King NO v Pearl Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Colman J
• Judgment Date: 21 October 1969
• Hearing Date: 21 October 1969
• Court: Witwatersrand Local Division

King NO v Pearl Insurance Co Ltd
1970 (1) SA 462 (W)

1970 (1) SA p462

Citation	1970 (1) SA 462 (W)
Court	Witwatersrand Local Division
Judge	Colman J
Heard	October 21, 1969
Judgment	October 21, 1969

Flynote : Sleutelwoorde C

Negligence — Action for damages — Apportionment of Damages Act, 34 D of 1956 — 'Fault' in sec. 1 (3) — Meaning of — Does not include failure by a plaintiff to wear a crash helmet — Words and phrases — 'Includes' — Meaning of in sec. 1 (3) of Act.

Headnote : Kopnota

The purpose of section 1 (3) of the Apportionment of Damages Act, 34 of 1956, was to define, with a desire to restrict, the word 'fault' in relation to the conduct of a plaintiff. The word 'fault' means simply E conduct which would have grounded a defence of contributory negligence at common law. It does not include the omission of a plaintiff to wear a crash helmet and does not operate to reduce the quantum of damages to which a plaintiff who has sustained head injuries is entitled on account of such failure or omission.

The meaning of, and the reason for the use of the word 'includes' in section 1 (3) of Act 34 of 1956 discussed. F

Case Information

Application by the defendant during the hearing of a trial action to amend a plea. The nature of the amendment appears from the reasons for judgment.

E. Morris, S.C. (with him Mrs. I. Benjamin), for the plaintiff.

J. Browde, S.C. (with him I. Chernin), for the defendant.

Judgment

G Colman, J.:

This is an application for the amendment of a plea, moved during the hearing of a trial action.

The action is one brought by the curator ad litem to a Mrs. West, and he claims therein damages for bodily injuries which are alleged to have H been suffered by Mrs. West in a collision between a motor scooter which she was riding and a motor car insured by the defendant under the Motor Vehicle Insurance Act, 29 of 1942.

The application for amendment is designed to add a further defence, touching part of the plaintiff's claim for damages, to the defences already pleaded, and it is opposed on behalf of the plaintiff on the ground that the defence sought to be raised thereby is bad in law.

The question so raised is one of some difficulty, and it really deserves fuller consideration than I have been able to give to it. It has been urged upon me, however, that an adjournment of the trial for that purpose,

1970 (1) SA p463

Colman J

or even a deferment of my decision until a later stage during the trial, would be materially prejudicial to the litigants. I have therefore had to do the best I could in the limited time available to me.

The statement of claim takes the form which is usual in an action for A damages arising out of a collision, and the plea which has been filed also follows customary lines. There is a denial by the defendant that the driver of the insured car was negligent, coupled with an averment that the collision was caused solely by the negligence of Mrs. West in one or more of a number of specified respects.

In an alternative paragraph it is pleaded that, if the driver of the insured car was negligent, his negligence neither caused nor contributed B towards the collision. In a further alternative averment the defendant pleads (on the assumption that the car driver was guilty of negligence which caused or contributed to the collision) that Mrs. West was also negligent in one or more of the respects set out earlier in the plea, that the collision was caused partly by her negligence, and that C her damages, if any, therefore fall to be reduced in terms of the Apportionment of Damages Act, 34 of 1956.

What the defendant is now seeking to do is to introduce into the plea an averment to the effect that Mrs. West

'was further at fault in relation to the said damages in that she failed D to wear a crash helmet or similar protective device which in the circumstances it was her duty to do',

and that for that reason also her damages fall to be reduced in terms of the Apportionment of Damages Act.

It emerged from the argument that the averment of a so-called duty to E wear a crash helmet or the like was not based on any statutory provision requiring the use of such a device. The contention of the defendant, if the amendment is allowed, will be that Mrs. West was at fault within the meaning of sec. 1 of the Apportionment of Damages Act in not protecting herself by means of a crash helmet against the head injuries which she might suffer if she were involved in a collision, F whether or not she was to blame for that collision. The defence, if sound in law, might be of considerable importance because Mrs. West is alleged to have suffered head injuries resulting in very grave disabilities indeed.

The defendant relies upon sec. 1 (1) of the Apportionment of Damages Act which reads as follows:

'(a)

G Where any person suffers damage which is...