Roux v Hattingh

• Jurisdiction: South Africa
• Judge: Brand JA, Theron JA, Pillay JA, Southwood AJA and Plasket AJA
• Judgment Date: 27 September 2012
• Citation: 2012 (6) SA 428 (SCA)
• Docket Number: 636/11 [2012] ZASCA 132
• Hearing Date: 11 September 2012
• Counsel: RS van Riet SC (with RGL Stelzner SC) for the appellant. JW Olivier SC (with A Blommaert) for the respondent.
• Court: Supreme Court of Appeal

Plasket AJA (Brand JA, Theron JA, Pillay JA and Southwood AJA concurring):

[1] Rugby is a contact sport. [1] As a result injuries, some serious, occur D during rugby games even when the game is played in accordance with its spirit and within its rules. The central issue to be decided in this appeal is whether the conclusion reached by Fourie J in the court below, the Western Cape High Court, Cape Town, [*] that the serious neck injuries suffered by the respondent (whom I shall refer to as Ryand, as the court E below did) during the course of a game of rugby were deliberately inflicted by the appellant (whom I shall refer to as Alex, again as the court below did) acting contrary to the rules of the game

[2] Ryand suffered his injuries on 30 July 2005 during a match between the first teams of Laborie High School (Laborie) and Stellenbosch High F School (Stellenbosch). (These teams are also referred to as the schools' respective under 19 A sides.) The injuries occurred during the course of a scrum in which Ryand was the hooker for the Laborie team while Alex was the hooker for the Stellenbosch team. [2]

Plasket AJA (Brand JA, Theron JA, Pillay JA and Southwood AJA concurring)

The facts and the findings of the court below A

[3] The game between Laborie and Stellenbosch was played in good underfoot conditions. After one of the first scrums of the match, Ryand complained to the captain of Laborie, Jan Louis Marais, that Alex had been guilty of 'hanging' in the scrum, which is contrary to the rules of the B game. [3] The scrum in which Ryand was injured occurred soon after this. It was the fourth or fifth scrum of the match and took place about 10 to 15 minutes after kick-off.

[4] Ryand testified that as the forwards were forming for the scrum, Alex shouted the word 'jack-knife'. His evidence is supported by two of his C teammates who testified at the trial. They were adamant that nothing else was said apart from the word 'jack-knife'. Alex and two of his teammates testified that the code 'jack-knife' was a signal to wheel the scrum and something else was called to indicate to the forwards that they should wheel the scrum to the left or the right. This evidence will be dealt with below. D

[5] Ryand testified that when the front rows crouched prior to engaging each other, he saw Alex move to his (Alex's) right. This had the effect of blocking the channel into which Ryand's head was meant to go. (This channel should have been created by the gap between the head of the Stellenbosch tight-head prop to Ryand's left and Alex's head, to his E right.) [4] He realised that he was in trouble and closed his eyes when the forward packs engaged. Because his channel had been blocked, Ryand's head was forced down and under Alex. On the other hand, Alex testified

Plasket AJA (Brand JA, Theron JA, Pillay JA and Southwood AJA concurring)

A that he was in his correct channel and nothing prevented him from entering his channel. He experienced no pressure from the left to force him out of his channel. He later changed his version and said that, because the Laborie tight-head prop had scrummed at an inward angle, this had forced him out of his channel.

B [6] The pressure of Alex (and the weight of the Stellenbosch pack behind him) on Ryand's neck caused Ryand to scream in pain. The scrum collapsed and he was left lying on the ground, seriously injured. After the ambulance arrived, some 20 to 30 minutes later, and Ryand was taken to hospital, a replacement hooker took the field for Laborie and the game C continued where it had left off — with another scrum.

[7] The replacement hooker, Gabriel (Gawie) Alberts, complained to Marais after the scrum that Alex had closed his channel and that he had had difficulty entering it. In fact, he had suffered abrasions to his face as a result. So seriously did Marais take this, that, when he spoke to the D referee, he said that the referee should 'hou net vir ons asseblief dop, ons wil nie hê nog 'n ou moet seerkry nie'. Soon after this Alex changed position from hooker to prop and the referee decided that from then on all of the scrums would be uncontested scrums.

E [8] In addition to Ryand, Alex and members of their teams giving evidence, the coach of the Stellenbosch team, Mr Ben Malan, and three well-known experts also testified. They were Mr Balie Swart, a former Springbok prop forward and forwards coach who was, at the time of the trial, the scrum consultant for the South African Rugby Union (SARU); Mr Andre Watson, an international referee widely regarded before his F retirement as one of the best referees in the world, and then, at the time of the trial, the manager of SARU's referees; and Mr Matthew Proudfoot, who represented Scotland as a prop forward, played for various provincial teams in South Africa and then, after his retirement, turned to coaching. Reliance was also placed on various photographs of the scrum in which Ryand was injured as well as a video of it (from which the G photographs were taken).

[9] Fourie J was confronted with Ryand's version, on the one hand, that was to the effect that Alex had deliberately moved to his (Alex's) right prior to the forward packs engaging so that he would scrum over Ryand H with the almost inevitable consequence of injuring him, and Alex's versions, on the other, amounting to him having engaged in that scrum in accordance with the rules and with no difficulty whatsoever or him having been forced to his right by Laborie's tight head prop having scrummed in at an angle towards the centre of the scrum. Ryand's version establishes fault on the part of Alex, in the form of intention, I while both of Alex's versions show no fault on his part. Fourie J, in resolving this factual conflict, found Ryand's evidence of what had occurred to be the more credible version. [5] He stated:

Plasket AJA (Brand JA, Theron JA, Pillay JA and Southwood AJA concurring)

'[54] It is also necessary, in deciding the present issue, to comment on A the impression that Ryand and Alex made on me. I was favourably impressed by Ryand, who presented his version in a forthright manner without deviating from the essence thereof, notwithstanding thorough cross-examination. It was noticeable that he did not endeavour to pad his version, when stating that he did not see how and with whom his B head collided when he was injured. Had he intended to strengthen his case, he could easily have said that he saw Alex's head in front of him immediately prior to engagement and that their heads collided. Ryand's consistency is underscored by the content of the letter written by his father some three weeks after the incident, detailing the events in a manner which accords with the evidence of Ryand and Alberts. Finally, I wish to stress that, for the reasons already furnished, Ryand's evidence C is supported by the objective evidence tendered by the parties.

[55] Alex did not impress me to the extent that Ryand did. I should hasten to add that I do not suggest that he deliberately lied, but rather that his evidence was not of the same calibre as Ryand's. I have already illustrated that he was inconsistent in recounting his version of events. D I have also pointed to the respects in which his evidence is gainsaid by the objective facts.'

In rejecting Alex's alternative version that he was dislodged from his channel by the Laborie tight-head prop, and forced to his right, Fourie J held that this was 'a reconstructed afterthought' and that there was no 'acceptable factual basis for this version proffered by Alex'. E

[10] Fourie J held that Alex had acted intentionally when he first called the code 'jack-knife' before moving to his right before the scrum engaged, thereby making it impossible for Ryand to enter the correct channel with the result that Ryand's head was forced under that of Alex F and the pressure exerted on it had the effect of breaking Ryand's neck. He held too that despite the fact that when a person decides to play a game like rugby, he (or she) consents to the risk of certain injuries, the conduct in question was of such a nature that Ryand did not voluntarily accept the risk of this form of harm. The conduct of Alex was wrongful as it was deliberate, extremely dangerous and a serious violation of the rules of the game. G

[11] The issues that we are required to determine in this appeal are whether the credibility and other factual findings made by Fourie J can be assailed; whether all of Ryand's injuries were caused by Alex (in the event of the court below's factual findings being accepted and on the H assumption that the conduct was intentional and wrongful); and whether Alex's conduct was indeed wrongful. In the course of this discussion, I shall also deal with the weight that can be attached to the opinions of the expert witnesses.

The disputed factual findings I

[12] It is a well-known principle of our law that the factual findings of a trial court are presumed to be correct unless a misdirection on the part

Plasket AJA (Brand JA, Theron JA, Pillay JA and Southwood AJA concurring)

A of the trial judge can be pointed to in order to justify interference with those findings on appeal. [6] So, for instance, in Santam Bpk v Biddulph [7] Zulman JA expressed the approach as being that while an appeal court 'is generally reluctant to disturb findings which depend on credibility it is trite that it will do so where such findings are plainly wrong'.

B [13] At the outset of his argument, Mr Van Riet, who appeared together with Mr Stelzner for the appellant, conceded that Fourie J's credibility findings in favour of Ryand and against Alex could not be challenged. That concession, in the light of the careful analysis of the facts and probabilities by Fourie J, was correctly made. Those findings could not C be categorised as being 'plainly wrong'. He...