Is a contractual agreement regarding indemnity of a hospital, it's personnel or agents enforceable when negligence occur.
This issue was addressed in the Afrox Healthcare v CG Strydom matter. (AFROX HEALTH BPK v STRYDOM (2002) 4 ALLSA 125 (SCA)
The Appellant is the owner of a private hospital. The Respondent was admitted to hospital for an operation and post operative care.
On admittance to the hospital an agreement was entered into between the patient and hospital.
According to the Respondent it was an implied term of the agreement that the Appellant's personnel should have treated the Respondent in a professional way with reasonable care.
After the operation complications occur as it was alleged that the nursing sister acted negligently as the Respondent`s blood circulation was cut off due to a bandage being wrapped too tight.
According to the Respondent the above constituted breach of contract by the Appellant and the Respondent suffered damages in the region of 2 million rand. The Respondent instituted action in the Transvaal Provincial Division for damages. The Appellant raised a defence based on an indemnity clause signed by the Respondent.
"Ek onthef die hospitaal en/of sy werknemers en/of agente van alle aanspreeklikheid en ek vrywaar hulle hiermee teen enige eis wat ingestel word deur enige persoon (insluitende `n afhanklike van die pasient) weens skade of verlies van watter aard ook al (insluitende gevolgskade of spesiale skade van enige aard) wat direk of indirek spruit uit enige besering (insluitende noodlottige besering) opgedoen deur of skade berokken aan die Pasient of enige siekte (insluitende terminale siekte) opgedoen deur die Pasient wat ook al die oorsaak/oorsake is, net met die uitsluiting van opsetlike versuim deur die hospitaal, werknemers of agente."
During the pre-trial conference the respondent admitted that his claim fell within the ambit of clause 2.2 and accordingly the Court was approached in terms of Rule 33 (4) to consider the enforceability of Clause 2.2.
The Respondent argued that clause 2.2 was not enforceable in that:
- It was against the public policy;
- Clause 2.2 was against the principle of good faith;
- There was a duty on the administration clerk to point out clause 2.2 to the Respondent.
On Appeal The Court Found That -
- The Court a quo erred in finding that there was an onus on the Appellant to show that the conditions contained in clause 2.2 was enforceable against the Respondent. (Durban's Water Wonderland Pty Ltd v Botha and Another 1999 (1)SA982(SCA))
- On appeal the said case in fact proved the opposite. This can be seen from the dictum of Scott AR 991 C-D
The respondent's claim was founded in delict. The appellant relied on a contract in terms of which liability for negligence was excluded. It accordingly bore the onus of establishing the terms of the contract. (The position would have been otherwise had the respondents sued in contract. See Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 762-767C).
The Appellant Division found that this case was in fact based on contract and not delict. The Hospital was not liable for damages.