Case Summary: Pinchin and Another NO v Santam Insurance Co Ltd
This case
featured a dispute surrounding a woman whose baby was born with brain damage
after a car accident she was involved in while she was pregnant. The case
summary attempts to follow the basic FIRAC rubric and includes as much
pertinent information as possible. It is, however, not a substitute for
self-study. We're only trying to help. Good luck! 😉✌ (Tip:
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Facts
- A
pregnant woman was involved in a car accident caused
by the defendant’s negligence;
- After
birth, the child was found to be suffering from
serious brain damage;
- Compensation
was claimed from the defendant on the child’s behalf; however, at the time
of the defendant’s acts, the child was in ventre matris (had
no legal personality and no legally protected interests that could be
infringed).
Issues
One: Does
a person have an action in respect of injury inflicted on him while he was
still a foetus in his mother's womb?
Two: Is the
foetus a ‘person’ for the purposes of sec. 11 of the Motor Vehicle
Insurance Act, 29 of 1942?
Three: Does
the nasciturus fiction apply outside the law of property and include the law of
delict?
Rules
Aquinas: 'right
presupposes that in the first place man should be there. Before you can have a
right, you must be';
Grotius: 'a child in
the womb is regarded as born if it is to its advantage, and not when it would
be to its disadvantage';
Legislation: Sec. 11
of the Motor Vehicle Insurance Act, 29 of 1942 re compensation for
damage suffered by a ‘person’
Roman Law - An unborn
child, if subsequently born alive, will acquire all of the rights of a born
child, whenever this is to his or her advantage (Nasciturus fiction)
International precedent - Montreal
Tramways Co v Léveillé, (1933) 4 D.L.R. 337 (Canada); Walker v G.T.N.
Railway Co. of Ireland, (1891) 28 L.R. (Ir.) 69 (Ireland)
Texts – Mckerron: Law of Delict, 5th ed.; Marthinus Versfeld: Acta Juridica.
Analysis
In its consideration of the
passages from Aquinas, Grotius and the like, the court stated that these
passages are not of general application and are not always decisive because
they usually refer to the law of succession and answer questions of status, as
opposed to questions related to the law of delict. However, it was made clear
that the nasciturus fiction is clearly part of our law and that, therefore,
there was no need to consider the point of whether or not a foetus counts as a ‘person’
or not for the purposes of sec. 11 of the MVA.
Though the nasciturus
fiction was stated and acknowledged, the court reasoned that, in the particular
circumstances of this case, it was unnecessary to apply the nasciturus fiction
because the wrongful act and its consequences were separate in both time and
space. The defendant’s act (at the time of the accident) resulted in a harmful
consequence much later (when the child was born with injuries). The legal
subject came into being at birth and only then did the act bring about a
harmful consequence. Therefore, the child need not have had legal capacity at
the time of the act.
Hiemstra J went on to state
that there is no viable reason why a foetus should be treated as a person for
the sake of property but not for the sake of ‘life and limb’ (at p259):
I see no
reason for limiting the fiction in this way, and the old authorities did not
expressly limit it. It is probably because the state of medical knowledge
at the time did not make it possible to prove a causal link between pre-natal
injury and a post-natal condition, that it did not occur to them to deal with
this situation. Would there be an action in the case of dolus? It
seems impossible to deny it.
Notwithstanding the
foregoing, the plaintiff was unable to prove her case on a balance of
probabilities due to insufficient medical evidence.
Holding
It was held that a child has an action to recover
damages for pre-natal injuries.
It was held further that the nasciturus fiction includes
the law of delict.
For aforementioned reasons, the court ordered absolution from the instance.🍎
