Pretoria - In an unusual claim against the Road Accident Fund (RAF) by a mother on behalf of her daughter, who was at 28 weeks gestation when mother and unborn child were involved in a serious car accident, the court ruled that the RAF was indeed liable for the serious brain damage caused to the then unborn child.
Sally Swanepoel, of the Free State, is claiming millions in the high court in Pretoria from the the RAF. This is on behalf of her daughter Cara, now 3. The child is suffering from cerebral palsy and quadriplegia, which a host of medical experts concluded was due to the high velocity impact when a car travelling at 180km/h plunged into the bakkie in which the Swanepoels were travelling.
Sally only suffered superficial injuries, but both occupants in the other car died on impact. Sally was 28 weeks pregnant on December 10, 2012, when the head-on collision occurred. Cara was born two months later with brain damage.
The only question in this tragic case that I need to decide on is whether or not the condition of cerebral palsy was caused by the high-velocity impact, or whether it is a congenital defect,” Judge Hans Fabricius said.
He is one of the most senior judges on the bench and called this a “challenging case”. He said there can be no doubt, if one looked at the pictures of the vehicles involved, that the collision occurred at high speed.
“The mother can be glad, to put it mildly, she escaped this horrendous accident with relatively mild injuries.”
The RAF disputed that the accident was to blame for the child being born with brain defects and said this was already the case before the accident. But experts testifying for the mother were in agreement that the impact caused bleeding in the then unborn Cara’s brain.
Sally was taken to hospital where scans showed the foetus was fine. However, Sally reported that for the rest of her pregnancy she felt less foetal movement. Further examinations showed no abnormalities. Cara was born on February 28, 2013. The mother did not at first suspect anything was wrong, but after a few months noticed the child was restless and she became spastic from time to time.
“Static brain damage” was later diagnosed.
“I have no hesitation in finding that the most natural and plausible conclusion is that the accident was the cause of Cara’s present condition,” the judge said.
Pretoria News