At 218 he summarised jouberts comments on the case

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Unformatted text preview: date of its injuries. [30] Similar views have been expressed by academic commentators in South Africa, notably Professor PQR Boberg, whose views were first set out in a note he wrote on Pinchin’s case in the 1963 volume of the Annual Survey of South African Law at pp 216-219. At 218 he summarised Joubert’s comments on the case and continued: ‘The difficulty about Joubert’s analysis is that it does not explain the process by which the conclusion is reached that the delict has been committed against a living child only after its birth. Delictual liability does not stem from damage alone: it only arises when such damage has been caused by an invasion of legal rights, or wrongful act. The only act to which the injuries presently involved can be traced was one committed before the child’s birth. Against whom was it wrongful: the child, the foetus, or, if before conception, what? As Joubert denies the relevance of the nasciturus rule, he would, presumably, say that the act was wrongful against the child. To equate this situation, as he does, with the example of the time-bomb, is, however, not permissible. When 20 the bomb is placed in the room no damage is suffered and hence no delict is committed. It is only when the bomb explodes that a delict is committed, and by then the child has been born. Thus if the “bomber” were to repent of his deed and remove the bomb before it exploded there would be no liability. On the other hand, pre-natal injuries are already sustained by the child in the womb while not yet a legal person. No arrangement of circumstances has taken place which only injures him upon his emergence into the world. Thus if a delict has been committed at all, was it not committed against the unborn child who was not at that stage a person? Possibly Joubert’s answer would be that, as legal personality is essential to an invasion of rights, the delict only arises when the rights are created, i.e. on birth. But how does one escape the fact that the actual invasion took place some time before, when there were no rights? It is submitted that the recognition of an action for pre-natal injuries is logically impossible without the conferment of legal rights, and hence legal personality, upon the unborn child, as achieved by the nasciturus rule. (See the remarks of Greenberg J in Stevenson N.O. v Transvaal Provincial Administration, 1934 TPD 80 at 85).’ [31] Part of the answer to this contention was, in my view, given by Phillips J in the court a quo in de Martell v Merton and Sutton Health Authority [1992] 3 All ER 820 (QBD) when he said (at 832ab): ‘In law and in logic no damage can have been caused to the plaintiff before the plaintiff existed. The damage was suffered by the plaintiff at the moment that, in law, the plaintiff achieved personality and inherited the damaged body for which the defendants (on the assumed facts) were responsible. The 21 events prior to birth were mere links in the chain of causation between the defendants’ assumed lack of skill and care and the consequential damage to...
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This document was uploaded on 02/12/2014.

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