Deale v Padongelukfonds (21484/2008) [2011] ZAGPPHC 167 (16 September 2011)

Deale v Padongelukfonds (21484/2008) [2011] ZAGPPHC 167 (16 September 2011)

The court found that the deceased's failure to wear a helmet constituted a 100% deviation from the standard of the bonus pater familias, as it is obvious that a helmet should always be worn on a motorcycle. However, the insured driver also deviated 100% from the standard by causing the collision. The deceased did not contribute to the cause of the collision, only to the extent of his injuries. The court considered previous cases where failure to wear a seatbelt resulted in a maximum apportionment of 25% against the plaintiff, but found that the risk associated with not wearing a helmet is greater. Accordingly, the court held that it is just and equitable to reduce the plaintiff's damages...

Citation
[2011] ZAGPPHC 167
Parties
Plaintiff: M.S. Deale; Defendant: Padongelukfonds
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 September 2011
Case Number
21484/2008
Procedural Posture
Civil Trial / Liability and Apportionment of Damages
Outcome
Defendant is liable for 70% of the damages proven by the plaintiff; costs awarded to plaintiff including expert report and travel/accommodation expenses.
Judges
Hiemstra
Legal Topics
Contributory Negligence, Apportionment of Damages, Failure to Wear Helmet, Road Accident Fund, Expert Evidence
Delict Civil Procedure Contributory Negligence Apportionment of Damages Failure to Wear Helmet Road Accident Fund Expert Evidence

Case Brief

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Parties

M.S. Deale

Plaintiff

Padongelukfonds

Defendant

Procedural Posture

Civil Trial / Liability and Apportionment of Damages

Legal Issues

  1. 1 Whether the damages for loss of support suffered by the widow should be reduced due to the deceased's contributory negligence in not wearing a helmet.
  2. 2 To what extent, if any, should the damages be apportioned under section 1(1) of the Apportionment of Damages Act, 34 of 1956.

Ratio Decidendi

The court found that the deceased's failure to wear a helmet constituted a 100% deviation from the standard of the bonus pater familias, as it is obvious that a helmet should always be worn on a motorcycle. However, the insured driver also deviated 100% from the standard by causing the collision. The deceased did not contribute to the cause of the collision, only to the extent of his injuries. The court considered previous cases where failure to wear a seatbelt resulted in a maximum apportionment of 25% against the plaintiff, but found that the risk associated with not wearing a helmet is greater. Accordingly, the court held that it is just and equitable to reduce the plaintiff's damages...

Court Disposition

Defendant is liable for 70% of the damages proven by the plaintiff; costs awarded to plaintiff including expert report and travel/accommodation expenses.

Orders

  • The defendant is liable for 70% of the damages the plaintiff may prove.
  • The defendant is ordered to pay the plaintiff's costs to date, including the costs of Dr Leon Wagner's expert report and the plaintiff's travel and accommodation expenses for attending court.