5 the second basis for the special plea is an

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Unformatted text preview: d to compensation. [5] The second basis for the special plea is an averment that ‘a foetus in utero is not in law regarded as a person and in the circumstances the insured driver cannot be said to have owed a duty of care to ZUKHANYE.’ 4 EARLIER DECISION ON ISSUE RAISED IN THIS CASE [6] Some of the legal issues which arise in this case came before this court for decision in August 1963 when an appeal from the judgment of Hiemstra J in Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) was argued. This court was satisfied that Hiemstra J had correctly decided that the plaintiffs in the case before him had not succeeded in proving that the injuries which the mother sustained in the collision which gave rise to that case had caused cerebral palsy from which her child born subsequent to the collision was suffering. It was thus unnecessary for this court to decide whether Hiemstra J was right in holding that a child has an action in our law to recover damages for pre-natal injuries. See Pinchin and Another NO v Santam Insurance Co Ltd 1963 (4) SA 666 (A). Hiemstra J’s judgment in Pinchin’s case has been quoted with approval in judgments in Australia (see Watt v Rama [1972] VR 353 (FC), a decision of the Supreme Court of Victoria, at 360), and in England (see Burton v Islington Health Authority; de Martell v Merton and Sutton Health Authority [1992] 3 All ER 833 (CA) at 840f-g). It has also been discussed in leading textbooks published in Australia (see Fleming The Law of Torts 9 ed p 182) and England (see Charlesworth and Percy on Negligence 10 ed p 88). Most of the legal review articles in which it 5 has been discussed are listed in what amounts to a monograph on the legal issues arising for decision in this case, published as a footnote (footnote 15 on pp 33 to 38, presumably the longest footnote in South African legal history) in Boberg’s Law of Persons and the Family 2 ed. In an earlier footnote (footnote 12 at pp 3233) it is pointed out that the problem arising for consideration in this case is an international one and reference is made to ‘the vast literature on this vexing subject’. Two contributions are singled out for particular mention, the article by Sir Percy Winfield ‘The Unborn Child’ published in (1942) 8 Cambridge LJ 76 and the dissertation by David A Gordon SC ‘The Unborn Plaintiff’ published in (1965) 12 J of Forensic Medicine 111 and 152, (1966) 13 J of Forensic Medicine 23 (an abridged version of this dissertation, published in (1965) 63 Mich L Rev 579, was cited in Watt v Rama supra at 358). To the extensive list of writings on the topic listed in the second edition of Boberg I wish merely to add references to articles by PA Lovell and RH Griffith-Jones (1974) 90 LQR 531 and Professor Peter F Cane (1977) 51 Australian LJ 704; the doctoral dissertations by PC Smit Die Posisie van die Ongeborene in die Suid Afrikaanse Reg met Besondere Aandag aan die Nasciturus-Leerstuk (1976, University of the Orange Free State) and PJJ Olivier Legal Fictions: an Analysis and Evaluation (1973, 6 University of Leiden) pp 119-123 and 153-4; the translated materials collected and annotated by Sir Basil Markesinis in A Comparative Introduction to the German Law of Torts 3 ed pp 3940 and 130-142, and the annotation on ‘Liability for Pre-Natal Inju...
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This document was uploaded on 02/12/2014.

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