THE NASCITURUS FICTION AND DELICTUAL CLAIMS RAF v M obo M [2005] 3 All SA 340 (SCA)

Abstract

The nasciturus fiction has been applied in South African law to claim delictual damages on behalf of a child born with a handicap resulting from an injury sustained in ventre matris. In the present case the court had to decide whether an unborn child had a claim for damages against the Road Accident Fund, and in particular whether the nasciturus fiction found application. In the end the court chose to decide the matter in accordance with the general principles of the law of delict. This case is particularly interesting in the light of the wrongful life claims which have been instituted on behalf of children born with handicaps in Europe and elsewhere. Although this case is not an example of a wrongful life claim, after the decision in the case under discussion, one could easily conceive of such a claim being allowed in instances where a child is born severely handicapped as a result of negligence on the part of the obstetrician. After all, if the average motorist owes a legal duty to the generic unborn child (as was held in the present case), it is not too far-fetched to construe a similar legal duty on the part of the obstetrician who is caring for the pregnant mother of the unborn child.