Unlawfulness and damages

cannot be merged into one.

They are separate elements of
delictual liability and
must both be present for a delict
to have taken place. For
wrongfulness to be present there
must be a breach
of a legal duty.
The judge says that a driver
does owe a duty of care to an
unborn child since there is a
“foreseeable risk”
that a mother might be pregnant
with a child and therefore a
legal duty is owed to both of
them.
The appellant also argued that
allowing an infant to claim for
pre-natal injuries will open the
“floodgates” to
litigation and parents will start
claiming damages for their
stillborn children and children
who die after a
couple hours.
This will however not work in
our law since the right of action
only becomes complete when a
child is born
alive. A child who dies shortly
after birth will have their claim
for pre-natal injuries lapse
unless they have
already started proceedings.
Conclusion:
The special plea was dismissed.
It was decided that only the
principles of the law of delict
have to be present
for a child to claim for pre-natal
injuries and that the nasciturus
fiction is an unnecessary
extension
ROAD ACCIDENT FUND v MTATI 2005 (6) SA 215 (SCA)
Summary
Facts:
The appellant raised a special plea against a claim brought by the respondent. The respondent
claimed a
large amount of money from the appellant, alleging that a motor vehicle collision between a
negligent driver
and the respondent’s pregnant wife caused their baby to be born mentally retarded with brain
damages that
arose from the serious bodily injuries that the mother sustained because of the accident.
The appellant pleaded that the child is not entitled to compensation since it was not a ‘person’
according to
art 40 at the time of the collision. It was a foetus in utero. Therefore the driver cannot be said to
have owed a
legal duty of care towards the unborn child.
Legal Question:
Should a child’s right to claim for pre-natal injuries be allowed by using the nasciturus fiction or
by using
the ordinary principles of the law of delict?
Law Referenced:
Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W)
Application:
Some legal issues raised in this case already came before the court in the Pinchin v Santam case.
The court
was satisfied with Hiemstra’s judgement since there was not enough medical evidence to prove
that the pre-
natal injuries caused the post-natal condition of cerebral palsy. Hiemstra concluded that a child
has an action
for injuries sustained while a foetus by applying the nasciturus fiction.
The appellant in the Mtati case argued that the unborn child could not claim damages for injuries
suffered
pre-natally since it was not a person at the time of the collision.
The judge mentions how the legal problems in the Pinchin case might be solved by applying the
ordinary
principles of liability for delict, without having to add the artificial extension of the nasciturus
rule to the
situation. This is because the minor’s claims are based on the damage he/she suffered as a living
born person
and not a foetus.
It is further said that delictual liability does not stem from damage alone. Delictual liability only
arises when
when damage is caused by an invasion of legal rights – this is known as a wrongful act.
Causation can
happen long before the damages start to show.
The judge uses a time bomb example to illustrate this. A bomb can be planted hours before it
actually goes
off, but ONLY once it goes off is the wrongful act actually committed.
One cannot escape the fact that an invasion of rights can take place sometime before damages
occur.
Whether or not an action can mature depends on the claim. A delict only arises when rights are
created, in
other words: at birth.

Unlawfulness and damages

cannot be merged into one.
They are separate elements of
delictual liability and
must both be present for a delict
to have taken place. For
wrongfulness to be present there
must be a breach
of a legal duty.
The judge says that a driver
does owe a duty of care to an
unborn child since there is a
“foreseeable risk”
that a mother might be pregnant
with a child and therefore a
legal duty is owed to both of
them.
The appellant also argued that
allowing an infant to claim for
pre-natal injuries will open the
“floodgates” to
litigation and parents will start
claiming damages for their
stillborn children and children
who die after a
couple hours.
This will however not work in
our law since the right of action
only becomes complete when a
child is born
alive. A child who dies shortly
after birth will have their claim
for pre-natal injuries lapse
unless they have
already started proceedings.
Conclusion:
The special plea was dismissed.
It was decided that only the
principles of the law of delict
have to be present
for a child to claim for pre-natal
injuries and that the nasciturus
fiction is an unnecessary
extension