PINCHIN AND ANOTHER, NO v SANTAM INSURANCE CO LTD

[1963] 2 All SA 267 (W)

Division: Witwatersrand Local Division

Judgment Date: 18 January 1963
Case No: not recorded
Before: Hiemstra J
Parallel Citation: 1963 (2) SA 254 (W)
. Keywords . Cases referred to . Judgment .

Keywords

Child ­ Unborn ­ Injury to ­ Right to claim damages

Damages ­ Unborn child ­ Right to claim for injuries suffered before birth

Motor Vehicle Insurance ­ Liability ­ Any person suffering bodily injury ­ Unborn child

Cases referred to:

Montreal Tramways Co v Léviellé (1933) 4 DLR 337 (SC) ­ Applied

Walker v GTN Railway Co of Ireland (1891) LR 28 IR 69 ­ Discussed

Woods v Lancet 303 NY 349 (1951) (CA) ­ Considered

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Judgment

HIEMSTRA, J.: This case presents a problem which is res nova, not only in our case law, but also, as I understood
the evidence, in the field

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of gynaecology and neurology. The legal question is whether an action lies for pre­natal injury to a foetus. The
medical question is whether there is in this case a chain of causation between an injury sustained by the pregnant
mother and the fact that the child suffers from cerebral palsy. The case arises from a car accident. Negligence is
admitted. The plaintiff is the father in his personal capacity (in respect of medical expenses for which he is liable)
and in his representative capacity (in respect of general damages suffered by the child). It is common cause that
the child's brain is damaged, that he will never be able to earn his own living and that he will be unable to move
about in a normal manner.

The legal question is crisply: Does a person have an action in respect of injury inflicted on him while he was still a
foetus in his mother's womb? This looks like a philosophical conundrum as much as a legal one, but such philosophy
as I have found on the question, seems to have come from the Delphic oracle. Professor Martin Versfeld tells us in
Acta Juridica, 1960, p. 2:
"St. Thomas Aquinas drives things right back to the first fundamental truth that as justice presupposes right, so right
presupposes that in the first place man should be there. Before you can have a right, you must be.
'It is through creation that the created being first comes to have rights.' He deduces from this, incidentally, that man had
no right to creation and that God owed man nothing, since right and justice are a consequence of creation and do not
precede it."

This merely poses the further question­when is man created, at birth or at conception, or when he starts to move
within the womb?

The Roman Law has given an answer in D.1.5.7.:

"A child in its mother's womb is cared for just as if it were in existence, whenever its own advantage is concerned; but it
cannot benefit anyone else before it is born."

And in D.1.5.96:
"Those who are unborn are, by almost every provision of the Civil Law, understood to be already in existence; for
estates legally descend to them, and if a pregnant woman is taken by the enemy, her child has the right of postliminium
. . ."

In D.50.16.231:
"When we say that a child, who is expected to be born, is considered as already in existence, this is only true where his
rights are in question, but no advantage accrues to others unless they are actually born."
The reason why these passages are not always regarded as decisive of the issue, is that all commentators have
related them to the law of succession and to the question of status­whether freedman or slave. Not one has
extended their operation to the field of delict.

Glück Erläuterung der Pandekten, 11, p. 69 (1.5.114) links these passages only with succession and status. So does
Voet, 1.5.5. Grotius Inleiding, 1.3.4, says merely that a child in the womb is regarded as born if it is to its advantage,
and not when it would be to its disadvantage. Van der Keessel, Praelectiones, comments on this purely in relation to
the law of succession. So does Schorer. None of them however expressly limit it to the right of succession and none
contend that the foetus can be a bearer of rights and obligations. The position is merely that the vesting of rights is
kept suspended until the nasciturus is born. It is in the more modern law that greater guidance in regard to this
action can be found.

The action is instituted in terms of the Motor Vehicle Insurance Act,

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29 of 1942. Sec. 11 thereof provides that the insurance company shall compensate­
"any person whatsoever (in this section called the third party) for any loss or damage which the third party has suffered
as a result of
(a) any bodily injury to himself;
(b) the death of/or any bodily injury to any person,
in either case caused by or arising out of the driving of the insured motor vehicle . . .".

The word "person" is not defined. Its definition in the Interpretation Act, 33 of 1957, takes the matter no further.
The word must therefore bear its ordinary common law meaning. Whether the foetus is a "person" or not, seems to
me to be irrelevant if the legal fiction applies that it is to be regarded as if it is already born whenever this should
be to its advantage. The question is purely this: Does the fiction, which is clearly part of our law, apply outside the
law of property, and does it include the law of delict?

McKerron thinks it does (Law of Delict, 5th ed. p. 139):

"It remains only to note that provided there is sufficient evidence of causal connection between the act complained of and
the resultant harm, there would appear to be no valid reason why a child should not be entitled to recover in respect of
injuries inflicted before birth."

He relies on two very weighty authorities. The first is a decision of the Supreme Court of Canada, Montreal
Tramways Co. v. Léveillé, (1933) 4 D.L.R. 337. (The report is available here only in photostatic copy form.) The second
is an article by Professor Winfield (author of A Text­Book of Tort) in the Cambridge Law Journal, vol. 8, p. 76, in which
the Léveillé case is fully discussed. The Léveillé case is particularly important, not only because it is a judgment of the
highest Court of the Dominion of Canada, but because it is squarely based on the Roman Law and on the Quebec
Civil Code, where the word "another" appears in the same context and synonymous with the word "person" in our
statute. Also it is comparatively recent, having been decided in 1933. This is important because the contemporary
state of medical knowledge is not without relevance to the law on the point. (The law in the case is useful for our
purposes, but the jury that awarded 5,700 dollars to the baby, seems to have been rather gullible. The case for the
plaintiff was that the mother lost her amniotic fluid due to negligence of defendant, that the uterus contracted and
forced the feet of the baby into such a position that club feet developed. The jury accepted this, and the kindest
that can probably be said for this finding of fact is: In medicine anything is possible.)

The Canadian Court held that an action lies for pre­natal injury, and Professor Winfield strongly supports this view.
He sums up the Canadian decision and proceeds to deal with American law and the law of other countries. It will be
convenient, especially because of the comparative inaccessiblity of the article and of the Canadian law report, to
quote extensively from the article:
(p. 85) "In the Supreme Court, LAMONT, J. (with whom RINFRET and CROCKET, JJ. concurred), after reference to English
and American authorities, said (at p. 340) that it must be admitted that the great weight of judicial opinion in the common
law courts denied a right of action for pre­natal injuries. He then turned to the civil law. Art. 345 of the Quebec Civil
Code, which he regarded as practically embodying Roman law as set out in Digest, 1.5.7, provides that The curator to a
child conceived but not yet born, is bound to act for such child whenever its interests require it; he has until its birth the
administration of the property which is to belong to it, and afterwards he is bound to render an

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account of such administration.' The learned Judge then cited various passages from French law and English law as
showing that the civil law regarded a child en ventre sa mère as 'absolutely born, to all intents and purposes, for the
child's benefit' (at pp. 342­344); and he quoted English dicta (not confined to the civil law) from Lancashire v. Lancashire
and Clarke v. Clarke, which I have already cited (ante, p. 84). Adding to these R. v. Senior (ante, p. 79), he held that this
action, as it was for the child's benefit was maintainable; and that, though in some cases there is no analogy between
crime and tort, yet in many cases they are different aspects of the same facts, and it was difficult to see why, if the law
recognises the separate existence of the unborn child sufficiently to punish the crime, it should not also recognise its
separate existence for the purpose of redressing tort (at p. 344). If a right of action be denied to the child it will be
compelled without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy
burden of infirmity and inconvenience without any compensation therefor' (at p. 345)."
(p. 86) "Next let us consider American law. A summary of its attitude is contained in a note signed 'C.A.W., jr.' in 13
Tulane Law Review (1939), 632­634. This note was provoked by a decision of the Illinois Appellate Court, Smith v.
 Luckhardt (1939). The plaintiff, a minor, sued the defendant physicians for injuries sustained before birth. They had
wrongfully diagnosed the pregnancy of the plaintiff's mother as a tumour of the uterus. They tried to destroy the
supposed tumour by X­ray treatment. Consequently the plaintiff was born a cripple and feeble­minded. It was held that
the defendants were not liable, for, unless a statute expressly allows such an action, a child, after it is born, may not sue
for injuries inflicted before birth. The learned annotator then adverts to other American cases. He says that, without
exception, they deny any such right of action at common law, and that the basis of these decisions is two different
theories:
(1) An unborn child has no existence apart from its mother.
(2) Where the injury has been sustained in a public vehicle, the contractual relationship, if any, with the negligent
controller of the vehicle is with the mother alone.
The result of these two theories is, that a person owes no duty to an unborn child, apart from a duty not to injure the
mother.
There are, however, dicta (but no decisions) in some of the American jurisdictions which are to the contrary. They are
based partly upon the analogy of the criminal law in cases of the type of R. v. Senior, which we have considered (ante, p.
79), partly upon the analogy of the unborn child's rights with respect to property (ante, p. 84).
The American Restatement of the Law of Torts also denies the child a right of action in tort for pre­natal injuries
negligently committed to it, but in a caveat declines to express an opinion as to liability for harm inflicted on it
intentionally or recklessly. The Restatements are not binding on any Court, but they may be taken to represent the
general trend of the most reputable decisions in the United States.
Of other foreign systems, the Japanese allows such an action. In French law, the general rule is that human personality
begins only at birth. Until then, the child has no life separate from that of its mother; it is, as the Romans said, pars
viscerum matris. A qualification of this is that an unborn child is capable of acquiring rights from the moment of its
conception. The French Code limits these to rights of succession and rights to gifts and legacies. This 'anticipatory
personality' may also affect the acquisition of a new nationality, or the voluntary recognition of natural paternity or
maternity, or rights of compensation where the father is injured by an accident in his work. But it applies only in the
interest of the child. In German law the general rule is the same as that in the French law; an unborn child is not a
person and is incapable of rights until birth is complete. This is modified by the general principle of the civil law,
'nasciturus pro jam nato habetur quoties de commodis quaeritur'; but the Bürgerliches Gesetzbuch narrows this to the
inheritance of property, the appointment of a guardian of the unborn child's future rights and the claim for 'alimentation'
against a person who kills the father or other guardian of the child. The result is that French law and German law refuse
to allow a child a delictal remedy for injuries done to it before birth. On the other hand, Austrian law permits it. and so
does Swiss law.
We may wind up these references to other systems of law by noting the attitude of Roman law. It recognised the unborn
child only for what may be styled purely patrimonial rights, especially rights of succession. Even that much recognition
came late into the system, except with respect to postumi heredes. It is improbable that the medical science of that age
recognised injuries to a child in the womb, though there were penalties for procuring abortion."

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The author considers that an action lies for injury to the person of an unborn infant, for injury to his property and
even for injury to his reputation. In regard to injury to the person he says:
(p. 88) "Two things must be sharply distinguished here:
(i) The advisability of allowing such an action at all.
(ii) The possibility of procuring adequate evidence of the causal connection between the pre­natal injury and the post­
natal harm. As to (i), I can see no good reason why an action should not lie for pre­natal injury which results in post­
natal harm. Nothing that I have read in the law reports or other legal literature, English or foreign, on the topic has
produced any convincing arguments why it should not. The arguments which I venture to think unsound are the following.
(a) There is no English decision in which such a claim has been made. But if that were a valid objection, the common law
would now be what it was in the Plantagenet period.
(b) An unborn child cannot contract. True, but what has that got to do with liability to it in tort? Here we have again the
poisonous fallacy that, if A has broken a contract with B and the breach also injures C, C cannot sue A in tort because
there is no contract between him and A. The House of Lords gave that fallacy its coup de grâce in Donoghue v. Stevenson
and the Judicial Committee of the Privy Council battened the earth upon its grave in Grant v. Australian Knitting Mills, Ltd.
(c) Criminal law recognises the unborn child, but one cannot argue from criminal liability to civil liability. I quite agree
that often one cannot do so, but I would also urge that frequently the same facts constitute a crime and a tort and that
each crime must be separately considered in order to decide whether it is, or ought to be, a tort as well. Now if A injures
a child before birth so that it dies after birth, that may be homicide. Why, then, should it not be a tort on A's part? What
difference is there in the child's grievance if it were killed by a blow administered before it was born or by one given after
it was born, assuming in each case that it was born alive before it expired? In the second case an action would be
maintainable on behalf of its estate under the Law Reform (Miscellaneous Provisions) Act, 1934. Surely the same ought to
apply to the first case. Apart from possible difficulties of evidence, which are discussed under (ii) below, the only
distinction between the two cases is that death supervenes immediately in the second case and after a period of time in
the first. And this distinction disappears completely if, in the second case, the child lingered for some months after the
blow was given.
(d) The law of property recognises the unborn child, but one cannot argue from that to recognition of it in the law of tort:
To that I reply, first, that, where the tort is to property, the proposition seems to be unsound; secondly, that where the
tort is not to property, the proposition, whether sound or unsound, has no force if one does not attempt to use the law of
property as a parallel. And I think that the claim in tort can be supported without necessarily resting the whole weight of
it on an analogy from property law. I have no intention of praying in aid that branch of the law in this connection except
to urge that, where the tort is one to the person, the case for allowing a right of action is a stronger one than for
permitting a right of succession to property. It would seem odd if the law were to say to a child, 'You can acquire
property before you are born, but you cannot acquire a right to compensation for personal injuries to you before birth'.
English law, like several other systems, concedes the general proposition that the unborn child is reckoned as a legal
 person where it is for his benefit that he should be thus regarded. To limit this proposition to property rights is to rate
property higher in the scale of legal values than life and limb.
Setting aside any analogies from other parts of the law, the chief argument in favour of allowing a right of action for
personal torts is the injustice of denying it. That was strongly put by LAMONT, J., in the passage already cited from
Montreal Tramways v. Léveille (ante, p. 86), and I would respectfully agree with it."

There are other American authorities which concede the action. This represents an abandonment of the previous
views. The American Restatement (1939) denies an action for negligent pre­natal injuries but reserves its views on
harm inflicted intentionally or recklessly. Cases after the Restatement are the following:

Woods v. Lancet, 303 New York Reports, 349 (1951). This is a

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decision on appeal to the highest Court of the State of New York. According to the Mississippi Law Journal, March
1953, p. 251, the Court said in regard to an action based on pre­natal injury:
"To deny the infant relief in this case is not only a harsh result, but its effect is to do reverence to an outmoded,
timeworn fiction not founded on fact and within common knowledge untrue and unjustified."

The modern trend in American jurisprudence is clearly and unequivocally in favour of granting an action. This is
demonstrated inter alia in an article in the Mercer Law Review, vol. 8 (1956­57), where further recent American cases
are quoted, upholding an action. The change of view is described as follows in the Louisiana Law Review, vol. XX
(1959­60), p. 810:
"For 50 years after the first unsuccessful attempt to recover for pre­natal injuries, most such actions were dismissed on
the ground that the common law did not recognise the unborn child as an entity capable of being wronged by another's
tortious conduct. Recently, however, judicial thinking on this subject has changed markedly and only one court remains
committed to the earlier view. In order to give the unborn child legal status, most of the recent decisions allowing a
cause of action have employed a fiction­that the foetus is a person' at the moment of injury. Recovery has been limited,
at least nominally, to those situations where the foetus has been viable at the moment of injury, i.e. so far advanced in
gestation as to be capable of living independently outside the womb. It is significant, however, that no court has yet
invoked the viability limitation in order to deny a cause of action."

For our law it seems unnecessary to complicate the matter with the question of viability. The point remains whether
the fiction having its origins in D. 1.5.7. and 26 must with any good reason be limited to the law of property. Why
should an unborn infant be regarded as a person for the purposes of property but not for life and limb? 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 pre­natal injury and
a post­natal 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. If one can visualise a mind so evil as to allow the intentional administration
of a drug like thalidomide, in order to produce a misshapen infant, our law would be archaic and inflexible if it should
refuse an action. Once it is conceded in the case of dolus, there is no ground in principle to deny it in a case of culpa.
Foreseeability creates no difficulty. It is not unforeseeable that a pregnant mother may be travelling on the
highway.

This discussion would be incomplete without a reference to the Irish case of Walker v. G. T. N. Railway Co. of Ireland,
(1891) 28 L.R. (Ir.) 69. There a similar action was dismissed but on the ground that the railway company had only
contracted to carry the mother, to whom alone it owed a duty not to be negligent. One must agree with the above­
quoted view of Professor Winfield that to introduce contract here, is a "poisonous fallacy". As for the duty of care, in
the present case the driver of the insured car owned a duty to all other persons on the road, whether fictional
persons or not.

Walker's case was discussed in the Cape Law Journal, vol. 8 (1891). The author of the article, one Thos. F. Uttley,
closes with these words:
"Such a case as this offers a wide scope for legal speculation, and the authorities which have been collected will be useful
if, at any future time, circumstances equally, or more, extraordinary should have to be considered and settled in a law
court."

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The article is merely an interesting resumé of the Walker case and makes no submissions.

When a rule, previously limited, is extended to a new field, one is apt to ask where it is to stop. What, for instance,
of the case where the mother injures her infant in an attempted abortion? Would he after birth have an action
against his own mother? Difficulties of proof would probably confine such a case to the academic sphere, but I do
not see why even in such a case the child should not have an action.

I hold that a child does have an action to recover damages for pre­natal injuries. This view is based on the rule of
the Roman law, received into our law, that an unborn child, if subsequently born alive, is deemed to have all the
rights of a born child, whenever this is to its advantage. There is apparently no reason to limit this rule to the law of
property and to exclude it from the law of delict.

Such an action will encounter difficulties of proof, but that cannot be a reason for denying a right.
I now proceed to deal with the evidence. The plaintiff comes to Court with two alternative hypotheses as to the
cause of the child's cerebral palsy. The pre­history was this. There was a perfectly normal pregnancy of a healthy
young mother who had had one healthy child and one miscarriage. Her pregnancy had advanced to six months. On
the 28th November, 1959, she was involved in a motor accident. She sustained external injuries which have now
healed completely and are not relevant. She found however that when she was helped from the car to a nearby
homestead she was losing a great deal of fluid. Her legs were wet and even her shoes were wet inside. At the
house she was taken into the bathroom where she urinated. (It must be stated here that she had also urinated an
hour and a quarter before). Thereafter she sat on a chair, at her own request on a pad of newspapers and a bath
towel, because she was still losing fluid. When she got up the towel and newspapers were wet through. This
evidence was convincingly given by Mrs. Roeland. There were suggestions that this might have been urine, but
even when making full allowance for abnormalities in passing urine during advanced pregnancy, the amount of
liquid lost makes this highly unlikely. The amount of fluid lost, points to the likelihood that it was amniotic fluid,
escaping from the uterus through a ruptured membrane. She was taken to hospital from the home of Mrs. Roeland,
and by then the leak had stopped­that is within three hours. It never reappeared, and the baby was born only
three months later. This is a very rare phenomenon, because the usual result of a rupture is that the woman goes
into labour immediately, or otherwise the leak continues for some days until the rupture is sealed by natural
process. Also this gush of fluid suggests a tear low in the uterus, which makes it even less likely that the place
would be sealed again so soon. At the hospital no smell of amniotic fluid was noticed and by palpation no loss of
fluid was detected. (It must be noted however that the doctor who did the palpation was not informed of the
possibility of a leak that had sealed). These factors militate against a loss of amniotic fluid, but that all the fluid
could have been urine, seems even less likely. I accept therefore that she suffered a gross loss of amniotic fluid.
That the usual results did not follow must be another

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of the exceptions which in medicine so often bedevil the path of the theorist.

Upon admission of Mrs. Pinchin to the hospital, the foetal heartbeat was found to be normal and nothing untoward
was suspected in regard to the pregnancy. She was discharged within 27 hours. There was no leak. The pregnancy
continued normally, except that for two weeks within the period before birth the foetus appeared to be quiet. This
caused no anxiety because the heartbeat was normal.

The delivery was normal, and the baby weighed five pounds and eleven ounces. The placenta was normal in
appearance, except that it seemed small­"about a half to three­quarters of usual size" according to Dr. Gerald
Marks, a general practitioner, who attended to the confinement. There were no infarcts, that is areas where the
placenta had prematurely become detached from the uterine wall.

The baby cried lustily and was given to the mother to hold. Shortly after birth it turned slightly blue. It was put in an
oxygen tent where it soon pinked up. It was kept in the tent for three days­"merely as a precaution", according to
Dr. Marks. When the child was four months old, its condition showed that something was wrong and in due course
the fear was confirmed that it suffered from cerebral palsy.

This condition is sought to be linked with the accident. On the loss of amniotic fluid rests the first hypothesis on
which the plaintiff came to Court. Its propounder was Dr. Charlewood, a gynaecologist of high standing and long
experience. I state his hypothesis in his own words, condensed from the record:
With the loss of most of the amniotic fluid the uterus contracted down considerably. As a result the placental site must
contract down also and as a result the child must have suffered from anoxia. Lack of oxygen is a well­known cause of
cerebral palsy. I should imagine this is a case of cause and effect. I would say it is almost certain that this anoxia which
the child must have suffered, caused the cerebral damage. I do not agree that anoxia could only result from such
interference with the placenta that it was damaged or separated. The mere fact that the placental site must have
contracted down, was quite sufficient to interfere with the oxygenation of the baby. This is well known. It happens in a
second twin, for instance. There is with twins a higher foetal loss of the second baby than of the first baby, due to anoxia.
If you induce labour by rupturing the membrane say a month before term and the cervix is not right, she may not go into
labour and you may be forced to do a caeserian section to save the child from its lack of oxygen. The contraction would
have to persist probably for a week or two to do damage to the brain­it is hard to know exactly. If it is a severe anoxia a
few hours is quite sufficient. Even with the most careful examination it is often difficult to say whether amniotic fluid has
been lost or not. I do not agree that anoxia sufficient to damage the brain would affect the foetal heart. I have never had
a case of trauma to a mother during pregnancy leading to cerebral palsy but a ruptured membrane can lead to the death
of a baby, and it is thought that cerebral palsy is just one stage short of death. It is a matter of common knowledge that
rupture of membranes endangers the baby's oxygen supply. It is a rare combination of events that a ruptured
membrane will seal again within hours, and that pregnancy continues. But if it was amniotic fluid that was lost, then I am
prepared to say that this baby almost definitely suffered from oxygen deprivation for a while, which is a well­known and
accepted cause of cerebral palsy. It is a reasonable and rational explanation, in spite of the fact that no case exactly like
this can be traced in the literature.
It depends on the degree of anoxia whether cerebral palsy will result. Babies are built to stand anoxia much better than
adults. I do not know what the reduction of the placental site would have been here, possibly 15 per cent. That might
mean that 60 per cent or more of its function is lost. I agree that the blood supply can be reduced by 66 per cent without
ill effects, but a small contraction of the placenta can already reduce the blood supply to that extent.

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The main medical witness against Dr. Charlewood's theory was Dr. H. Sher. He rejected the theory entirely. Its
foundation is that the placenta could not function properly due to contraction of the uterus. The evidence shows
that the placenta had nowhere been separated from the uterus. It was described as "small but normal". If it could
have been shown that the weight was less than eight ounces this would have been an important fact to support a
placental deficiency. But the placenta unfortunately was not weighed. It is common cause that a foetus can be
deprived of two­thirds of its blood supply and yet not suffer anoxia. Dr. Sher's view was that the degree of
compression would have to be very severe to reduce the blood supply to less than one­third. Here there was
indeed a gush of amniotic fluid immediately after the accident, but the leak had stopped by the time that Mrs.
Pinchin reached the hospital. That was about three hours later. She was admitted to the hospital at 2.30 a.m. and
was immediately examined by Dr. Lotter, who discovered no loss of fluid. The fluid could therefore start building up
again very soon. According to the uncontradicted evidence of Dr. Sher it builds up at the rate of about 200 cc. a day
and the total amount that could be present is about 800 cc. It seems to me highly unlikely that in these
circumstances the placenta could have been so severely affected that at least two­thirds of the blood supply to the
foetus could have been shut off, for a sufficiently long period to cause anoxia. Dr. Charlewood "at a guess", thought
there would have to be anoxia for a week or more to damage the brain although in a severe case a few hours could
be sufficient. The state of the placenta does not suggest a severe case. Another factor which makes severe
contraction unlikely is that the rupture of the membrance was most likely high in the uterus, because a low rupture
is unlikely to seal so soon or at all. A high rupture means smaller loss of fluid, and for Dr. Charlewood's theory to
succeed nearly all the fluid must have been lost.

The behaviour of the foetal heart also does not support an anoxia theory. The heartbeat was at all relevant times
found to be normal­also on admission to the hospital after the accident. Dr. Sher stated that in a case of anoxia
within the uterus, the foetal heart rate is violently irregular. It accelerates suddenly and then slows down. The fact
that the heart rate was in this case normal, is at least a strong suggestion that the baby was not suffering from
anoxia. The heart can be a treacherous index, because it can now beat normally and within the next few seconds
the baby can be dead. But that does not mean that the baby died of anoxia. The cause of death might have been
something else. Where you do have anoxia an irregular heartbeat is a typical symptom, although not an invariable
one.

Both Dr. Charlewood and Dr. Sher have in their respective practices had hundreds of cases of ruptured membranes
but never a case of cerebral palsy. Dr. Charlewood admitted that it would be a rare case if cerebral palsy of this
child could be linked with the loss of fluid, but says that rare cases do occur quite often. Anoxia is indeed recognised
as the most important single factor in the aetiology of cerebral palsy, but the cause of the anoxia is the problem. It
is known that this child was kept in an oxygen tent for three days after birth, so that post­natal anoxia is also a
possibility. There was a great deal of evidence

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about other possible causes of cerebral palsy. Added to this is the fact that at an estimate one in a 1,000 births (in
America the figure was stated to be one in 200) is a child suffering from this affliction, and that not one case could
be found where this was directly linked with pre­natal loss of amniotic fluid, in circumstances where labour did not
ensue.

In the result the likelihood that the loss of fluid led to the cerebral palsy is not stronger than the opposite
contention. That means that plaintiff's case has not been proved on a balance of probabilities.

An alternative theory was advanced for the plaintiff, namely that the foetus suffered direct trauma in the accident.
This theory was, if not expressly, at least impliedly abandoned on behalf of the plaintiff. I regard it as a very unlikely
one.

Plaintiff loses the case on the facts, but it was necessary to decide the law point because it is relevant to costs. If
the defendant company had won the law point, it would have been entitled to costs only as if on exception. In
regard to costs I shall take into account that plaintiff was successful on the law point. That took up nearly a day's
argument.

The order is: Absolution from the instance with costs, except that defendant pays the costs of the last day of the
hearing.

Appearances

HGPC Kotzé, SA with J Coetzee ­ Advocate/s for the Defendant/s

HJ Hanson, QC with G Israel ­ Advocate/s for the Plaintiff/s

Hofmeyr, Stegmann and Able ­ Attorney/s for the Defendant/s

Israel, During and Kossuth ­ Attorney/s for the Plaintiff/s