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Unformatted text preview: 823 I BGB exist for allowing the claim.’  Joubert pointed out that similar problems arise in our law as
regards the dependants’ action where, eg, a man is killed by the
negligent act of another at a time when his wife is pregnant. Her
child will have a claim for loss of support when he or she is born. In
this case also, he said, referring to the leading case of Chisholm v
East Rand Proprietary Mines Ltd 1909 TH 297, the nasciturus rule
had unnecessarily been invoked.
 The first question to be decided is whether Zukhanye has a
claim under Article 40 against the appellant for the damages
flowing from the disabilities from which she is suffering.
 I do not think it is possible to decide this question separately
from the question as to whether in our law she has an action for
ante-natal injuries. That this must be so flows from the fact that the
remedy created by Article 40 is the counterpart of and indeed the
substitute for the common law actions relating to damages for
bodily injury and loss of support caused by or arising from the
negligent driving of motor vehicles. Parliament could never have 16 intended Zukhanye, if the common law grants a child an action for
ante-natal injuries, to have to sue the driver of the vehicle which
collided with her mother.
 The next point to be made is that it would be intolerable if our
law did not grant such an action. On this part of the case I can do
no better than to quote what was said by Lamont J in the Montreal
Tramways case supra at 345, viz:
‘If a child after birth has no right of action for pre-natal injuries, we have a
wrong inflicted for which there is no remedy, for, although the father may be
entitled to compensation for the loss he has incurred and the mother for what
she has suffered, yet there is a residuum of injury for which compensation
cannot be had save at the suit of the child. If a right of action be denied to the
child it will be compelled, without any fault on its part, to go through life
carrying the seal of another’s fault and bearing a very heavy burden of
infirmity and inconvenience without any compensation therefor. To my mind it
is but natural justice that a child, if born alive and viable, should be allowed to
maintain an action in the courts for injuries wrongfully committed upon its
person while in the womb of its mother.’  The Montreal Tramways case was very influential in causing
American courts, which had previously denied an action for prenatal injuries, to change their stance on the matter. It was, for
example, cited with approval in Bonbrest v Kotz 65 F Supp 138
(DDC 1946), the first case in which it was held in the United States 17 (after a long line of cases from all over the United States, starting
with Dietrich v Northampton (1884) 138 Mass 14, 52 Am Rep 242,
a judgment of Oliver Wendell Holmes J, going the other way) that
there was an action, at least as far as concerned a claim for
injuries to a viable unborn child, brought by the child after its birth.
This led to what Prosser (Law o...
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This document was uploaded on 02/12/2014.
- Spring '14