Contributory intent as a defence excluding delictual liability

Abstract

'Contributory intent' is a term used to determine the extent of the plaintiff's fault by a method which is analogous to that of determining intent. It may be applied as a complete defence to exclude delictual liability in terms of the common law in instances where the plaintiff intentionally or voluntarily assumes the risk of harm, thereby cancelling out the defendant's fault (in the form of negligence) and hence, delictual liability. Our courts, when faced with instances of voluntary assumption of risk on the part of the plaintiff, are unsure whether consent, contributory intent or contributory negligence is the appropriate defence. This uncertainty stems from the failure of the adjudicators to grasp fully the requirements of the defences. Nevertheless, there are numerous cases in our law which outline sufficient practical and theoretical grounds for the defence of contributory intent to be recognised, developed and incorporated properly as a complete defence in our law.