Joubert stated that the minors claim was based on the

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Unformatted text preview: solution to the legal problems in the Pinchin case was to be found in the ordinary principles of liability for delict, without having to have recourse to an artificial extension of the nasciturus rule. Joubert stated that the minor’s claim was based on the damage he or she had suffered not as a foetus but as a living born person, as persona iuris. The fact that the act that caused the damage, in this case the negligent driving of the vehicle which collided with the child’s mother, had happened before the birth was irrelevant. To illustrate his point he gave several examples, including the following: a person is injured by the explosion of a timebomb placed in a room before he was born. Obviously he would have a claim even though he was not born when the act which caused the damage took place. In support of his views he referred to a decision of the Federal Supreme Court in West Germany, reported in Neue Juristische Wochenschrift 1953, I 418. In this case, an English translation of which (by Kurt Lipstein) is given in Markesinis op cit 130-133, the plaintiff child, who was born with congenital syphilis, sued the hospital at which her mother had, before the plaintiff was conceived, received a blood transfusion as 14 a result of which she contracted syphilis. The plaintiff’s claim against the hospital was based on s 823 I of the BGB, which provides as follows: ‘A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom, property or other right of another is bound to compensate him for any damage arising therefrom.’ (The translation is taken from Von Mehren and Gordley The Civil Law System 2ed p 557.) The hospital contended that s 823 I of the BGB did not apply ‘because at the time when the act causing damage occurred, the plaintiff had not even been conceived’. The Federal Supreme Court rejected this argument, saying (op cit 133): ‘It is not possible … to agree with the appellant who argues that s 823 I presupposes the existence of a physical person and that it cannot therefore be applied to injuries affecting those who were not yet conceived when the tort was committed, since in such a case “another person” in the meaning of s 823 I BGB does not exist … [T]he plaintiff was conceived in the body of the mother who suffered from syphilis and developed in it as a human being affected by syphilis by absorbing the illness. This would not have happened without the tortious act or omission of the defendant; in short without it she would not have become a person suffering from syphilis. The object of the argument is thus not damage to a foetus or to an unborn child, but the damage which the plaintiff has suffered by the fact that she was born a sick person affected by syphilis. As stated before, her damage is 15 connected by a link of adequate causation with the infection with syphilis of her mother by the defendant. This damage was suffered by the plaintiff when she was born and constituted an injury to her health. Thus the conditions of s...
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This document was uploaded on 02/12/2014.

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