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It may be that if the child was still born or if the

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Unformatted text preview: er as a living foetus that by a fiction can be looked on as a person nor as a living person, then there is no entity or persona in whose favour respondent could have incurred obligations at that time. The appellant would therefore have claimed damages in respect of this minor as well, immediately upon the death of the deceased. It may be that if the child was still-born or if the foetus miscarried, no claim in respect of this minor may have arisen. But on the date of its birth the claim for future maintenance based on its expectation of life would have lain and there seems no difference in principle between such a claim and a claim in respect of an unborn but living foetus. In the former case there is the possibility that the living child may not live another day, in the latter that a like fate may befall a living foetus. I think therefore that this point also fails and that the appeal must be dismissed with costs.’ [35] The conclusion to which the court came cannot in my view be faulted if it is correct, as Greenberg J said, that ‘it is only by the aid of the fiction that this minor has a cause of action at all’. I do not, however, think that that statement is correct. On the ordinary principles of the law of delict, unlawfulness and damages must not be conflated. As Cannon J said in Montreal Tramways, each is a separate element for delictual liability. No cause of action arose, in my view, until Stevenson’s posthumous child was born. The application should accordingly have been granted. [36] Although it was averred in the special plea that the insured driver did not owe a duty of care to Zukhanye, counsel for the 24 appellant (very correctly, in my view) addressed no submission to us on this point. In our law, for the element of wrongfulness to be present, there has to be a breach of a legal duty (a term to be preferred to the expression derived from English law ‘duty of care’, the use of which can lead to confusion: see Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27E)). [37] The assertion that the driver did not owe Zukhanye a legal duty because she had not yet been born must clearly be rejected in the circumstances. In my opinion the point was well answered by Fraser J of the High Court of Ontario in Duval v Seguin (1972) 26 DLR (3d) 418 in a passage cited with approval by Dillon LJ in the Burton case at 842c-d, as follows: ‘Ann’s mother [Ann was the child en ventre sa mère at the time of the collision] was plainly one of a class within the area of foreseeable risk and one to whom the defendants therefore owed a duty. Was Ann any the less so? I think not. Procreation is normal and necessary for the preservation of the race. If a driver drives on a highway without due care for other users it is foreseeable that some of the other users of the highway will be pregnant women and that a child en ventre sa mère may be injured. Such a child therefore falls well within the area of potential danger which the driver is required to foresee and take reasonable care to avoid.’ [38] Finally I wish to say something about the floodgates argument. It is certainly true that the judgment in Bonbrest v Kotz 25 supra, which initiated the reversal in attitude of the American courts on the point, may be said to have opened the floodgates of litigation regarding pre-natal injuries, leading to claims on the part of the estates of stillborn infants and i...
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