1963 (2) SA 254 (W)
                                                                             1963 (2) SA p254

Citation      1963 (2) SA 254 (W)

Court         Witwatersrand Local Division

Judge         Hiemstra J

Heard         November 30, 1962; December 3, 1962; December 4, 1962; December
              5, 1962; December 6, 1962; December 7, 1962

Judgment      January 18, 1963

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Minor - Injuries sustained pre-natally - Right to claim. -   G   Negligence - Damages - Child
suffering pre-natal injuries - Claim for.
Headnote : Kopnota

A child has an action to recover damages for pre-natal injuries.
Case Information

Action for damages. The facts appear from the reasons for judgment.

H.J. Hanson, Q.C . (with him G. Israel) , for the plaintiff.

H   G.P.C. Kotzé, S.A . (with him J. Coetzee) , for the defendant.

Cur. adv. vult .

Postea (January 18th).

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
                                                                             1963 (2) SA p255


of gynaecology and neurology. The legal question is whether an action lies for pre-
natal 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 A 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.

       B 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 C 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 D 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 question - when 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 E 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:
      F  '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 G succession and to the
       question of status - whether 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,
                                                                                                1963 (2) SA p256


       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,
      A 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 B 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):
C'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 D 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 Text-Book 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 E 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 F 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 G 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 pre-natal 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 H 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 pre-natal 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
                                                                                           1963 (2) SA p257

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. 342 - 344); 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. A
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.
B (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), 632 - 634. 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 C tumour of the uterus. They tried to destroy the supposed tumour by X - ray treatment.
Consequently the plaintiff was born a cripple and feeble-minded. 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 D 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 E 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 pre-natal
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.
F 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 G 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 H 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.'

May 3
                                                                                         1963 (2) SA p258


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:
A  (i) The advisability of allowing such an action at all.
(ii) The possibility of procuring adequate evidence of the causal connection between the pre-natal injury
and the post-natal harm. As to (i), I can see no good reason why an action should not lie for pre-natal
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.
B (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 C 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 Grave 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 D 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 E 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 F 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 G 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 H 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 pre-natal 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 pre-natal 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.'

AThe 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 (1956 - 57), 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 (1959 - 60), p. 810:
B 'For 50 years after the first unsuccessful attempt to recover for pre-natal 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 C child legal status, most of the recent decisions allowing a cause of action have employed a
fiction - that 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 D 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 E 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. If one can visualise
a mind so evil as to allow the intentional administration of a drug like F 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.

G 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 H
'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

When a rule, previously limited, is extended to a new field, one is apt A 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 pre-natal B 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.
C 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 pre-history
was this. There was a perfectly normal pregnancy of a healthy young mother who
had had one healthy child and one D 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 E 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 F 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 G taken to hospital from the home of Mrs. Roeland, and by then the leak had
stopped - that 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 H 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
                                                                        1963 (2) SA p261


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 A 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 B ounces.
The placenta was normal in appearance, except that it seemed small - 'about a half
to three-quarters 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 C 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.

D 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 E as a result the child must
have suffered from anoxia. Lack of oxygen is a well-known 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 F 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 brain - it is hard to know
exactly. If it is a severe anoxia a few hours is quite sufficient. Even with the most G
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 H 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 well-known 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 effect, but a small contraction of the placenta can
already reduce the blood supply to that extent.
                                                                        1963 (2) SA p262


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. A 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
two-thirds of its blood supply and yet not suffer B 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 one-third. 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 C 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 two-thirds D 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 E 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 normal - F also 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 G
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.

H 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 post-natal anoxia is also a possibility.
There was a great deal of evidence
                                                                        1963 (2) SA p263


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 A pre-natal 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.
BAn 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 C 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.

DPlaintiff's Attorneys: Israel, During & Kossuth . Defendant's Attorneys: Hofmeyr,
Stegmann & Able .

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