39 problems of that kind are not likely to arise in

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Unformatted text preview: nfants who died shortly after being born (details can be found in the annotation in 40 ALR 3d 1222 to which I have referred above) and also to claims by children against their mothers for the infliction of pre-natal injuries (a topic dealt with in an annotation published in 78 ALR 4th 1082), a problem which, as we have seen, is addressed in the UK Act. [39] Problems of that kind are not likely to arise in our law for several reasons. First, the right of a child to sue for pre-natal injuries recognised in this judgment is expressly based on the holding that the right of action only became complete when the child was born alive. Secondly, a claim of a pre-natally injured child who dies shortly after birth lapses unless action has already been instituted and the proceedings have already reached the stage of litis contestatio in the case of the actio injuriarum and the action for pain and suffering (see Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944(C) at 950 and 955 and Potgieter v Sustein (Edms) Bpk 1990 (2) SA 15 (T) at 21-22). Thirdly, any claim the child may have for loss of expectation of life will be regarded as part of his or her claim for loss of amenities 26 (Corbett The Quantum of Damages in Bodily and Fatal Injury Cases Vol 1 4 ed by JJ Gauntlett SC, p 45) and will thus lapse on the child’s death and the child will have no claim for loss of income during the ‘lost years’: see Lockhat’s Estate v North British & Mercantile Insurance Co Ltd 1959 (3) SA 295 (A). [40] As far as a possible claim against a child’s mother for prenatal injuries is concerned, such a claim will only lie if and to the extent that an enforceable legal duty on the part of the mother towards her child is recognised, a matter on which no opinion need be expressed at this stage. CONCLUSION AND ORDER [41] In the circumstances, I am satisfied that the special plea was correctly dismissed by the court a quo and the appeal must fail. The following order is made: The appeal is dismissed with costs, including those occasioned by the employment of two counsel. ……………. IG FARLAM JUDGE OF APPEAL CONCURRING MPATI ZULMAN VAN HEERDEN JAFTA DP JA JA JA...
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This document was uploaded on 02/12/2014.

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