Afrox Healthcare (Pty.) Ltd. v. Strydom

The Appellant was the owner of a private hospital that had admitted the Respondent for an operation. Following the operation, the Respondent suffered some complications as a result of the negligent conduct of a nurse in the employ of the Appellant. Respondent sued the Appellant for damages. In the Supreme Court of Appeal, the Respondent contended that the contract concluded by the parties contained a tacit term providing that the Appellant’s nursing staff would treat him in a professional manner and with reasonable care. Respondent thus argued that a breach of contract had occurred as a result of the nurse’s negligent conduct.

At the centre of the dispute was an admission document signed by the Respondent that contained an exemption clause, which absolved the hospital and/or its employees and/or agents from all liability, except for an intentional act or omission by the hospital, its employees or agents. The Appellant relied on this clause in order to avoid liability.

The Respondent argued that the clause was contrary to public policy and that there was a legal duty on the part of the Respondent’s employees to draw his attention to such a clause, which was not done. The Respondent further argued that the clause in question was such that it exempted the Appellant even from the gross negligence of its nursing staff, which was contrary to the public interest. He further relied on the provisions of section 39(2) of the Constitution, which obliges every court, when developing the common law, to promote the spirit, purport and object of the Bill of Rights. According to the Respondent, the clause flouted this principle in that it denied the Respondent access to medical care. In the alternative, he asserted that the clause was unenforceable as it was unreasonable, unfair and in conflict with the principle of bona fides or good faith. The Respondent alternatively argued that he was unaware of the clause, as he did not read it before signing.

The High Court decided the matter in favor of the Respondent. The Appellant took it on appeal.

The Court considered whether upholding the exclusionary clause, which absolved the hospital and/or its employees and/or agents from all liability, except for an intentional act or omission by the hospital, its employees or agents, conflicted with the public interest. It also considered whether the Constitution governed a contractual stipulation that was concluded prior to its promulgation.

The Court stated that, in terms of the common legal approach, exclusionary and indemnity clauses should be interpreted restrictively. The Court highlighted that the same standard that is applied to other contractual terms applies in respect of such clauses. Clauses that are found to be contrary to public policy, however, are ordinarily declared invalid.

The failure of the Respondent to rely on the gross negligence of the Appellant’s nursing staff in his pleadings counted against him in that this aspect was not left for determination by the Court. The Court, however, emphasized that even if gross negligence was expressly excluded it did not automatically mean that the clause was invalid.

With regard to direct damages, the Court stated that the Constitution did not operate retrospectively. The Court stated, however, that it was important to have regard to the values underpinning the Constitution in addressing the question of whether a particular contractual provision was contrary to the interest of the community.

The Court reversed the decision of the High Court and held that persons who do not read contracts before signing them do so at their own risk and are bound by the stipulations therein. The only exception noted by the Court was where there exists a clear legal duty on one of the parties to draw a specific provision to the attention of the other party. In holding so, the Court sought to protect the principle that contracts entered into between consenting adults, of their own free will, must always be enforced.

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