Roux v Hattingh

JurisdictionSouth Africa
Citation2012 (6) SA 428 (SCA)

Roux v Hattingh
2012 (6) SA 428 (SCA)

2012 (6) SA p428


Citation

2012 (6) SA 428 (SCA)

Case No

636/11
[2012] ZASCA 132

Court

Supreme Court of Appeal

Judge

Brand JA, Theron JA, Pillay JA, Southwood AJA and Plasket AJA

Heard

September 11, 2012

Judgment

September 27, 2012

Counsel

RS van Riet SC (with RGL Stelzner SC) for the appellant.
JW Olivier SC (with A Blommaert) for the respondent.

Flynote : Sleutelwoorde B

Delict — Elements — Unlawfulness or wrongfulness — Introducing measure of control for imposition of liability in novel or borderline situations — Perpetrator's state of mind (nature of fault) relevant.

C Sports and contests — Sports injuries — Delictual liability — Unlawfulness — Perpetrator's state of mind (nature of fault) relevant — Conduct in contravention of rules of game not automatically resulting in liability for resulting injury — But perpetrator liable where conduct in flagrant contravention of rules and aimed at causing serious injury, or accompanied by full awareness that serious injury may ensue.

D Sports and contests — Sports injuries — Delictual liability — Rugby injury — Serious neck injury caused by deliberate implementation of illegal and dangerous manoeuvre during scrumming — Conduct constituting flagrant contravention of rugby rules accompanied by full awareness of seriousness of potential injury — Wrongfulness and hence liability in delict established.

Headnote : Kopnota

E In delict the element of wrongfulness serves as a control mechanism for the imposition of liability in novel or borderline situations. The degree of fault proved is relevant, for while intentional conduct may in certain situations sometimes attract liability, merely negligent conduct may not. Sometimes F even intentional conduct may, absent a motive to cause harm or a particular awareness of the risk of serious harm, not be regarded as wrongful. These propositions are of particular significance in determining wrongfulness in the context of liability for sports injuries, where the defence of consent (to the risk of injury) will usually be invoked to rebut the presumption of wrongfulness that arises from the causation of physical harm. Although it is generally G accepted that the participant assents to the risks inherent in the sport in question, the difficulty lies in deciding in a specific case whether the harm that eventuated may be said to fall within the ambit of those inherent risks. (Paragraphs [32], [35] – [38] and [41] at 438G – J, 439H – 441A and 441F – H.)

The likelihood of injury is inherent in the game of rugby, and certain types of conduct will not be wrongful even if it were intentional and in violation of H the rules, since public and legal policy accept, such conduct as part of the game. However, conduct that constitutes a flagrant contravention of the rules and which is aimed at causing serious injury or which is accompanied by full awareness that serious injury may ensue, will be regarded as wrongful and hence attract legal liability for the resulting harm. (Paragraphs [42] – [43] at 441I – 442F.)

I The court applied these principles to find that a rugby player who had injured an opponent by executing a scrumming manoeuvre that was not only in flagrant contravention of the rules of the game but also accompanied by full awareness of the seriousness of the injury that might ensure, had acted wrongfully. The court accordingly dismissed the player's appeal against the high court's finding that he was delictually liable for the harm suffered by J his opponent. (Paragraph [44] at 442F – G.)

2012 (6) SA p429

Cases Considered

Annotations: A

Case law

Southern Africa

F v Minister of Safety and Security and Others 2012 (1) SA 536 (CC): dictum in paras [117] – [124] applied

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd B 2009 (2) SA 150 (SCA): dictum in paras [21] – [22] and [31] applied

Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) ([2004] 4 All SA 500): dictum in para [12] applied

Govan v Skidmore 1952 (1) SA 732 (N): referred to

Hatting v Roux NO and Others 2011 (5) SA 135 (WCC): confirmed on appeal C

Le Roux and Others v Dey 2010 (4) SA 210 (SCA): dictum in para [35] applied

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) (2011 (6) BCLR 577): dictum in para [122] applied

Mabaso v Felix 1981 (3) SA 865 (A): dictum at 871F – 874F applied D

mCubed International (Pty) Ltd and Another v Singer and Others 2009 (4) SA 471 (SCA): dictum in para [34] applied

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309): dictum in para [86] applied

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): dicta in paras [12] and [21] applied E

Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E): dictum at 436H – 437B applied

Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) (2004 (11) BCLR 1182; [2004] 3 All SA 511): dictum in para [44] applied

MV Banglar Mookh: Owners of MV Banglar Mookh v Transnet Ltd 2012 (4) SA 300 (SCA): dictum in para [50] applied F

MV MSC Spain: Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd 2008 (6) SA 595 (SCA) ([2007] 2 All SA 489): dictum in para [14] applied

National Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E): referred to G

Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A): referred to

R v Dhlumayo and Another 1948 (2) SA 677 (A): dictum at 705 – 706 applied

Representative of Lloyds and Others v Classic Sailing Adventures (Pty) Ltd 2010 (5) SA 90 (SCA): dictum in para [60] applied

Santam Bpk v Biddulph H 2004 (5) SA 586 (SCA) ([2004] 2 All SA 23): dictum in para [5] applied

Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A): dictum at 779B – 781G applied

South African Post Office v De Lacy and Another 2009 (5) SA 255 (SCA): dictum in para [5] applied

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA I 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): dictum in paras [12] – [16] applied

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240): dictum in para [11] applied.

England

R v Billinghurst 1978 Crim LR 553: compared. J

2012 (6) SA p430

Case Information

A Appeal against a decision in the Western Cape High Court, Cape Town, reported at 2011 (5) SA 135 (WCC).

RS van Riet SC (with RGL Stelzner SC) for the appellant.

JW Olivier SC (with A Blommaert) for the respondent.

Cur adv vult. B

Postea (September 27).

Order

C The appeal is dismissed with costs, including the costs of two counsel.

Judgment

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]

2012 (6) SA p431

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

2012 (6) SA p432

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...

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