Summary of Pinchin v Santam Insurance Co PDF

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summary of Pinchin v Santam Insurance Co...

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Case Brief Of: PINCHIN AND ANOTHER, NO v SANTAM INSURANCE CO LTD [1963] 2 All SA 267 (W) (Jacobus Ignatius Pretorius) a) Facts of the case: This case is about the father of a child who was born with cerebral palsy after his pregnant mother was involved in a car accident while the baby was still in a womb. The legal action was taken in terms of the medical expenses of the child and the maintenance of the child. Negligence was admitted by the driver of the vehicle. b) Issues in dispute The legal question is whether an unborn child has a claim for injury. The medical question is whether there is a correlation between the car accident and the fact that the child was subsequently born with brain damage. c) Holding The applied rule of law in this case is as follows: As can be gathered from Roman law and authorities on Roman Dutch law, it is established that the interest of the unborn child is protected. However, these sources exclusively applied this notion to the law of succession, and not in the case of a delict. A case of importance to this case was in the United States of America, the Illinois Appellate Court, Smith v. Luckhardt (1939). It was held that an unborn child has no existence apart from his mother and that where a contractual relationship exists, it is with the mother of the child. It has to be proved that there is a correlation between the car accident and fact that the child now has cerebral palsy c) Judgement Judge Hiemstra’s view in this case was that the nasciturus fiction could indeed be applied to the field of delict. However he decided that there was a lack of evidence to prove that the child’s brain damage was indeed caused by the car accident, the case was therefore dismissed. d) Dissent: Some authors are of the view that it is not need at all to rely on the nasciturus fiction for a viable case. They point out that causation and damage do not have to appear at the same time, therefore the fact that the child is born after the car accident with brain damage makes no difference at all. They could have relied on the rules of delict instead for their case. Others maintain that it is necessary to invoke the nasciturus fiction because legal personality only begins at birth and an unborn foetus therefore does not have any rights This issue was finally resolved in Mtati v. Road Accident Fund. In this case it was decided that it is not needed to invoke the nasciturus fiction under circumstances such as those that arose in the Pinchin case. e) Commentary: I think personally that it is unfortunate that the legal action brought before the court in the Pinchin case was dismissed. I don’t think it is right that a person should go through life as a mentally disabled person, suffer all the hardships of never being able to care for yourself and being deprived of your human dignity in such a dramatic way, all because of the negligent

driving of another person that could and should have been avoided. The offender should be held accountable for this....