Vorster and Another v AA Mutual Insurance Association Ltd

• Jurisdiction: South Africa
• Judge: Goldstone J
• Judgment Date: 08 September 1981
• Court: Transvaal Provincial Division
• Citation: 1982 (1) SA 145 (T)

Goldstone J:

Introduction

The second plaintiff sustained injuries in consequence of a collision A between two motor vehicles. She was a front seat passenger in the vehicle driven by her husband, the first plaintiff. The other vehicle was insured by the defendant, at the relevant time, in terms of the provisions of the Compulsory Motor Vehicle Insurance Act 56 of 1972.

It is common cause between the parties, inter alia, that:

(a)

The driver of the insured vehicle was solely to blame for the B collision, which occurred during peak-hour traffic at about 16.10 hours. He negligently travelled across the line of travel of the motor car of the first plaintiff.

(b)

The medical costs reasonably incurred by the first plaintiff on behalf of the second plaintiff amounted to R230,43.

(c)

C Whether or not the second plaintiff had worn the seat belt provided in the first plaintiff's motor vehicle, the second plaintiff would have sustained an injury to her foot. Her general damages in respect of that injury is the amount of R3 000.

(d)

Had the second plaintiff been wearing the aforesaid seat belt D she probably would not have sustained injuries to her seventh right rib, scalp, face and knees. The general damages of the second plaintiff in respect of these injuries is the amount of R1 000.

(e)

Prior to the collision the second plaintiff, on occasion, did wear a seat belt and she was aware of the advantages thereof. E Since the collision the second plaintiff always wears a seat belt when travelling in the front of a motor vehicle.

(f)

The reason for the second plaintiff not wearing her seat belt at the time of the collision was her excitement at being reunited with her husband after his absence from home.

F The aforegoing admissions appear from the document handed in by counsel and headed 'Ooreenkoms met betrekking tot feitegeskille'.

The parties also reached agreement on the evidence relating to the wearing of seat belts in motor cars. I shall refer to this matter in some detail in the next section of this judgment.

G In effect, the parties have been able to settle all the factual issues and it became unnecessary to hear any evidence. By agreement, I was shown a cinematograph film entitled 'The Human Collision'. The agreed minute relating to the matters portayed in the film appear from the document headed 'Minute van inspeksie van 'n rolprent getiteld 'The Human Collision''. Insofar as these matters are con - sidered relevant H they will also be referred to later in this judgment.

The only issues which must be decided are the following questions of law:

1.

Did the second plaintiff's failure to wear a seat belt constitute 'fault' in terms of s 1 of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as 'the Act'.)

2.

If so, insofar as the second plaintiff's damages could have been avoided had she been wearing a seat belt at the time of the collision, should such damages be reduced and by what amount

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I heard full and helpful argument from counsel on these questions of law.

The evidence relating to the wearing of seat belts

A The first plaintiff's motor vehicle is equipped for front-seat passengers with what are known as 'three point type' seat belts. These are seat belts which are worn across the hips as well as over one shoulder. When, in this judgment, I refer to a 'seat belt' it is to this type of seat belt that such reference is intended to be made.

B The effect of the summaries of evidence and documents put before me, by consent, appears to be the following:

(a)

Advanced research has been carried out in many countries into the efficacy of wearing seat belts in relation to the saving of lives and the reduction of injuries in consequence of motor collisions. These studies have been carried out particularly in C the United States of America and Britain and to a lesser extent in Sweden and Australia.

(b)

The National Road Safety Council of South Africa (hereinafter referred to as the 'the NRSC') is a statutory body established D in terms of the provisions of the National Road Safety Act 1 of 1960 and its successor, the National Road Safety Act 9 of 1973. The NRSC has gathered information concerning the wearing of seat belts from foreign and local sources; it has promoted research into the wearing of seat belts by technical bodies in South Africa, including the Council for Scientific and Industrial E Research; and it recommended the provincial legislation which was introduced to compel the fitting of seat belts in all new cars and the subsequent legislation making it compulsory for seat belts to be worn.

(c)

In the Transvaal it became compulsory for all motor cars registered in this Province after 1 January 1965 to be fitted F with seat belts for front seat passengers;

(d)

As from 1 December 1977 the wearing of front seat belts was made compulsory in the Transvaal.

(e)

Legislation of the type referred to in (c) and (d) also came into force in the other Provinces of the Republic at about the same time as it became effective in the Transvaal.

(f)

G Since 1965 the NRSC has conducted a national public education and publicity campaign in order to inform the members of the public of the important advantages of wearing seat belts on all motor car journeys, whether long or short and whether on H urban or rural roads. As part of this campaign the NRSC acquired the film 'The Human Collision' from Canada and it and other material have been widely exhibited to the public at various places, including schools. From 1 April 1966 to 21 December 1976, 1 580 column centimetres of such publicity appeared in local newspapers. Use has also been made of radio and television. Booklets and pamphlets have also been distributed to the public.

(g)

In 1976 the NRSC requested the Bureau for Market Research of the University of South Africa to conduct a study to ascertain

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the attitude of members of the public with regard to the wearing of seat belts. From this study it emerged that 66 per cent of the White persons interviewed favoured the compulsory wearing of A seat belts. 16 per cent could not decide and 18 per cent were opposed thereto. 72 per cent favoured the wearing of seat belts without it being made compulsory. However, in 1976 only 10 per cent of the public in fact used seat belts.

(h)

Further studies were undertaken to ascertain the effect of the legislation making compulsory the wearing of seat belts. Prior B thereto, in October/November 1977, 17, 7 per cent of the public wore seat belts. Thereafter, in February/March 1978, the number rose to 61,6 per cent. In August/September the figure had risen further to 70,2 per cent.

(i)

In the film 'The Human Collision' it is demonstrated that where C a motor vehicle comes to a sudden stop passengers in that vehicle are subjected to a so-called 'second collision'. This is caused by the passengers continuing to move forward by reason of their own momentum until they come into contact with a solid part of the vehicle such as the steering wheel, the dash board D or the windscreen. The wearing of a seat belt, in effect, makes the passengers a part of the vehicle and prevents the 'second collision'. The wearing of a seat belt will also avoid a passenger being thrown out of the motor vehicle and receiving injuries in consequence thereof.

It is also demonstrated that in cases of motor vehicles E plunging into water or being set alight, there is usually sufficient time to loosen the seat belt and escape being drowned or burnt as the case may be. According to the commentator, statistics indicate that one out of every two persons will be involved in a motor collision during his lifetime.

(j)

F The risk of injury to a front-seat passenger in consequence of a collision is 75 per cent, to the driver it is 13 per cent and to passengers in the back of a motor car it is only 6 per cent.

(k)

At all times and in all conditions it is advantageous to wear a seat belt. Unbelted passengers may receive serious injury even G at speeds of 20 kph. The greater number of motor collisions take place in built-up areas, where there are speed restrictions and within a radius of 40 kilometres from the homes of the victims.

(l)

Research undertaken in many parts of the world, including South Africa, has demonstrated that the wearing of seat belts is the H most effective manner of avoiding, or reducing, the severity of injuries sustained in consequence of motor collisions. If a front seat passenger is not wearing a seat belt the probability of injury is six times greater than if such passenger was wearing a seat belt.

(m)

If a person is thrown out of a motor vehicle in consequence of a collision there is a five times greater risk of fatal injuries being sustained by such person.

(n)

Seat belts may break in a collision. This occurs in only about

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two out of every 100 cases. If a serious accident occurs at a speed of 70 kph, the seat belt would only break after it has A served its main function, viz to reduce the severity of injuries. Standard seat belts are able to withstand forces of up to 2 727 kilograms.

In short then, it is common cause that the public of South Africa has become generally aware of the very real advantage of wearing seat belts. B These advantages and the awareness thereof by the authorities are recognised in the aforementioned provincial legislation making compulsory the fitting and wearing of seat belts.

The criterion of 'fault' in the apportionment of damages

Section 1 of the Apportionment of Damages Act 34 of 1956 provides as follows:

'1 (1) (a)

Where any person suffers damage which is caused partly by C his own fault and partly by the fault of any other person, a claim in respect of that damage shall not be defeated by...