In this regard counsel repeated the floodgates

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Unformatted text preview: quo had done, by finding that the word ‘person’ in the Act included a foetus in utero, it had failed to consider the effect of such extension on the law of delict in general. In this regard counsel repeated the ‘floodgates’ argument which had not impressed the court a quo. In elaborating this submission counsel referred to the Congenital Disabilities (Civil Liability) Act 1976 of the United Kingdom, which was based on the 11 recommendations of the English Law Commission published in its Report on Injuries to Unborn Children Law Com. No. 60, Cmnd 5709 (1974). He contended that the UK Act takes due account of what he called ‘the potential difficulties and inequities that could result from an uncontrolled right to claim damages sustained in utero’. In particular, he pointed out, the UK Act, in s 1(1), provides that a child born disabled as a result of an occurrence before his or her birth which affected either parent’s ability to have a normal healthy child, or affected the mother during her pregnancy, or affected her or the child in the course of his or her birth, so that the child is born with disabilities which would not otherwise have been present, will have an action against a person answerable in respect of the occurrence other than the child’s own mother. Section 2 of the UK Act provides that, in certain circumstances, there will also be an action against the child’s mother if the child’s disabilities arose from injuries sustained through, eg, the negligent driving of a motor vehicle by the mother. (The reason for this exception is that in such a case a statutory third party insurer will be liable to satisfy any judgment the child may succeed in obtaining against the mother, so that the exception is more apparent than real.) 12 [18] Counsel contended that the courts should accordingly leave the extension of the common law to provide a remedy for children who sustain pre-natal injuries to the legislature which, in framing a suitable remedy, will be able in a way the courts cannot, to qualify the remedy provided so that, for example, it will not lead to a situation where children are able to sue their own mothers in respect of injuries they sustained while still in the womb. SUBMISSIONS ON BEHALF OF THE RESPONDENT [19] In arguing that the order made by the court a quo could not be faulted, counsel for the respondent submitted that Froneman J was correct in following the judgment in the Pinchin case and applying the nasciturus rule to the facts of this case. In the alternative he submitted that the appellant’s argument contained implied propositions that compensation is only payable in terms of Article 40 in circumstances where the negligent driving (to confine the argument to the facts of this case) and the injuries suffered by Zukhanye occurred at the same time, and that she could not be compensated in this case for the injuries she sustained because she was not a person at the time when the negligent driving took place and when her mother sustained the injuries which led in turn to Zukhanye’s injuries. According to counsel, these propositions were unsound and contrary to principle. 13 [20] In this regard counsel relied on views expressed by the late Professor WA Joubert who, in a note on the Pinchin case published in (1963) 26 THR-HR 295, expressed the view that the...
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