Common Law in Southern Africa: Conflict of Laws and Torts Precedents

By Peter B. Kutner | Go to book overview

7
DEFENCES AND APPORTIONMENT OF DAMAGES

ASSUMPTION OF RISK

In Lampert v. Hefer, N.O.,1 the Appellate Division recognised assumption of risk as a defence to a negligence action and applied it to reject the claim of a passenger who accepted a ride with an intoxicated driver. One of the grounds of negligence alleged in the plaintiff's declaration was that the driver was under the influence of liquor. The defendant pleaded and proved that the plaintiff chose to be a passenger knowing that the driver was too intoxicated to drive properly or exercise reasonable care and appreciating the risk to which she was exposing herself. The Appellate Division held that this constituted voluntary assumption of risk and was a good defence. It declined to follow the contrary decision in Dann v. Hamilton.2

The principle volenti non fit injuria was seen as applicable to the claimant in a negligence action who consented to be exposed to the risk of injury as well as to the plaintiff in an intentional tort case who consented to the intentional act. The court recognised that assumption of risk and contributory negligence overlap, in that both fit the facts of some cases. The defendant's plea in the Lampert case might be viewed as raising either.3 The court did not find it

____________________
1
1955 ( 2) S.A. 507 (A.D.). See Millner, Voluntary Assumption of Risk, ( 1955) 72 S.A.L.J. 233.
2
[ 1939] 1 K.B. 509.
3
Schreiner, J.A., concurring, interpreted the plea as raising a defence of assumption of risk in relation to the plaintiff's acceptance of the ride and a

-181-

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