LAW OF PERSONS
LONGER QUESTIONS
1. Mrs Smith, an expectant mother, was injured in a motor vehicle accident.
Her child was subsequently born with cerebral palsy. As a result of the
brain damage the child will never be able to take care of herself. The
accident was caused by the sole negligence of the driver of the other
motor vehicle.
(a) What do you understand by the nasciturus fiction? (3)
If a situation arises where it would have been to the advantage
of the nasciturus if he or she had already been born, the law
protects his or her potential interests. This is done by the
implementation of the fiction that the nasciturus is regarded as
having been born at the time of his or her conception
whenever his or her interests are at stake. If it appears on a
specific case that, had the nasciturus already been born, he or
she would have had certain claims or rights, the legal position
is kept in abeyance until the nasciturus does in fact become a
person, or until it becomes certain that no person has
developed from the nasciturus. If the child is indeed born
alive, he or she acquires that rights that have been kept in
abeyance.
(b) Name the two requirements for the operation of the nasciturus
fiction. (2)
- The fetus must already have been conceived at the time
when the benefit would have accrued to him or her.
- The child must subsequently be born alive.
(c) Can the nasciturus fiction be applied in this case? Discuss with
reference to authority. (5)
It is possible that somebody's negligence may cause injuries
to the nasciturus before birth. In Pinchin v Santam Insurance,
where the facts were similar to the question under discussion,
the court had to answer the question whether a person has an
action in respect of injury inflicted on him or her while he or
she was still a fetus in his or her mother's womb. In this case
the court concluded that a fetus, if negligently injured before
birth, may claim damages from the wrongful party.
LONGER QUESTIONS
1. Mrs Smith, an expectant mother, was injured in a motor vehicle accident.
Her child was subsequently born with cerebral palsy. As a result of the
brain damage the child will never be able to take care of herself. The
accident was caused by the sole negligence of the driver of the other
motor vehicle.
(a) What do you understand by the nasciturus fiction? (3)
If a situation arises where it would have been to the advantage
of the nasciturus if he or she had already been born, the law
protects his or her potential interests. This is done by the
implementation of the fiction that the nasciturus is regarded as
having been born at the time of his or her conception
whenever his or her interests are at stake. If it appears on a
specific case that, had the nasciturus already been born, he or
she would have had certain claims or rights, the legal position
is kept in abeyance until the nasciturus does in fact become a
person, or until it becomes certain that no person has
developed from the nasciturus. If the child is indeed born
alive, he or she acquires that rights that have been kept in
abeyance.
(b) Name the two requirements for the operation of the nasciturus
fiction. (2)
- The fetus must already have been conceived at the time
when the benefit would have accrued to him or her.
- The child must subsequently be born alive.
(c) Can the nasciturus fiction be applied in this case? Discuss with
reference to authority. (5)
It is possible that somebody's negligence may cause injuries
to the nasciturus before birth. In Pinchin v Santam Insurance,
where the facts were similar to the question under discussion,
the court had to answer the question whether a person has an
action in respect of injury inflicted on him or her while he or
she was still a fetus in his or her mother's womb. In this case
the court concluded that a fetus, if negligently injured before
birth, may claim damages from the wrongful party.
