Road Accident Fund v Mtati (332/2004) [2005] ZASCA 65; SA 215 (SCA):

Introduction

The Supreme Court of Appeal’s seminal ruling in Road Accident Fund v Mtati 2005 (6) SA 215 (SCA) greatly advanced South African delictual law pertaining to prenatal injuries and the legal protection granted to unborn children. The Road Accident Fund Act’s requirements have to be interpreted by the Court in light of the nasciturus fiction and common-law rules defining legalpersonality. By doing this, the Court used a purposive approach to statutory construction, striking a balance between the Road Accident Fund Act’s goals and more general constitutional principles of justice, fairness, and the protection of the week. The ruling continues to have a significant impact on the evolution of South African delict and Road Accident Fund jurisprudence, as well as the conditions under which a child born alive may obtain a right of action for injuries suffered before birth.

Facts of the case

The respondent Mxolisi Richard Mtati and Zukhanye Mtati herein after referred to as the respondent, demanded R 1 365 580.00 from the appellant, being the Road Accident Fund, herein after referred to as the appellant, claiming that in the East London. A motor vehicle driven carelessly collided with the respondent’s wife, who was pregnant with their baby Zukhanye at the time, allegedly suffered severe physical injuries as a result of the collision. About five and half months after the collision, Zukhanye was born. The specifics of the claim state that she suffered mental retardation and brain impairment, and that these conditions resulted from her mother’s injuries.[1]

In accordance with article 40 of the Agreement outlined in the schedule to the Multilateral Motor Vehicle Accidents Fund Act, 93 of 1989, Froneman J., sitting in the East London Circuit Local Division of the High Court, dismissed a special plea raised by the appellant against a claim brought by the respondent in his capacity as the father and natural guardian of his minor daughter Zukhanye Mtati.[2]

Legal Issues

The Supreme Court of Appeal (SCA) was asked to decide whether the child who was still unborn, the foetus at the time of the car accident may get compensation from the Road Accident Fund if they were born alive with the injuries sustained before birth.

The first issue to be resolved is whether Zukhanye can sue the appellant under Article 40 for damages resulting from disabilities she was suffering from. The next point to make is that if our law did not allow for such an activity, it would be unacceptable. Regarding this aspect of the case. In the Montreal Tramways case:  It was stated, if a child after birth has no right of action for prenatal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, there is a residuum of injury for which compensation cannot be had save at the suit of the child.[3]

Arguments Presented

The Appellant argued that the respondent’s claim lacked legal foundation because the child had not yet been born and hence lacked legal personality at the time of the car accident. According to South African law, only those who possess legal personality are competent to establish legal claims and acquire rights. Legal personality often starts at birth. The RAF additionally contended that claims made by the unborn child were not specifically covered by the Road Accident Fund Act. The appellant argues that the Act should be ready in accordance with its plain language, which restricts compensation to a third party who has sustained physical harm.[4]

Additionally, the appellant argued that RAF claims should not be covered by the common-law nasciturus fiction. It contended that there was no reason to extend the fiction’s application to delictual claims under the RAF Act because it had historically only been used in specific legal contexts, most notably inheritance. Lastly, the RAF argued that acknowledging such claims would be equivalent to establishing a new cause of action by judicial interpretation as opposed to law. It maintained that Parliament should decide whether to extend liability to cover prenatal injuries rather than the courts.[5]  

The respondent contended that although the child was not yet born at the time of the car accident, she was later born alive and had legal personality. It was argues that the child should still be able to get compensation even if the injuries were received prior to birth, especially if the harm was brought on by careless driving. The respondent further cited the nasciturus fiction, a well-established common-law theory in South Africa that states that an unborn child is considered born anytime this is advantageous to the child, as long as the child id born alive.[6]

In order to safeguard the rights of children who sustain prenatal injuries, it was proposed that this legal fiction should be applied to claims under the Road Accident Fund Act 56 of 1996. Furthermore, the respondent argues that the Road Accident Fund Act is social law that was passed in orders to compensate victims of careless driving. Therefore, rather than limiting access to compensation based on technical legal distinctions, the Act should be interpreted purposefully and in a way that advances its remedial aims. Rejecting a claim based on the fact that the injuries happened prior to birth would be against the Act’s intent and lead to an unfair outcome. Additionally, the respondent said that acknowledging the child’s claim would only allow an existing delictual claim to vest after the child was born alive, rather than creating a new cause of action. As a result, the kid has the right to seek damages for the harm the appellant’s negligence caused during pregnancy.

Court’s Reasoning and Analysis

In August 1963, this court heard an appeal from Hiemstra J’s ruling in Pinchin and Another NO.  v Santam Insurance Co Ltd 1963 (2) SA 254(W), which raised some of the legal concerns in this case. This court was satisfied that Hiemstra J had correctly determined that the plaintiffs in the case before him had failed to demonstrate that the mother’s injuries from the collision that resulted in the case had caused cerebral palsy in her child, who was born after the collision.[7]

Therefore, it was not essential for this court to determine whether Hiemstra J was correct to rule that a child had a legal entitlement to compensation for prenatal injuries. Australian rulings have cited Hiemstra J’s decision in Pinchin’s case with approval (Watt v Rama).[8] The Supreme Court of Victoria’s ruling in Watt v Rama, at 360, and in England, Burton v Islington Health Authorit; de Martell v Merton and Sutton Health Authority. Leading textbooks from Australia, (Fleming The Law of Torts, 9ed) and England (Charlesworth and Percy on Negligence, 10 ed) have also covered it.[9]

Hiemstra J, applied the nasciturus fiction, which is derived from Roman law, to conclude that a child has an action for injuries sustained while a foetus. This fiction states that an unborn child, if subsequently born alive, is considered as already in existence when its own advantage is concerned. He held that this rule applied not only to questions of succession and status but could also be extended to the law of delict.[10]

His assessment of the current issue is shown in the following ratio at 260 A-C: He carried on and stated that, he believes that a child has the right to pursue compensation for prenatal injuries. This rule is established on Roman law, which was incorporated into our legal systems and states that an unborn child is considered to have all the rights of a born child if it is later born alive, provided that this is advantageous. Apparently, there is no justification for excluding this rule from the law of delict and restricting it to the law of property.[11]

According to Hiemstra J, 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.[12]

Court’s Reasoning and Analysis

In his ruling in the court a quo, Froneman J acknowledged the validity of the Pinchin ruling and stated that the Act and the common law must be applied within the framework of the qualifies principle outlined above, which is to regard, when appropriate, a foetus as a person when upon birth it is to his or her advantage. Determining when the situation is appropriate and when it is not is the true and challenging question.[13]

The learned judge determined that the Nasciturus rule should be used in this particular situation. He came to this conclusion in part because Act 93 of 1989 was “social legislation aimed at the widest possible protection and compensation against loss and damages for the negligent driving of a motor vehicle”[14] According to Evans v Shield Insurance Co. Ltd.[15]It is essentially an expression of the common law proceedings pertaining to damages for bodily harm and loss of support caused by or originating from the negligent operation of a motor vehicle. He ruled that a duty of care might be owed to a foetus and that the current appellant’s claim that a decision in favour of the respondent would, to quote the well-known cliché, “open the flood gates of litigation” lacked merit.[16]

According to Joubert, the minor’s claim was founded on the harm they had endured as a live, breathing person, or persona iuris, rather than as a foetus. It didn’t matter that the damage causing act, in this example, the careless driving of the car that struck the mother of the child – had occurred before to the birth. Joubert noted that similar issues with dependents actions occur in out legal system when, for example, a man is killed by another person’s careless deed while his wife is pregnant. When the child id born, he or she will have a claim for loss of support. He stated that the nasciturus rule had been applied needlessly in this case as well, citing the seminal case of Chisholm v East Rand Proprietary Mines Ltd. 1909 TH 297.[17]

Critical Analysis

If the child’s right of action is refused, it will be forced to live with the stigma of someone else’s wrongdoing and endure a great deal of discomfort and infirmity without aby recompense. The court thought, it is only fair that a child born alive and viable be given the opportunity to file a lawsuit in court for wrongs done to its person while it was still inside its mother’s womb.[18]

Conclusion

A major advancement in South African law and the legislation pertaining to the protection of unborn children is the ruling in Road Accident Fund v Mtati. The Supreme Court of Appeal affirmed that a child born alive may file a claim for damages resulting from prenatal injuries caused by careless driving. In coming to its conclusion, the Court upheld the use of the nasciturus fiction in certain situations and adopted a purposive interpretation of the Road Accident Fund Act 56 of 1996. In addition to ensuring that vulnerable children are not refused compensation because of the date of their injuries, the ruling advances the Act’s remedial aim. Due to this, the case continues to have a significant impact on the development of South African delict and Road Accident Fund jurisprudence as we as the recognition of parental damage claims.

Reference(S):

Cases

Road Accident Fund v Mtati (332/2004) [2005] ZASCA 65; SA 215 (SCA)

Chisholm v East Rand Proprietary Mines Ltd. 1909 TH 297.

SA Eagle Insurance Co Ltd v Pretorius 1998 (2) 656 (SCA), 6591-660D).

Evans v Shield Insurance Co. Ltd. [1980 (2) SA 814 (A)], 841E

Pinchin and Another v Santam Insurance Co Ltd 1963 (2) SA 254 (W)

Watt v Rama [1972] VR 353 (FC)

Statutes and Treaties

Multilateral Motor Vehicle Accidents Fund Act, 93 of 1989

Road Accident Fund Act 56 of 1996

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

[2] Multilateral Motor Vehicle Accidents Fund Act 93 if 1989

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

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

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

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

[7] Pinchin and Another v Santam Insurance Co Ltd 1963 (2) SA 254 (W)

[8] Watt v Rama [1972] VR 353 (FC)

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

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

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

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

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

[14] SA Eagle Insurance Co Ltd v Pretorius 1998 (2) 656 (SCA), 6591-660D).

[15] Evans v Shield Insurance Co. Ltd. [1980 (2) SA 814 (A)], 841E

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

[17] Chisholm v East Rand Proprietary Mines Ltd. 1909 TH 297.

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