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.
 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).
 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
 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.
JUDGE OF APPEAL CONCURRING
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This document was uploaded on 02/12/2014.
- Spring '14