PVL 3703

ASSIGNMENT 1

51863766

The concept of contributory negligence falls under the 3rd element of delict being
fault. Whereas fault refers to the defendants conduct, contributory fault
(contributory negligence) is negligence on the part of the plaintiff and thus can be
used as a defence for the defendant. The onus of proving contributory negligence on
the part of the plaintiff lies on the defendant proving on a basis of balance of
probabilities.
Contributory negligence is governed by the Apportionment of Damages act 1956(
hereafter referred to as the Act) allowing the court to apportion damages of each
party in accordance with their relevant degrees of fault.
Section 1 (1) (a) provides that any person who suffers damage which is caused partly
by his own fault and partly by the fault of any other person. The damages due to the
plaintiff by the defendant will be reduced to the extent the court deems fit1
The damage due to the defendant is reduced in terms of the degree of deviation
from the reasonable person standard. This is determined for both the defendant and
the plaintiff and the deviation thereof is determined as a percentage which is then
apportioned to each party in terms of contributory negligence. The court determines
the percentage at which each partys conduct deviated from the norm. This
percentage is determined independently for each party as in the Jones NO v Santam
Bpk2 where it was stated that if the plaintiff is 30% negligent it does not
automatically ensure that the defendants negligence was 70%. In this case it was
determined that the conduct of each party must be measured separately in terms of
the deviation from the standard of the norm, therefore the plaintiff could have
deviated 70 % and the defendant 80%. The ratio between the defendant and plaintiff
is then determined ie: 70:80 which constituted to 46.7% degree of fault on the part
of the plaintiff and 53.3% on the part of the defendant.3 The plaintiff only receives
compensation equal to the defendants percentage degree of fault.
When analysing the conduct of the plaintiff the question will arise as to whether the
conduct constituted as contributory negligence with regard to negligence leading to
the damage causing event or to the damage itself4. Two opposing views can be seen
with the case of King v Pearl Insurance Co Ltd5 in which it was ruled that failing to
wear a crash helmet on the part of the plaintiff did not constitute to contributory
negligence as such conduct was not deemed to be the damage causing negligence,
Colman J felt that the defendant still conducted the damage causing negligence and
therefore disallowed the defence of contributory negligence to lessen the
compensation to be paid by the defendant. Although in Bowkers Park Komga
Cooperative Ltd v SAR and H 6 a contradictory ruling was made, Addleson J was of the
opinion that contributory negligence relates to negligence with regard to the damage
itself and not solely to fault(negligence) with regard to the damage causing event.
1

The Apportionment of Damages Act 34 of 1956, as extracted from Neethling, Potgieter and
Visser Law of Delict 6th Edition. (Lexis Nexis Durban 2010)
2
1965 (2) SA 826 (A)
3
Neethling, Potgieter and Visser Law of Delict 6th Edition. (Lexis Nexis Durban 2010) Chapter 4
Fault and contributory fault 164-165.
4
Neethling, Potgieter and Visser Law of Delict 6th Edition. (Lexis Nexis Durban 2010)
5
1970 1 SA 462 (W)
6
1980 1 SA 91 (E )

PVL 3703

ASSIGNMENT 1

51863766

Therefore it is always possible that the plaintiffs contributory negligence with regard
to his damage can constitute to a defence of contributory negligence on the part of
the defendant. This ruling is supported by the Appellate Division in Union National
South British Insurance Co Ltd v Vitoria7 it was emphasised that contributory
negligence of the plaintiff is only relevant if it has led to an increase in the damage
as sect 1 (1) (a) of the Act provides that contributory negligence can be used as a
defence only if the plaintiff is indeed also responsible for the damage.
Although the defence of contributory negligence does not apply when the plaintiff
assumes voluntary risk. This is known as contributory intent and the plaintiff cannot
claim from the defendant. This is seen Lampert v Hefer8, as the plaintiff was well
aware of the danger and the possibility of injury known as volenti non fit inturia ,
which is thus another defence on the part of the defendant, but contributory
negligence and volenti non fit inturia cant be used in conjunction as a defence. As
volenti non fit inturia prohibits the plaintiff from the remedy of delict. Furthermore

the South African Law Commissions interpretation that section 1(1)(a) of the Act
does not allow a defence of contributory intention.9
It should also be noted that Act does not apply to loss suffered as a result of breach
of conduct as ruled in the case of Thoroughbred Breeders Association of South Africa
v Price Waterhouse 2001 4 SA 551 (SCA) where Nienaber JA expressed that The
express wording used in the Act does not fit a contractual claim he believed that the
act was designed to regulate situations within the law of delict.

1982 (1) SA 444 (A)

1955 (2) SA 507 (A)
9
South African Law Commission Discussion paper 67
http://www.saflii.org/za/cases/ZAECMHC/2010/11.pdf (Date of access 27/08/2014)
8