Dutton - Medical Malpractice in SA

40
Medical Malpractice in South African Law
such an action, 62 and would result in a wrong being inflicted for which there is
no remedy. The Court then dealt with the more difficult question of whether
such an action should be allowed by using the nasciturus rule 63 or by using the
‘ordinary principles of the law of delict’. 64
The Appellate Division had indicated in an obiter remark in Pinchin v Santam
Insurance Co Ltd 65 that injury to a foetus in ventre matris is actionable, in principle, on
the operation of the nasciturus fiction. 66 However, the application of the nasciturus
rule would provide no solution in cases where the injury to the child took the form
of conduct which occurred before conception (usually in circumstances where the
mother had been injured, such as where she was negligently infected with syphilis
or, it is submitted, HIV). The Court held that such cases cry out for a remedy, and a
theory which denies one should not be accepted. 67 The Court applied the ‘ordinary
principles of the law of delict’ and reiterated that the elements of unlawfulness
and damage must not be conflated. Each is a separate element for delictual liability.
Therefore, no cause of action arises until the child is born, at which point the
child acquires the rights of personhood, and the cause of action is complete because
the unlawful conduct (injury to the foetus) had resulted in the consequence of an
injury to a person (the child who was born alive). The assertion that the driver did
not owe the unborn child a legal duty because he or she had not yet been born was
rejected, but subject to the almost universally accepted limitation 68 that, although
foetal interests may be established while in utero — or even before conception — they
cannot be realised unless the foetus is born alive and attains an existence separate
from that of its mother. 69
62
And thereby adopted the almost universally accepted approach that the foetus has a strong
interest in not being injured by the wrongful act of a third party, but subject to the limitation
that these interests cannot be realized unless the foetus is born alive (see e g the Canadian position:
Duval v Seguin (1973) 40 DLR (3d) 666; Australian: Watt v Rama [1972] VR 353; England and
Wales: Burton v Islington Health Authority, De Martell v Merton and Sutton Health Authority [1992] 3
All ER 833). The question remains whether the criminal law should be invoked as a direct means
of foetal protection (see S v Mshumpa 2008 (1) SACR 126 (E) at 48 ff).
63
That an unborn child is deemed born if doing so is in its interest: Pinchin v Santam Insurance
Co Ltd 1963 (2) SA 254 (W) at 260.
64
RAF v Mtati 2005 (6) SA 215 (SCA) at [27].
65
1963 (2) SA 254 (W).
66
That is, that an unborn child is deemed born if it is in its interests.
67
RAF v Mtati 2005 (6) SA 215 (SCA) at [33].
68
For an international comparison see esp: Duval v Seguin (1973) 40 DLR (3d) 666 (Canada);
Watt v Rama [1972] VR 353 (Australia).
69
In respect of foreseeability, the court in RAF v Mtati 2005 (6) SA 215 (SCA) at [37] quoted
with approval the decision by Fraser J, of the High Court of Ontario in Duval v Seguin (1972)
26 DLR (3D) 418 where it was held that: ‘[the pregnant mother] was plainly one of a class
within the area of foreseeable risk and one to whom the defendants therefore owed a duty.
Was [the unborn child] 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 mere 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.’