Her child will have a claim for loss of support when

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: 823 I BGB exist for allowing the claim.’ [21] 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. DISCUSSION [22] 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. [23] 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. [24] 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.’ [25] 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...
View Full Document

This document was uploaded on 02/12/2014.

Ask a homework question - tutors are online