7 in concluding that a child has an action for

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Unformatted text preview: ries’ published in 40 ALR 3ed pp 1222 et seq. [7] In concluding that a child has an action for injuries sustained while a foetus, Hiemstra J applied the so-called nasciturus fiction derived from Roman law to the effect that an unborn child, if subsequently born alive, is considered as already in existence whenever its own advantage is concerned (see, eg, Digest 1.5.7), holding that this rule not only applied to questions of succession and status but could also be extended to the law of delict. In coming to this conclusion he strongly relied inter alia on Montreal Tramways Co v Léveillé (1933) 4 DLR 337 (SCC), a decision of the Supreme Court of Canada in an appeal from Quebec, and the article by Sir Percy Winfield to which I have already referred. [8] The ratio of his judgment on the point presently at issue appears at 260 A-C, as follows: ‘I hold that a child does have an action to recover damages for pre-natal injuries. This rule is based on the rule of the Roman law, received into our law, that an unborn child, if subsequently born alive, is deemed to have all the rights of a born child, whenever this is to its advantage. There is apparently no 7 reason to limit this rule to the law of property and to exclude it from the law of delict.’ [9] The Pinchin case was an action brought under s 11 of the Motor Vehicle Insurance Act 29 of 1942 which, as far as was material, provided that a registered insurance company (such as the defendant in that case) had to compensate ‘any person whatsoever (in this section called the third party) for any loss or damage which the third party has suffered as a result of (a) any bodily injury to himself; (b) the death of or any bodily injury to any person, in either case caused by or arising out of the driving of the insured vehicle …’ (As can be seen this section was in pari materia with Article 40 of the MMF Agreement.) [10] Having pointed out (at 256A) that the word ‘person’ was not defined, Hiemstra J said that it had therefore to bear ‘its ordinary common law meaning’. He continued: ‘Whether the foetus is a “person” or not, seems to me to be irrelevant if the legal fiction applies that it is to be regarded as if it is already born whenever this should be to its advantage.’ He accordingly held that the plaintiff’s minor son had an action under s 11 of Act 29 of 1942. 8 JUDGMENT IN COURT A QUO [11] In his judgment in the court a quo Froneman J accepted that the Pinchin decision was correct and that, as he put it: ‘ … the Act and the common law must therefore be approached in the context of the qualified principle set out above, namely to regard, when appropriate, a foetus as a person when upon birth it is to his or her advantage. The real and difficult question is to determine when the circumstances are appropriate and when they are not.’ [12] The learned judge held that it was appropriate to apply the nasciturus rule in this case. Among the factors which led him to this conclusion was the fact that Act 93 of 1989 was ‘… social legislation aimed at the widest possible protection and compensation against loss and damages for the negligent driving of a m...
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This document was uploaded on 02/12/2014.

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