Contributory intend as a defence limiting or excluding delictual liability

Abstract

“Contributory intent” refers to the situation where, besides the defendant being at fault and causing harm to the plaintiff, the plaintiff also intentionally causes harm to him- or herself. “Contributory intent” can have the effect of either excluding the defendant’s liability (on the ground that the plaintiff's voluntary assumption of risk or intent completely cancels the defendant's negligence and therefore liability), or limiting the defendant’s liability (where both parties intentionally cause the plaintiff's loss thereby resulting in the reduction of the defendant’s liability). Under our law the "contributory intent" of the plaintiff, can either serve as a complete defence in terms of common law or it can serve to limit the defendant's liability in terms of the Apportionment of Damages Act 34 of 1956. The “Apportionment of Loss Bill 2003” which has been prepared to replace the current Act provides for the applicability of “contributory intent” as a defence limiting liability, but it is yet to be promulgated.