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[2012] ZASCA 132
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Roux v Hattingh (636/11) [2012] ZASCA 132; 2012 (6) SA 428 (SCA) (27 September 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 636/11
In the matter between:
Alex Roux
.........................................................................................................
Appellant
and
Ryand Karel Hattingh
..................................................................................
Respondent
Neutral
citation:
Alex Roux v Ryand Karel Hattingh
(636/11) [2012]
ZASCA132
(27
September2012)
Coram:
BRAND,
THERON, PILLAY JJA AND SOUTHWOOD AND PLASKET AJJA
Heard:
11
September 2012
Delivered: 27
September 2012
Summary: Delict –
plaintiff injured during a game of rugby – factual findings of
trial court assumed to be correct where
no misdirection on part of
trial court – intentional infliction of injury by defendant on
plaintiff established – such
conduct wrongful – element
of wrongfulness in context of sport discussed.
______________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from:
Western Cape High Court, Cape Town (Fourie J sitting as court of
first instance).
The appeal is dismissed
with costs, including the costs of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PLASKET AJA (BRAND,
THERON, PILLAY JJA and SOUTHWOOD AJA concurring)
[1] Rugby is a contact
sport.
1
As a result injuries,
some serious, occur 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 below did) during the course of
a game of rugby was 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 School
(Stellenbosch). (These teams are also referred to as the schools’
respective under 19A 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
The facts and the
findings of the court below
[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 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
ten 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
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.
[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 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 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.
[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 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
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 positions from hooker to
prop and the referee decided that from
then on all of the scrums
would be uncontested scrums.
[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 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 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 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 on an angle towards the centre of
the scrum. Ryand’s version establishes fault on the part of
Alex, in the form of intention,
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:
‘
[54] It is
also necessary, in deciding the present issue, to comment on 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
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 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. 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’.
[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 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.
[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
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
[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 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’.
[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 be categorised as being
‘plainly wrong’. He argued,
however, that this was not the end of the matter as the issue as to
what the code ‘jack-knife’
meant was not decided on the
basis of credibility findings but on probabilities. I am not sure
that he is correct in that submission
but I shall proceed on the
basis that he is and that we are in as good a position as Fourie J
was to determine the issue. It is
important to bear in mind, however,
that the ‘jack-knife’ issue does not stand alone: it is
part of the factual matrix
and it draws its context from those facts.
[14] That context is
that, shortly before he bound with his props for the scrum in which
Ryand was injured, Alex shouted the word
‘jack-knife’. He
then loosened his bind on his loose head prop to enable him to move
to the right and block Ryand’s
channel shortly before the two
packs of forwards engaged.
[15] The evidence of
Ryand and his teammates was that only the word ‘jack-knife’
was spoken. The evidence of Alex and
his teammates was that it was
their code to signal a wheeling of the scrum, either to the left or
the right. They encountered great
difficulties in trying to justify
their evidence. On this version, various suggestions were put forward
as to how the code would
signify that the scrum should be wheeled in
a particular direction. One was that the code would be accompanied by
the words ‘left
shoulder’ or ‘right shoulder’
or ‘left’ and ‘right’ or that the names of
the Stellenbosch
props would be used as in ‘jack-knife Bossie’
or ‘jack-knife Carlo’, or that the decision to wheel the
scrum was taken in a huddle prior to getting ready to form up for the
scrum.
[16] It would obviously
serve no purpose to call the ‘jack-knife’ code and then
announce ‘left shoulder’
or ‘right shoulder’
because even the slowest-thinking of opponents would realise what was
to come: calling the direction
of the wheel would surely give the
game away. The evidence of the Laborie players was that they knew the
names and nick-names of
the Stellenbosch team, so calling the name of
one of the props would also be pointless and enable the opposition to
work out what
was planned. If it had been decided to wheel the scrum
in a particular direction in a huddle before packing down, there
would have
been no need for the code to have been called at all.
Obviously, the word ‘jack-knife’ on its own could not
relate
to wheeling the scrum because none of the forwards, apart from
the person who called it, would know the direction in which it was
to
be wheeled. Finally, Malan, the coach of the Stellenbosch team, had
never heard the code before and did not know what it signified.
Even
though he said that, when he taught the team a tactic, he left it to
the team to give it a code name, it is highly improbable
that if
‘jack-knife’ was a signal for the scrum to be wheeled, he
would not have heard it during games and more importantly,
he would
not have heard it called in practices.
[17] From the credibility
findings made in favour of Ryand’s version, which included the
evidence that the word ‘jack-knife’
was called by Alex
and he only uttered that word, as well as the illogical explanations
of Alex and his teammates that it related
to the wheeling of the
scrum, it seems to me that the probabilities are overwhelming that it
related to the manoeuvre in terms
of which Alex was to change his
position in the scrum in order to close Ryand’s channel and
then scrum over him. Fourie J’s
finding that it denoted a
‘manoeuvre which would cause the scrum to “jack-knife”,
ie to collapse due to the opposition
hooker being forced into a bent
or doubled-up position’ cannot be faulted.
[18] That being so, his
conclusion that Alex acted deliberately in injuring Ryand is
unimpeachable. The result was that Alex’s
fault, in the form of
intention, had been established.
[19] Much time and effort
was taken up with the expert opinions of Swart, Watson and Proudfoot
being led, cross-examined and re-examined.
None of them were present
when Ryand was injured and so they speculated on what may or may not
have happened based largely on the
video clip of the scrum and
photographs distilled from the video clip. While Fourie J
acknowledged that he had obtained valuable
assistance from the expert
witnesses on technical aspects of the game, particularly when
considered ‘alongside the eye-witness
and objective and common
cause facts’, the place of expert evidence, when credible
direct evidence is available, must be
borne in mind.
[20] In
Motor
Vehicle Assurance Fund v Kenny
8
Eksteen J held, in the
context of a motor collision that ‘[d]irect or credible
evidence of what happened in a collision, must,
to my mind, generally
carry greater weight than the opinion of an expert, however
experienced he may be, seeking to reconstruct
the events from his
experience and scientific training’; that the view of an expert
witness as to what might probably have
occurred should generally
‘give way to the assertions of the direct and credible evidence
of an eye witness’; and that
it is ‘only where such
direct evidence is so improbable that its very credibility is
impugned that an expert’s opinion
as to what may or may not
have occurred can persuade the Court to his view’. This is such
a case: despite the undoubted experience
and expertise of the three
experts, and their useful contribution that was acknowledged by
Fourie J, the direct, eyewitness evidence
of Ryand as to what
happened in the fateful scrum, rather than the speculation of the
experts as to what may have occurred, drawn
from their viewing of the
video clip and the photographs, must surely carry the day, as Fourie
J concluded.
The injuries
[21] During the trial,
the reports of two neurosurgeons, Dr Zayne Domingo and Dr Gerrit
Coetzee, were handed in by consent. The
agreement between the parties
was that the content of these reports was admitted, save to the
extent of any disagreement between
the two. The specialists
ultimately agreed that Ryand had suffered two neck injuries –
what they described as a bilateral
facet dislocation. Dr Coetzee was
asked to give an opinion on whether the injuries were caused solely
by Alex positioning himself
in the incorrect place in the scrum.
During the course of his report, he stated that ‘[o]ne should
also consider that further
damage to the spine may have taken place
after the initial injury when the pack collapsed’ but he found
himself unable to
give an answer to the problem that he posed.
[22] It was argued on
behalf of Alex, on the basis of Dr Coetzee’s report, that by
holding Alex liable for all of Ryand’s
injuries, Fourie J had
failed to take into account evidence that demonstrated that Ryand
could have suffered injuries to his neck
when the scrum collapsed,
and that Alex could not be held to have caused those injuries.
[23] Fourie J dealt with
this issue in two places in his judgment. First, he found that Ryand
was injured when the front rows engaged
for the scrum and that the
reports of the medical experts ‘show that the injury was in all
probability sustained upon engagement,
although Dr Coetzee suggests
that it could have been worsened by the scrum thereafter collapsing
on Ryand’. He added that
the evidence of Swart, Watson and
Proudfoot supported the evidence that ‘Ryand was injured upon
engagement’. Later
in his judgment, he concluded as to the
question of causation as follows:
‘
I therefore
find that Ryand has proved, on a balance of probabilities, that Alex
did execute the manoeuvre coded “jack-knife”,
by forcibly
placing his head in the incorrect channel of the scrum, thereby
making contact with Ryand’s head and neck and
causing the
injury to his neck.’
[24] From the above, it
is clear that Fourie J was alive to the point raised by Dr Coetzee,
he considered it and decided, on the
totality of the evidence before
him, that it had no factual foundation. I agree. It is speculative in
the extreme and Dr Coetzee
appears to have recognised this when he
said in the next sentence of his report that ‘the only
statement that can be made
with confidence is that the patient
suffered a flexion distraction injury’. In any event, on the
evidence accepted by Fourie
J, the scrum collapsed because of the
manoeuvre executed by Alex. We can only speculate as to what may have
happened but for the
execution of the ‘jack-knife’
manoeuvre.
Wrongfulness
[25] Not every act or
omission resulting in harm is actionable. This point was made by
Harms JA in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
9
when he said:
‘
The first
principle of the law of delict, which is so easily forgotten and
hardly appears in any local text on the subject, is,
as the Dutch
author
Asser
points out,
that everyone has to bear the loss he or she suffers. The Afrikaans
aphorism is that “skade rus waar dit val”.
Aquilian
liability provides for an exception to the rule and, in order to be
liable for the loss of someone else, the act or omission
of the
defendant must have been wrongful and negligent and have caused the
loss.’
[26] In this case we have
confirmed the finding of the trial court that Alex acted
intentionally (as opposed to negligently) when
he executed the
‘jack-knife’ manoeuvre that blocked Ryand’s channel
in the scrum, thereby injuring Ryand. That
means that the fault
element of the Acquilian action has been established, as has the
element of causation. It is now necessary
to consider the element of
wrongfulness. In the light of my brother Brand JA’s separate
discussion of the question, in the
specific context of the game of
rugby, I shall deal briefly with the facts from which a finding that
Alex’s conduct was wrongful
follows as a matter of
inevitability.
[27] In my view, a number
of factors, taken together lead me to the conclusion that Alex’s
conduct was wrongful. First, the
‘jack-knife’ manoeuvre
executed by Alex was in contravention of the rules of the game. It
was also contrary to the
spirit and conventions of the game.
Secondly, because it had a code-name, the manoeuvre must have been
pre-planned and it was consequently
also executed deliberately.
Thirdly, while one of its objects may have been to gain an advantage
in the scrum, and another may
have been to intimidate the opposition,
particularly Ryand, it was also extremely dangerous. Alex knew this,
describing it as ‘krities
gevaarlik’. The danger for an
opponent inherent in the manoeuvre was confirmed by Swart, Watson and
Proudfoot. Fourthly,
Alex must have foreseen that the manoeuvre was
likely to cause injury to Ryand – and serious injury, to boot –
and
he proceeded to execute it nonetheless.
[28] The egregious nature
of Alex’s conduct places it beyond the pale. Public and legal
policy, I have no doubt, require such
conduct to be stigmatised as
wrongful. I also take the view, along with Fourie J in the court
below, that because this conduct
amounted to such a serious violation
of the rules, it is not normally associated with the game of rugby
and is extremely dangerous,
it would ‘not have constituted
conduct which rugby players would accept as part and parcel of the
normal risks inherent to
their participation in a game of rugby’.
In the result, the conduct is wrongful and the justification of
consent cannot avail
Alex.
Conclusion
[29] It follows from what
I have said above that the trial court’s findings that Alex
intentionally injured Ryand in the manner
described by him, thereby
causing him serious harm, and that his conduct in doing so was
wrongful, were correct. The appeal therefore
cannot succeed.
[30] In the result, the
following order is made:
The appeal is dismissed
with costs, including the costs of two counsel.
------------------------------------
C Plasket
Acting Judge of Appeal
BRAND JA (THERON and
PILLAY JJA, SOUTHWOOD and PLASKET AJJA concurring)
[31] I have read the
judgment of my brother Plasket AJA in this matter and I agree with
his reasoning in every respect. It follows
that I also agree with his
conclusion that the appeal cannot succeed. That notwithstanding, I
believe that I should say something
about the legal principles
involved. As it turned out, the law presented little difficulty in
this case. But it appears that in
granting leave to appeal, the court
a quo was swayed by the consideration that this court could
conceivably be of assistance in
reaching some uniformity in the
approach to the enquiry as to when a participant in a rugby game
could be held liable in delict
for damages resulting from injuries
sustained by an opponent. Moreover, it appears from the authorities
quoted in the judgment
of the court a quo that there is clearly some
confusion with regard to the approach that courts should adopt in
matters of this
kind. So, mindful of the risk of creating even
greater confusion, I venture to suggest the general approach that
follows.
[32] A participant in a
rugby game can, of course, only be held liable for injuries suffered
by his or her – in the nature
of a rugby game, mostly ‘his’
– opponent if he acted negligently or with intent. The problem
is, of course, that
rugby injuries are often caused with intent, at
least in the sense of
dolus eventualis
.
It must therefore be of some relief to rugby players that, despite
the presence of fault, liability will only follow if the negligent
or
intentional conduct causing the injury is also held to be wrongful.
In the relatively recent past the element of Aquillian liability
known as wrongfulness frequently attracted the attention of this
court, particularly in decisions dealing with liability for omissions
and pure economic loss. Where the loss resulted from a positive act
giving rise to physical damage to the person or property of
the
plaintiff, so it was pointed out in those decisions, the defendant’s
conduct is regarded as prima facie wrongful (see
eg
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA)
para 12;
Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) para 13). Indeed, it is settled law that in these
instances the onus is on the defendant to rebut the inference of
wrongfulness
that arises from the physical harm (see eg
Mabaso
v Felix
1981 (3) SA 865
(A) at 871-874;
Santam Insurance Co Ltd v Vorster
1973
(4) SA 764
(A) at 780-781).
[33] Despite these
differences, the basic principles underlying the element of
wrongfulness remain the same in all instances. These
principles have
been summarised thus by the Constitutional Court in
Le
Roux v Dey
2011 (3) SA 274
(CC) para 122:
‘
In the more
recent past our courts have come to recognise, however, that in the
context of the law of delict: (a) the criterion
of wrongfulness
ultimately depends on a judicial determination of whether –
assuming all the other elements of delictual
liability to be present
– it would be reasonable to impose liability on a defendant for
the damages flowing from specific
conduct; and (b) that the judicial
determination of that reasonableness would in turn depend on
considerations of public and legal
policy in accordance with
constitutional norms. Incidentally, to avoid confusion it should be
borne in mind that, what is meant
by reasonableness in the context of
wrongfulness has nothing to do with the reasonableness of the
defendant’s conduct [which
is part of the element of
negligence], but it concerns the reasonableness of imposing liability
on the defendant for the harm resulting
from that conduct.’
(See also
F
v Minister of Safety and Security
2012 (1) SA
536
(CC) paras 117-124;
Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) para 11;
Mthembi-Mahanyele v
Mail & Guardian Ltd
2004 (6) SA 329
(SCA)
para 44; Anton Fagan ‘Rethinking wrongfulness in the law of
delict’
(2005) 122
SALJ
90
at 109.)
[34] The confusion
cautioned against in the quotation from
Le
Roux
seems to have materialised in a
statement by Basson & Loubser
Sport and
the Law in South Africa
, 7 ed chapter 5 at
13-14 which was relied upon in the judgment of the court a quo. That
statement reads as follows:
‘
Both
unlawfulness [or wrongfulness] and fault in respect of a sports
injury essentially involves the question whether the defendant
acted
reasonably or unreasonably; and these two elements of the delict are
mostly telescoped into one when the courts examine the
reasonableness
of the defendant’s conduct. Reasonableness is determined with
reference to the rules and conventions of the
sport concerned; the
standards of care and skill that can be expected of a participant in
the sport; and the circumstances of the
incident. Injury caused by
unreasonable conduct falls outside the ambit of consent to the risk
of injury, because participants
are taken to consent only to the
normal and reasonable risks of the sport concerned.’
[35] It is clear to me
that the confusion thus displayed does not only offend the
sensitivities of the purists. It has practical
consequences. In the
law of delict in general and in the present context in particular,
the element of wrongfulness introduces
a measure of control. It
serves as a ‘long-stop’ to exclude liability in
situations where most right minded people,
including judges, will
regard the imposition of liability as untenable, despite the presence
of all other elements of Aquillian
action (see eg
Fourway
Haulage SA (Pty) Ltd v S A National Roads Agency Ltd
[2008] ZASCA 134
;
2009
(2) SA 150
(SCA) para 31). If the test for negligence and
wrongfulness is telescoped into one, the function of the latter
element as a measure
of control is lost completely. Whenever the
conduct of a participant in a rugby game which led to the injury of
his opponent is
found to be negligent, liability for the loss
resulting from the injury will follow as a matter of course. In
addition, logic dictates
that if the injury was caused intentionally,
the participant’s position can only be worse. I find this
outcome untenable
and I believe it to be self-evidently so.
[36] In the context of
physical injuries resulting from positive conduct, the defendant more
often than not seeks to rebut the presumption
of wrongfulness by
establishing one of the well settled defences which have become known
as grounds of justification. Included
amongst these are private
defence, necessity, statutory authority,
volenti
non fit iniuria
(or consent) and so forth
(see eg J Neethling & J M Potgieter
Neethling-Potgieter-Visser
Law of Delict
6 ed 82
et
seq
; Max Loubser & Rob Midgley (Eds)
The
Law of Delict in South Africa
chapter 9).
Some of these grounds of justification have become so standardised
that they have developed their own subrules. Nonetheless,
there is no
closed list or
numerus clausus
of
grounds of justification. This is so because these grounds constitute
no more than typical factual situations occurring in practice
where
it had become settled law that liability will not follow.
[37] But the fundamental
approach to the determination of wrongfulness will always find
application in novel or borderline situations
not catered for by the
subrules of these grounds (see J C van der Walt & J R Midgley
Principles of Delict
3
ed para 85). In those situations the question will therefore be
whether considerations of public or legal policy, in accordance
with
constitutional norms, dictate that legal liability should be imposed.
With regard to these considerations of policy this court
was at pains
in the past to point out that the considerations do not depend on a
collection of arbitrary factors or on the idiosyncratic
view of an
individual judge, but rather on the balancing against one another of
identifiable norms (see eg
Minister of Safety
and Security v Van Duivenboden
2002 (6) SA
431
(SCA) para 21;
Telematrix
paras
15-16;
Fourway Haulage
paras
21-22). Some of these norms have been enumerated in a useful
discussion by Loubser & Midgley
op cit
chapter 8.
[38] Amongst the
considerations that may influence the policy decision whether or not
to impose liability, is the nature of the
fault that is proved, as
well as other fault related factors. Accordingly, while intentional
conduct may sometimes attract legal
liability, the same conduct may
not be regarded as wrongful if the degree of fault established was no
more than negligence. In
other factual situations conduct may not
even be regarded as wrongful when it was intentional, but only when
it was accompanied
by a motive to cause harm or by a particular
awareness of the risk of serious harm that may follow. I find these
propositions of
particular significance in determining wrongfulness
in the context of a rugby game. Yet they are not unanimously
supported by academic
authors in the field. They are opposed in the
main by those who subscribe to the thesis that wrongfulness is
determined by the
objective,
ex post facto
criterion of
reasonableness and that the perpetrator’s subjective mental
disposition is therefore of no relevance at all (see
eg Van der Walt
& Midgley
op cit
para 60; eg Neethling & Potgieter
op
cit
43-44).
[39] Despite this
opposition, these propositions have become fairly well established in
the decisions of this court. That appears,
for instance, from the
following statement in
Minister of Finance v Gore NO
2007 (1)
SA 111
(SCA) para 86:
‘
We do not
think that it can be stated as a general rule that, in the context of
delictual liability, state of mind has nothing to
do with
wrongfulness. Clear instances of the contrary are those cases where
intent, as opposed to mere negligence, is itself an
essential element
of wrongfulness. These include intentional interference with
contractual rights (see eg
Dantex
Investment Holdings (Pty) Ltd v Brenner and Others NNO
1989
(1) SA 390
(A)) and unlawful competition (see eg
Geary
& Son (Pty) Ltd v Gove
1964 (1) SA 434
(A)). . . .’
[40] Since then this
statement in
Gore
has been confirmed by this court in
mCubed
International (Pty) Ltd v Singer
2009 (4) SA 471
(SCA) para 34;
South African Post Office v De Lacy
2009 (5) 255 (SCA) para 5;
Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd
2008
(6) SA 595
(SCA) para 14,
Le Roux v Dey
2010 (4) SA 210
(SCA)
para 35. (See also Boberg
The Law of Delict
vol 1 (Aquillian
Liability) at 33; Loubser & Midgley paras 8.13.2-3.)
[41] The ground of
justification normally raised by the participant in a rugby game
whose conduct led to the physical injury of
an opponent, is the one
already known in Roman and Roman Dutch law under the maxim
volenti
non fit iniuria
(he who consents cannot be injured). Consent to
suffer physical injury takes two forms: (a) consent to specific
harm, as in
the case of a surgical procedure, and (b) consent to
assume the risk of injury, as in the case of a participant in a sport
assuming the risk of injury that may occur in that sport (see eg
Neethling & Potgieter
op cit
at 103
et seq
; Loubser
& Midgley para 9.3). In the assumption of risk situation it is
generally accepted that the participant assented to
the risks
inherent in that particular activity. (See eg
Santam Insurance Co
Ltd v Vorster
1973 (4) SA 764
(A) at 779-781). These principles
are fairly clear. The difficulty lies in their application – in
deciding in every factual
situation whether or not the harm that
actually eventuated can be said to fall within the ambit of the
inherent risk associated
with the activity, like a rugby game.
[42] From the nature of
things, it is impossible to obtain certainty by formulating rules
that will readily provide the answer in
every case. As I see it, the
best we can do is to indicate broad parameters that will hopefully
assist in the factual inquiry that
will have to be undertaken in
every situation. Proceeding from this premise, the first principle is
that wrongfulness ultimately
depends on considerations of public and
legal policy. Since public policy regards the game of rugby as
socially acceptable, despite
the likelihood of serious injury
inherent in the very nature of the game, it seems to me that conduct
causing even serious injury
cannot be regarded as wrongful if it
falls within the rules of the game. And it matters not, I believe,
whether the conduct was
negligent or intentional. But the converse
does not necessarily hold true. The mere fact that the conduct
causing the injury was
in contravention of the rules of the game,
will not automatically result in the imposition of legal liability.
The late tackle
of an opponent after he has parted with the ball or a
tackle from an offside position or running into the opponent in a
dangerous
way, may break the rules of rugby and may result in a
penalty, but it will not necessarily lead to the imposition of
delictual
liability, even if that conduct was intentional. This is
so, I believe, because public and legal policy will accept this kind
of
conduct as a normal incident of the rugby game or inherent in the
game (see eg S A Strauss ‘
Bodily injury and the defence of
consent
’
(1964) 81
SALJ
332
at 335; J M T
Labuschagne ‘
Straf- en Delikregtelike Aanspreeklikheid vir
Sportbeserings
’ Stell LR 1998 1 72 at 87).
[43] At the other end of
the scale, I believe that conduct which constitutes a flagrant
contravention of the rules of rugby 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. To illustrate this point,
Labuschagne (
op cit
87-8) borrowed an example from the English
case of
R v Billinghurst
1978 Crim LR 553
where it was held
that a scrumhalf who hit his counterpart with a fist in an off the
ball incident and broke his jaw, was liable
for the resulting
damages. Another example given by Labuschagne of conduct which, in
his view, should be described as wrongful,
is that of the rugby
player biting his opponent. I have little doubt that in these
situations our courts can be expected to impose
delictual liability.
[44] Since I agree with
my brother Plasket AJA that the conduct of the appellant in this case
falls squarely within the last mentioned
category of an injury
resulting from a flagrant contravention of the rules, accompanied by
full awareness on his part of the seriousness
of the potential injury
that could ensue, I have no difficulty in endorsing his finding of
wrongfulness.
____________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For the Appellant: R van
Riet SC (with him R G L Stelzner SC)
Instructed by: Visagie
Vos; Cape Town
E G Cooper Majiedt Inc,
Bloemfontein
For the Respondents: J W
Olivier SC (with him A Blommaert)
Instructed by: Allan G
Jones Inc., Cape Town
McIntyre & Van Der
Post, Bloemfontein
1
For
the benefit of the uninitiated, rugby is defined in the
Concise
Oxford English Dictionary
(12
ed) as ‘a team game played with an oval ball that may be
kicked, carried, and passed by hand, in which points are won
by
scoring a try or by kicking the ball over the crossbar of the
opponents’ goal’.
In
this case, the game concerned was rugby union, as opposed to rugby
league.
According
to Wikipedia:
‘
Rugby
union
,
often simply referred to as
rugby
,
is a
full
contact
team
sport which originated in England in the early 19th century. One of
the
two
codes
of
rugby
football
,
it is based on running with the ball in hand. It is played with an
oval-shaped
ball
with
a maximum width and length of 30 centimetres (12 in) and 62
centimetres (24 in) respectively. It is played on a
field up to
100 metres (330 ft) long and 70 metres (230 ft) wide with
H-shaped goal posts on each goal line.’
2
In
terms of rule 20 of the rules of rugby, the purpose of a scrum is to
‘restart play quickly, safely and fairly, after
a minor
infringement or stoppage’. The rule describes a scrum as
follows: ‘A scrum is formed in the field of play
when eight
players from each team, bound together in three rows for each team,
close up with their opponents so that the heads
of the front row are
interlocked. This creates a tunnel into which a scrum half throws in
the ball so that front row players
can compete for possession by
hooking the ball with either of their feet.’ Each front row is
made up of three players.
The player in the middle of the front row
is the hooker. The players on either side of the hooker are called
props and the prop
to the left of the hooker is called the loose
head prop while the prop to the hooker’s right is called the
tight head prop.
3
Rule
20.2(c) regulates the position of the hooker in the scrum. It
provides: ‘Until the ball is thrown in, the hooker must
be in
a position to hook the ball. The hookers must have both feet on the
ground, with their weight firmly on at least one foot.
A hooker’s
foremost foot must not be in front of the foremost foot of that
team’s props.’ Rule 20.3(b) provides
that the props
‘must not support the hooker so that the hooker has no weight
on either foot’.
4
Rule
20.1(f) deals with how the front rows are meant to come together for
a scrum. It provides: ‘First, the referee marks
with a foot
the place where the scrum is to be formed. Before the two front rows
come together they must be standing not more
than an arm’s
length apart. The ball is in the scrum half’s hands, ready to
be thrown in. The front rows must crouch
so that when they meet,
each player’s head and shoulders are no lower than the hips.
The front row must interlock so that
no player’s head is next
to the head of a team-mate.’
5
In
reaching this conclusion, Fourie J relied on and applied
Govan
v Skidmore
1952 (1) SA 732
(N) at 734C-D;
Ocean
Accident and Guarantee Corporation Ltd v Koch
1963
(4) SA 147
(A) at 159C-D;
National
Employers’ General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E) at 440D-G.
6
R
v Dhlumayo & another
1948
(2) SA 677
(A) at 705-706.
7
Santam
Bpk v Biddulph
2004
(5) SA 586
(SCA) para 5.
8
Motor
Vehicle Assurance Fund v Kenny
1984
(4) SA 432
(E) at 436H-437B. See too
Representative
of Lloyds & others v Classic Sailing Adventures (Pty) Ltd
2010
(5) SA 90
(SCA) para 60;
MV
Banglar Mookh: Owners of MV Banglar Mookh v Transnet Ltd
2012 (4) SA 300
(SCA) para 50.
9
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) para 12. See too
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA)
para 12.