CONTRIBUTORY INTENT AS A DEFENCE LIMITING OR EXCLUDING DELICTUAL LIABILITY by RAHEEL AHMED submitted in accordance with the requirements for the degree of MASTER OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROF J NEETHLING NOVEMBER 2011 PREFACE This study would not have been possible without the knowledge, patience and guidance of my supervisor, Prof Johann Neethling. I am truly indebted to him and would like to express my sincerest gratitude. i SUMMARY “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. ii KEY TERMS Apportionment of Damages Act 34 of 1956 Apportionment of Loss Bill 2003 consent contra bonos mores contributory fault contributory intent contributory negligence exclusion of delictual liability ground excluding fault ground of justification limitation of delictual liability volenti non fit iniuria voluntary assumption of risk iii ABBREVIATIONS A Appellate Division AC Appeal Cases AD Appellate Division AJA Acting Judge of Appeal AJP Acting Judge President All ER All England Reports All SA All South African Law Reports (LexisNexis) ALR Australian Law Reports BGB Bürgerliches Gesetzbuch C Cape Provincial Division CC Constitutional Court CJ Chief Justice CLR Commonwealth Law Reports CPD Cape of Good Hope Provincial Division CSAR Commissioner for South African Revenue CWO Civil Wrongs Ordinance (Israel) iv D Durban and Coast Local Division GNP North Gauteng High Court, Pretoria J Judge JA Judge Appeal KB King’s Bench N or NPD Natal Provincial Division NDLR North Dakota Law Review NZLC New Zealand Law Commission NZLR New Zealand Law Reports O or OPD Orange Free State Provincial Division PIQR Personal Injury and Quantum Reports QB Queen’s Bench SA South African Law Reports (Juta) SA Merc LJ SA Mercantile Law Journal SALJ South African Law Journal SALRC South African Law Reform Commission SASR South Australian State Reports v SCA Supreme Court of Appeal SCB Standard Chartered Bank SCO Code of Obligations (Swiss) T Transvaal Provincial Division THRHR Tydskrif vir Hedendaagse Romeins-Hollandse Reg TS Transvaal Supreme Court Reports TSAR Tydskrif vir die Suid-Afrikaanse Reg UKHL United Kingdom House of Lords VLR Victorian Law Reports VR Victoria Reports W Witwatersrand Local Division WCC Western Cape High Court, Cape Town WLR Weekly Law Reports vi TABLE OF CONTENTS Chapter 1: Introduction 1.1 Background 1 1.2 Purpose of study 3 1.3 Outline of chapters 4 Chapter 2: Definition of contributory intent 2.1 Fault and contributory fault 5 2.2 Intention (dolus) and contributory intent 6 2.2.1 Intention 6 2.2.2 Contributory intent 9 2.2.2.1 Excluding liability 9 2.2.2.2 Limiting liability 11 2.3 Negligence and contributory negligence 12 2.4 Negligence and “duty of care” 13 2.5 Consent, contributory intent and contributory negligence 14 Chapter 3: Contributory intent as a complete defence excluding delictual liability 3.1 Introduction 15 3.2 Voluntary assumption of risk as a ground of justification 16 3.2.1 Introduction 16 3.2.2 Volenti non fit iniuria (voluntary assumption of risk) 16 3.2.2.1 Introduction 16 3.2.2.2 Requirements 18 3.2.2.3 Examples from case law 24 3.2.2.4 Voluntary assumption of risk as a defence in the case, and action, of dependants 52 vii 3.3 Voluntary assumption of risk (contributory intent) as a ground excluding fault 55 3.3.1 Introduction 55 3.3.2 Rescue cases 56 3.3.3 Case law 58 3.4 Conclusion 65 3.5 Dogmatic views 66 3.6 Comparative law 73 3.6.1 English law 73 3.6.2 Australian law 80 3.6.3 Israeli law 82 3.6.4 German law 84 3.6.5 Swiss law 86 3.6.6 Spanish law 87 3.6.7 Greek law 88 3.6.8 Summary 88 3.7 Conclusion 89 Chapter 4: “Contributory intent” as a defence limiting delictual liability 4.1 Introduction 91 4.2 The application of the defence of “contributory intent” within the ambit of the Apportionment of Damages Act 34 of 1956 93 4.2.1 Section 1(1) and 1(3) of the Act 93 4.2.1.1 Meaning of “fault” 94 4.2.1.2 Arguments supporting the view that fault excludes intent 103 4.2.1.3 Arguments supporting the view that fault includes intent 107 4.2.1.4 Conclusion 111 4.2.2 Section 2 of the Act 112 4.2.2.1 Introduction 112 4.2.2.2 Meaning of “fault” 113 4.2.2.3 Relevant case law and commentary 114 viii 4.3 Legal reform 127 4.3.1 Report of the South African Law Reform Commission 127 4.3.2 Dogmatic views 129 4.4 Comparative law 130 4.4.1. English law 130 4.4.2. Australian law 133 4.4.3. Israeli law 135 4.4.4 German law 139 4.4.5. Swiss law 140 4.4.6 Spanish law 142 4.4.7 Greek law 144 4.4.8 Summary 145 4.5 Conclusion 146 Chapter 5: Summary, recommendations and conclusion 5.1 Contributory intent as a defence excluding delictual liability 148 5.1.1 South African law 148 5.1.2 Comparative law 151 5.2 Contributory intent as a defence limiting liability 152 5.2.1 South African law 152 5.2.2 Comparative law 155 5.3 Recommendations 157 5.4 Conclusion 162 6 Bibliography 6.1 Books 165 6.2 Journal Articles 170 6.3 Table of Statutes 174 6.3.1 South Africa 174 6.3.2 England 175 6.3.3 Australia 175 6.3.4 Israel 175 ix 6.3.5 Germany 175 6.3.6 Switzerland 175 6.3.7 Greece 176 6.3.8 Spain 176 6.3.9 New Zealand 176 6.4 Table of Cases 176 6.4.1 South Africa 176 6.4.2 England 182 6.4.3 Australia 184 6.4.4 Israel 184 6.4.5 New Zealand 185 6.4.6 Spain 185 6.4.7 United States of America 185 6.5 Reports 185 6.6 Electronic Resources 186 x “As has been mentioned, there is little authority for the so-called defence of contributory intent in our law where the defendant acted negligently, and it would appear that our courts are not prepared to recognise it in terms of the Apportionment of Damages Act. Nevertheless, the principle that the conscious taking of an unreasonable risk by the plaintiff cancels fault on the part of the defendant, is a principle of common law and functions independently of the Act.”1 1 Neethling and Potgieter Delict 171. xi Chapter 1 1. Introduction 1.1 Background This study focuses on contributory intent as a defence limiting or excluding delictual liability. In order to understand the term “contributory intent” it is necessary to put it into perspective within the law of delict as a whole. “A delict is the act of a person that in a wrongful and culpable way causes harm to another.”1 The following five elements, namely, an act, wrongfulness, fault, causation and harm, must be present before the conduct complained of is considered to be a delict.2 Fault (culpa in the wide sense) is a general requirement for delictual liability.3 Fault in the form of either intention (dolus) or negligence (culpa in the narrow sense) is sufficient to hold a person legally blameworthy.4 In general, fault refers to the defendant’s conduct. On the other hand, “contributory fault”, of which “contributory intent” is a form, refers to a situation where, besides the defendant being at fault and causing harm to the plaintiff, the plaintiff also culpably (intentionally or negligently) causes harm to him- or herself.5 In this sense “contributory intent” can have the effect of either excluding the defendant’s liability (on the ground that the plaintiff's fault completely cancels the defendant's fault and therefore liability),6 or limiting the defendant’s liability (on the ground that the plaintiff's loss was caused partly by his or her own fault and to this extent reduces the defendant’s liability).7 Consequently, the “contributory intent” of the plaintiff can either serve as a complete defence or it can serve to limit the defendant's liability.8 1 Neethling and Potgieter Delict 4. 2 Neethling and Potgieter Delict 4; Loubser et al Delict 21. 3 Burchell Delict 85; Neethling and Potgieter Delict 123; Van der Walt and Midgley Delict 155. However, exceptions do occur and are referred to as “liability without fault” or “strict liability”; see Neethling and Potgieter Delict 355-375; Van der Walt and Midgley Delict 35-36; Burchell Delict 245- 254; Loubser et al Delict 359-366.