Road Accident Fund v Mtati

• Jurisdiction: South Africa
• Citation: 2005 (6) SA 215 (SCA)

Road Accident Fund v Mtati
2005 (6) SA 215 (SCA)

2005 (6) SA p215

Citation	2005 (6) SA 215 (SCA)
Case No	332/2004
Court	Supreme Court of Appeal
Judge	Mpati DP, Zulman JA, Farlam JA, Van Heerden JA and Jafta JA
Heard	May 17, 2005
Judgment	June 1, 2005
Counsel	A D Schoeman (with B L Boswell) for the appellant.; A G Dugmore (with S Rugunanan) for the respondent.

Flynote : Sleutelwoorde B

Persons — Foetus — Injuries sustained by — Right of child to sue for prenatal injuries — Right of action only becoming complete after child born alive — Claim lapsing unless litis contestatio reached in subsequent action.

Delict — Action for damages — By child for prenatal injuries — Viability of C claim — Legal principles to be applied — Right of child to sue for prenatal injuries — Whether such action should be allowed by using nasciturus rule or by using ordinary principles of law of delict — Right of action only becoming complete after child born alive — Claim lapsing unless litis contestatio reached in subsequent action.

Motor vehicle accidents — Compensation — Claim for in terms of Multilateral Motor Vehicle Accidents Fund Act 93 of D 1989 — Injuries suffered by pregnant mother in motor vehicle accident having sequelae after birth — Whether child (foetus in utero at time of injury) to be regarded as 'person' entitled to compensation for brain damage resulting from injuries sustained by mother in collision caused by or arising out of negligent driving of motor E vehicle — Whether such has claim against under art 40 of Act for loss or damage suffered as result of such injury.

Headnote : Kopnota

The right of a child to sue for prenatal injuries is recognised in law, but the more difficult question is whether such an action should be allowed by using the nasciturus rule or by using 'the F ordinary principles of the law of delict'. The contention that the recognition of an action for prenatal injuries is logically impossible without the conferment of legal rights, and hence legal personality, upon the unborn child, as achieved by the nasciturus rule, is to be rejected. The damage is suffered by the plaintiff at the moment that, in law, the plaintiff achieves personality and inherits the damaged body for which the defendants are responsible. The G events prior to birth are mere links in the chain of causation between the defendants' assumed lack of skill and care and the consequential damage to the plaintiff. (Paragraphs [27] - [33], paraphrased at 224J - 226E.) On the ordinary principles of the law of delict, unlawfulness and damages are not to be conflated - each is a separate element for delictual liability. In our law, for the element of wrongfulness to be present, H there has to be a breach of a legal duty. (Paragraphs [35] - [36] at 227G - 227J.) The 'floodgates' scenario is not likely to arise in our law for several reasons. The right of action only becomes complete when the child is born alive. A claim of a prenatally injured child who dies shortly after birth lapses unless action has already been instituted and the proceedings have already reached the stage of litis contestatio in the case of the actio injuriarum and the I action for pain and suffering. Any claim the child might have for loss of expectation of life will be regarded as part of his or her claim for loss of amenities and will thus lapse on the child's death and the child will have no claim for loss of income during the 'lost years'. (Paragraphs [38] - [39] at 228C/D - H.) J

2005 (6) SA p216

Semble: As far as a possible claim by a child against its mother for pre-natal injuries is concerned, such a claim will only lie A if and to the extent that an enforceable legal duty on the part of the mother towards her child is recognised. (Paragraph [40] at 228H/I.)

The decision of Hiemstra J in Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) confirmed. The judgment of the Court a quo in Mtati v Road Accident Fund (unreported, ECD case No 1013/2001, 24 February 2004) upheld. B

Cases Considered

Annotations

Reported cases

Bonbrest v Kotz 65 F Supp 138 (DDC 1946): discussed

Burton v Islington Health Authority; De Martell v Merton and Sutton Health Authority [1992] 3 All ER 833 C (CA): dicta at 840f - g and 842c - d applied

Chisholm v East Rand Proprietary Mines Ltd 1909 TH 297: considered

Christian Lawyers Association of SA and Others v Minister of Health and Others 1998 (4) SA 1113 (T) (1998 (11) BCLR 1434): referred to

Christian League of Southern Africa v Rall 1981 (2) SA 821 (O): referred to

De Martell v Merton and Sutton Health Authority [1992] 3 All ER 820 (QBD): dictum at 832a - b applied D

Dietrich v Northampton 138 Mass 14, 52 Am Rep 242 (1884): referred to

Duval v Seguin (1972) 26 DLR (3d) 418 (Ont HC): discussed

Friedman v Glicksman 1996 (1) SA 1134 (W): referred to

Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 (2) SA 944 (C): dicta at 950 and 955 applied E

Knop v Johannesburg City Council 1995 (2) SA 1 (A): dictum at 27E followed

Lockhat's Estate v North British & Mercantile Insurance Co Ltd 1959 (3) SA 295 (A): referred to

Montreal Tramways Co v Leveille [1933] 4 DLR 337 (SCC): dictum at 345 applied F

Neue Juristische Wochenschrift (1953) I 418: discussed

Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W): considered, discussed and applied G

Pinchin and Another NO v Santam Insurance Co Ltd 1963 (4) SA 666 (A): explained

Potgieter v Sustein (Edms) Bpk 1990 (2) SA 15 (T): dictum at 21 - 22 applied

Stevenson NO v Transvaal Provincial Administration 1934 TPD 80: dictum at 85 overruled

Van Heerden and Another v Joubert NO and Others 1994 (4) SA 793 (A): considered

Watt v Rama [1972] VR 353 (FC): dictum at 360 discussed.

Statutes Considered

Statutes H

The Multilateral Motor Vehicle Accidents Fund Act 93 of 1989, Schedule, art 40: see Juta's Statutes of South Africa 1996 vol 4 at 3-199.

Case Information

Appeal against an order of the East London Circuit Local Division of the High Court (Froneman J) dismissing a special plea raised by the appellant against an action brought by the respondent on behalf of his minor daughter. The facts and issues appear from the I reasons for judgment handed down by Farlam JA, the remainder of the Court concurring.

A D Schoeman (with B L Boswell) for the appellant.

A G Dugmore (with S Rugunanan) for the respondent. J

2005 (6) SA p217

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: A

AA Mutual Assurance Association Ltd v Biddulph and Another 1976 (1) SA 725 (A)

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A) B

Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A)

B v Islington Health Authority [1991] 1 All ER 825 (QBD)

Barnard v Santam Bpk 1999 (1) SA 202 (SCA)

Blower v Van Noorden 1909 TS 890

Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA)

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995) C

Casserley v Stubbs 1916 TPD 310

Du Plessis and Another v Road Accident Fund 2001 (4) SA 1140 (N)

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) D

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1)

Fundstrust (Pty) Ltd (in Liquidation) v Van Deventer 1997 (1) SA 710 (A)

Geldenhuys & Joubert v Van Wyk; Van Wyk v Geldenhuys & Joubert 2005 (2) SA 512 (SCA) E

Hoban v Absa Bank Ltd t/a United Bank, and Others 1999 (2) SA 1036 (SCA)

Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A)

Masombuka v Constantia Versekeringsmaatskappy Bpk 1987 (1) SA 525 (T) F

Mineworkers Investment Company (Pty) Ltd v Modibane 2002 (6) SA 512 (W)

Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others 1990 (1) SA 925 (A)

Rivett-Carnac v Wiggins 1997 (3) SA 80 (C) G

Road Accident Fund v Sauls 2002 (2) SA 55 (SCA)

S v Collop 1981 (1) SA 150 (A)

S v Leeuw 1980 (3) SA 815 (A)

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665) H

S v Mokgethi 1990 (1) SA 32 (A)

Smit v Abrahams 1994 (4) SA 1 (A)

Stegen and Others v Shield Insurance Co Ltd 1976 (2) SA 175 (N)

Union & South West Africa Insurance Co Ltd v Fantiso 1981 (3) SA 293 (A) I

Boberg P Q R (1964) 81 SALJ 501

Van der Merwe N J (1963) 26 THRHR 291.

Cur adv vult.

Postea (June 1). J

2005 (6) SA p218

Judgment

Farlam JA: A

Introduction

[1] This is an appeal against the dismissal by Froneman J, sitting in the East London Circuit Local Division of the High Court, of a special plea raised by the appellant against a claim brought by the respondent, in his capacity as father and natural guardian of his minor daughter, Zukhanye Mtati, in terms of art 40 of the Agreement set B out in the Schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. (References in what follows to 'the Act' are references to Act 93 of 1989.)

Pleadings C

[2] In his particulars of claim the respondent claimed an amount of R1 365 580 from the appellant, alleging that a collision took place on 20 December 1989 in East London between a motor vehicle, which was being negligently driven at the time by one Dlalo, and the respondent's wife, who was a pedestrian. As a result of the collision, it was alleged, the respondent's wife, who was then D pregnant with Zukhanye, sustained serious bodily injuries. Zukhanye was born some five-and-a-half months after the collision. It is alleged in the particulars of claim that she has brain damage and is mentally retarded and that this brain damage and mental retardation arose out of E the injuries sustained by...