerk had had a legal duty to inform him of the content of the clause and had failed to do so. Strydom's reason for alleging such a duty was that he did not expect a provision of that kind to be found in an agreement with a hospital.
A Provincial Division found for Strydom.