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[2016] ZAGPPHC 603
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Roux v Member of the Executive Council of the Department of Education, Gauteng and Another (36348/2010) [2016] ZAGPPHC 603 (17 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
17/5/16
CASE
NO: 36348/2010
Reportable:
No
Of
interest to other judges: No
Revised.
MRS
J
ROUX PLAINTIFF
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
THE DEPARTMENT OF EDUCATION OF GAUTENG 1
st
DEFENDANT
HIG
SCHOOL DIE
WILGERS 2
nd
DEFENDANT
JUDGMENT
KHUMALO
J
[1]
This is an action that Mrs J Roux ("the 1st
Plaintiff") instituted in her
personal
capacity and representative capacity on 22 June 2010 as the legal
guardian of her son Tony Roux (who was then a minor
and referred to
as "Tony"), against the Member of the Executive
Council of the Department of Education, Gauteng,
("the
1st Defendant"), and Tony's erstwhile school,
Hoerskool Die Wilgers ("the school")
as the 2nd Defendant,
claiming damages she allegedly suffered as a result of injuries
sustained by Tony during a rugby practice
at the school on 15 April
2008.
[2]
Tony has since attained the age of majority and subsequently joined
as the 2nd Plaintiff.
[3]
The Plaintiffs allege in the particulars of claim, in brief that:
[3.1] Tony was tackled
during a rugby practice by one, Francois Postimus, an educator
at the school in the employ of 1st Defendant,
alternatively of the
2nd Defendant in negligent breach of his duty of care towards the
minor child to:-
[3.1.1]
ensure that the minor child is safe and protected from danger or
harm; and /or
[3.1.2]
provide a safe environment for the minor child during all educational
activities; and /or
[3.1.3]
ensure that all rugby training methods applied are safe; and or
[3.1.4]
provide the minor child with a physically and emotionally safe
environment; and
[3.1.5]
refrain from directly or indirectly physically injuring the minor
child; and/or
[3.1.6]
refrain from applying any physical force on the minor child.
[3.2] As a direct result
of Postimus's breach of duty of care in one or all of the
aforementioned duties Tony sustained a tibial
fracture on the left
and also suffered psychological shock and trauma.
[3.3] Consequent
thereupon he received medical and hospital treatment and will in
future require further medical and hospital
treatment which
will necessitate the incurring of expenses. In addition he
experienced pain, suffering, disfigurement and discomfort,
suffered a
loss of amenities of life which he will continue to experience and
suffer in future. He also experienced shock and psychological
trauma.
[3.4] As a result of the
aforementioned injuries suffered by Tony, the Plaintiffs suffered the
following damages:-
In
her personal capacity
[3.4.1]
Past medical and hospital expenses: R26 983,64
In
her capacity as minor's mother and legal guardian
[3.4.2]
Future hospital, medical and ancillary costs, which include
conservative treatment, physiotherapy, examinations and consultations
with doctors and medication: R8 000,00
[3.4.3]
General damages in respect of pain, suffering, discomfort, loss of
amenities of life, shock and psychological trauma: R
200 000,00
[3.5] In the premises the
Defendants are liable to the plaintiffs, that is l51 Plaintiff in her
personal capacity and to Tony in
the amount of R234 883,64, together
with interest and costs.
[4]
The Plaintiff further alleges that the injuries happened during or at
an educational activity as contemplated in terms of s
60 (1) of the
South African Schools Act 84 of 1996 ("the SASA") that
reads:
"(1) The State is
liable for any damage or loss caused as a result of any act or
omission in connection with any educational
activity
conducted by a
public school
and for which such
public
school
would have been liable but for the provisions of this
section.
(2) The provisions of the
State Liability Act, 1957 (Act No. 20 of 1957), apply to any claim
under subsection ( I).
[5]
Nonetheless the 1
st
Defendant in its Plea disputed
liability on the basis, inter alia, that Postimus is employed by
neither the 1
st
or 2
nd
Defendant but by the
school's Governing Body in terms of s 20 (4) read with
s 20
(10) of
the
South African Schools Act, 84 of 1996
which is insured for that
purpose by Santam Insurance (Pty) Ltd and therefore pleaded non
joinder.
[6]
The Plaintiffs subsequently joined the School Governing Body.
[7]
Another contention that was raised
in limine
regarding the
Plaintiff's failure to comply with
s 3
of Act 40 of 2002 was
resolved before the commencement of the trial, with condonation for
such failure being granted by the court.
[8]
Apart from the aforementioned contentions the 1
st
Defendant furthermore denied having any knowledge of the Plaintiff's
allegations as regards the occurrence of the incident and
the nature
of the injuries sustained by Tony putting Plaintiff to the proof
thereof.
[9]
On the contrary the school admitted that Postimus was at all relevant
times employed by the school and that 1
st
Defendant will
in terms of s 60 (1) of SASA be liable for any damages suffered by
the Plaintiff should the court find that the
school would be liable
but for the provisions of s 60 (1).
[10]
The school further pleaded that the Plaintiff and Tony had knowledge
of the risks of possible injury to the minor child when
partaking in
the sport of rugby, during training and/or playing the sport,
appreciated the ambit of the risk and consented to the
risk,
alternatively that, should the court find that Postimus had a duty of
care towards the minor child and he negligently breached
such duty
then the school pleads that the pt Defendant is liable for any damage
or loss suffered by the Plaintiffs in terms of
s 60 (1) of SASA.
[11]
Unlike the 1st Defendant, the school admitted to the incident
occurring but denied any knowledge regarding the nature of the
injuries sustained by Tony and put the Plaintiff to the proof
thereof. It also prayed for an order for its costs to be payable
by
the 1
st
Defendant in the event that the court find the
school liable for the payment of Plaintiff's damages.
[12]
During the pretrial conferences that were held by the parties, the
parties agreed that the matter will proceed on merits only.
1
st
Defendant abandoned its assertion that Postimus was employed by the
School's Governing Body and agreed that he was employed by
the
school.
[13]
The 1st Defendant further agreed to the incident that the tackling by
Postimus caused an injury to Tony but not admitting to
the nature of
the injuries sustained.
[14]
The 1
st
Defendant further amended its Plea on 3 November
2,014 a day before trial agreeing that Postimus had a duty of care
towards Tony,
however pleading that such duty was circumscribed by
the risk involved inherent in participating in sporting activities
which Plaintiff
and Tony had assumed by consenting to participate in
the sport of rugby at school thereby expressly consenting to physical
force
being applied to Tony during practice and or play, in that case
alleging that the injury suffered by
Tony occurred reasonably
within the ambit of the game of rugby
.
[15]
At the request of the parties an order was made for the separation of
the merits from the quantum and that the issue of quantum
will be
postponed
sine die,
the matter proceeding on the merits only .
[16]
The issue that was to be resolved at the beginning of trial was
whether or not Postimus breached the duty of care he had towards
Tony
in the context of the rules of coaching the sport of rugby and was
such duty circumscribed by the risk inherent in participating
in such
sport (contact sport) and if therefore the injury occurred
reasonably within the ambit of the game.
LEGAL
FRAMEWORK
[17]
The parties agreed that the Plaintiff carries the overall onus to
prove his claim and the duty to begin. Plaintiff was then
to prove
that Postimus failed to act in accordance with the duty of care (was
negligent) (breached the duty of care}; see
Eversmeyer (Pty) v
Walker
1963 (3) SA 384
(T). Plaintiff will do that by setting out
facts that could or should have been foreseen by Postimus. Plaintiff
must establish
that a reasonable man in the position of Postimus:
[17.1] would foresee the
reasonable possibility that the conduct (whether an act or omission)
would injure another's person or property
and cause that person a
patrimonial loss,
[17.2] would take
reasonable steps to guard against such occurrence, and
[17.3] that the Defendant
failed to take such reasonable steps.
[18]
Whilst Defendant carries the evidential burden to prove that such
duty was limited/circumscribed by the risk inherent in such
sport and
whether or not Plaintiff assumed such risk when he consented to
participating in the sport?
and the tackling by Postimus was
within the risk inherent in participating in such a sport
.
[19]
In respect of the
volunti non fit iniuria
raised by the
Defendants, they must allege and prove that Tony and the
Plaintiff knew of the risk of sustaining
an injury
from the training and coaching and voluntarily accepted that
risk; see
Joubert v Combrink
(1980]
2 All SA 205
(T), and that
the injuries must have been sustained in consequence of a risk
falling within the ambit of the consent and the following
elements
must then be proven:
[19.1] That the Plaintiff
had knowledge of the risk;
[19.2] appreciated the
ambit of the risk;
[19.3] consented to the
risk.
[20]
All the above still does not exonerate Postimus from acting with duty
of care and thus negligently, which is where reasonableness
becomes
relevant.
[21]
The supervening injury must have been sustained in consequence of a
risk falling within the ambit of the consent which may
be express or
implied. It can be shown that
the Plaintiff foresaw the risk of
injury and had knowledge and an appreciation of the danger, in that
instance consent will be implied;
see
Santam
Insurance
Co Ltd v Vorster
(1973) 4 All SA558 (A),
1973 (4) SA 764
(A) at
779.
[22]
Now the game of rugby is a physical contact sport involving a great
risk of injury inherent in the game. It is therefore generally
accepted that the participant assents to the risks inherent in the
game. Therefore in a normal game of rugby, a participant can
only be
held liable for injuries suffered by his
opponent if he acted negligently or
with
intent, however if the negligent or intentional conduct causing
the injury is also held to be wrongful; see
Roux v Hattingh
2012
(6) SA 428
(SCA). Generally where the loss resulted from a positive
act giving rise to physical damage to the person or property of the
Plaintiff,
the Defendant's conduct is regarded as prima facie
wrongful; see
Gouda Boerdery BK v Transnet
2005 (5) SA
490(SCA)
para 12. It is trite that it follows that
the onus is on
the Defendant to
rebut the inference of wrongfulness that
arises from the physical harm
(see
Mabaso v Felix
1981 (3)
SA 865
(A) at 871-874.
[23]
In elucidating the aspect of wrongfulness (or unlawfulness) in the
context of sports Brand JA in
Roux
referred to a statement by
Basson & Loubser
Sport and the Law in South Africa, l ed
chapter 5 at 13-14 that was relied upon by the court a quo, that;
"Both 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 standard of care anci skill
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."
(my emphasis)
[24]
The court then has to decide if the harm that actually eventuated can
be said to fall within the ambit of the inherent risk
associated with
the activity of participating in a rugby game, although in this
instance the participation is vis a vis a coach
in a training session
{as compared to one player against the other player). Where the
highest standard of care is expected as they
are to lead by example.
They are expected to encourage safe playing, practicing sound
strategy and enforcing the rules of the high
school and national high
school programs.
EVIDENCE
[25]
According to Tony the incident occurred three months after he started
playing rugby, for the under 14 team. He was 13 years
old boy. The
training sessions were afterschool with Mr Postimus. The injury
occurred during training whilst they were practising
tackling.
Postimus had, in the middle of practice stopped the whole team and,
speaking specifically to Tony said that 'You are
not tackling like I
have shown you and you must not tackle like girls.'
Following his
utterings with an instant demonstration of the 'soft like a
girl' tackle on Tony, by grabbing Tony
by his
hamstring and softly putting him on the ground, falling on top of
him.
Tony says thereafter he was busy getting up from the ground
and not yet ready for another tackle when he was tackled by Postimus
for the second time. His one hand and buttocks had just left the
ground and the left hand still on the ground, when he heard Postimus
saying "this is how you tackle" executing another tackle on
him a lot firmer than the first one. Postimus' left leg was
in front
and his weight went on his knee. Tony says he heard a snap and fell
on his back with Postimus on top of him. Postimus
got up and he could
not move it, he was yelling and saying his leg was broken. Postimus
took him to hospital where they found that
it was indeed broken.
[26]
At the time of the incident, he says there was a group of boys in the
rugby field, divided into small groups of 2 or 3. The
one group was
coached by another coach, De Kock and Tony's group coached by
Postimus. It was three o' clock in the afternoon and
practise had
been going on for some time when the incident happened right towards
the end of the practice.
Postimus was complaining that they were
not tackling properly and motivating them to tackle like men. They
were practising the front
tackle.
[27]
He agreed that he has been practicing at school and playing in
matches where he has been tackled many times from the side and
in
front. He also agreed that Postimus's first tackle was soft and when
he put him down he was lying on his back with Postimus
on top of him.
He was not yet ready for another tackle. Postimus stood up and
moved away to a distance of about 4 meters. He was busy getting up
when Postimus charged and tackled him without warning and that is
when the accident happened
. It was put to him that Postimus was
going to say only one tackle happened and it was from behind. He
insisted that there were
2 tackles and both from the front. He
explained that front tackle meant running with the ball and the
person who would tackle would
be the opponent coming from the front.
He insisted that Postimus was teaching him frontal tackle, tackling
him lying on the ground
that would be a frontal tackle.
Postimus's
body was too heavy for him being a boy of 14. It was put to him that
Postimus came from behind whilst they were both
walking away, he
called him and said "here is how you tackle"
. He agreed
that he did say that but he was not from behind or the back. The rest
of the boys were not on the other side of the
field but around them.
He said Postimus' intention was not to hurt him but unfortunately he
broke his leg.
His leg broke because of the position he was
standing in, he was not ready for another tackle
. The impact on
his bone broke it.
[28]
The second witness was Levy Nel, a Grade 8 learner at the school at
the time of the incident, he was also playing for the under
13
practice on the day of the incident with coach Postimus. He also said
they were busy with some kind of practice when suddenly
Postimus told
them to stop and line up on the lane. They followed the instructions
and Postimus said to them
"they tackle like girls" and
demonstrated a tackle on Tony
. He moved back slowly and laid Tony
down. He had picked Tony up very slowly and dropped him down very
slowly.
Tony was lying on the ground on
his back
. Postimus then said to them "
this is
how you tackle
", and
they heard a snapping noise. When he
was asked what position was Tony he said he did not see that he just
heard a snap
not very long after seeing Tony lying on his back.
He was talking to his friend next to him then he heard the
s
nap,
5 seconds after Tony fell
. Otherwise he could have
seen. This is how you tackle, Postimus told them. Tony was on the
ground swearing at the teacher.
They surrounded Tony whose leg was
broken
.
[29]
The third witness Groenewald, an expert rugby coach put his very long
qualifications on record, inter alia, that he has been
involved in
rugby since 1963 and qualified as a coach in 1973. He attended
training in Europe and Australia, and started coaching
in 1974. In
1979 he couched provincial rugby. He has been inter alia, an educator
for 8 years at FH High Odendaal School and has
extensive experience
in coaching rugby to school boys. At present he trains coaches for
school rugby and is also the Blue Bulls
coach.
[30]
He spoke of a new requirement brought 3 or 4 years ago, that every
coach must have a Boksmart Card that certifies formal qualifications
and involves training rugby coaches, referees, administrators and
players. Each coach is required to attend one and certification
is
valid for 2 years. The primary purpose is to make it safe and to give
all coaches a safe knowledge. They are provided with the
correct
knowledge, skills and leadership abilities to ensure that safety and
best practice principles are incorporated into all
aspects of contact
rugby in South Africa. The coaches are targeted because they are key
decision makers who control both the game
and the players on the
field. They are viewed to be extremely influential on how players
behave both from a safety perspective
and their attitudes towards the
game, other players and officials on the field. Basic safety measures
are taught to help coaches
to coach basic principles of all the best
schools to promote safety rugby techniques and basic medical and
injury prevention practices.
Most of the times in matches or
practices coaches and referees are the only people available to
intervene and ensure the safety
of the players on the field, and are
therefore viewed as the first line of defence in the prevention of
serious and/or catastrophic
injuries. Basic principles of SAFTU
molded to international rugby manual information, level 1. It is an
introduction to beginners
which consists of basic principles with a
primary focus on safety in tackling.
[31]
His evidence on basic principles- he said tackling is one of
individual skills. So when coaching school rugby first thing a
coach
must make sure is that he has a background of contact confidence
redoing the tackle or making the tackle. He mentioned that
side and
front tackle will have the same back effect. On the side and front
tackle basics, the sequence is to show them where you
can tackle a
player, on all the parts that can bend so that he can absorb the
tackle, some positions were to be avoided, that is
above the belt on
the waistline, from the side above the belt, on the side and the
hamstring underneath the short
not on the knee it will break
.
The tackle from behind should be above waist line under the buttocks
you get a kick on the face, grab, pull closer, get your hands
behind
and put the player down. A player can only be rounded but not with a
shoulder.
[32]
In respect of the Receiver - the guy who is doing the tackling must
make sure that (1) his head is always behind the player
( 2) Head
must be up. (3) Eyes open all the time. (4) His
back straight and
contact always on shoulder
( 5) Hands always be lower than the
contact point so that he can be flip the receiver over with his hands
at the back.
Then in the whole process there must first always be
contact confidence
. The tackle done from the side.
B.
The coach is to divide players in groups of two.
The receiver and executor standing far apart with enough space in
between them.
He will change their position with each one getting a
chance, always start with the tackle on the side.
When
one is on their knees tackling should be from the side towards the
tackler. A coach cannot coach the front tackle when a player
is on
his knees, when you are on the side they can roll with the tackle
.
C.
On
Progress of the front tackle - he said when a coach sees that the
players have got contact confidence or he goes where they are
sitting
on their haunches and the tackle will be on their haunches. The
receiver will walk past and be tackled from the side, using
a
tackler's back- so that the players are standing back straight. He
hits the tackler's back above the belt. Drive into the tackle
being
key must get the arms a round - One of many ways of making the tackle
when they start with them not to make the impact hard.
[33]
Groenewald was adamant that a guy like Tony on the ground (whilst
trying to stand up) is not to be tackled. He was asked if
in his
opinion he agrees that for a player in a position like that it is
difficult to absorb the impact. He said all the time,
or most of the
time a tackle is done on the command of the coach so that everybody
knows that they are to be tackled and be ready
for or expect the
impact. There is already a high risk- when you are in such an awkward
position and your hand has just left the
ground. He said Tony seemed
to have been on a crouched position, if you make a frontal tackle it
will be impossible to adher to
the principle of tackle in front. In
the first place, he said the tackler cannot aim above his waist.
When
a receiver is leaning to a forward position how can one get to him
above the waist?
He should be up
straight so as to identify a place to attack safely
.
When his one leg is in front the other one is still lifted from the
ground then you will tackle on the leg,
because
if you go straight for his leg from the front, his leg goes nowhere
to absorb the impact. It does not go with principle
of tackling where
receiver can be tackled-that is a transgression of the basic
principle his leg cannot bend either way.
[34]
On the tackle from behind- the target was not underneath the buttocks
whilst receiving the tackle. Otherwise he will be booted
on the chin
which is dangerous for the tackler. There is no risk of injury to the
receiver but to the tackler. A tackler with more
experience will do
much more complicated moves. Contact and confidence exercises
starting on his knees. With experienced players
it is possible to
move much faster.
In the process of teaching, the coach that is
to tackle a boy getting up is not to execute a full tackle on such a
small player
, instead demonstrate one player on another
boy, because he is in a risk position. He cannot defend himself when
he is in that position.
The risk is if he does not injure one's
ligament around the knee or ankle he will have a fracture.
[35]
In addition
he testified that a tackler is encouraged to move away
once he has effected a tackle. It never happens that a tackled player
still
in the process of standing up gets tackled again. It would be
illegal. It suggests to him, rather improbable that Postimus, a coach
of his caliber, being a level 1coach who would k now about the basic
principles of rugby, a coach of that level would execute a
tackle
that is manifestly illegal
. He said maybe if he can k now the
circumstances under which it has happened he will understand. His
grasp was that when Tony was
standing up he was tackled
so he
viewed it as being the front attack
. If it was a front one and he
was standing a different technique would be applicable. Tony told him
about a frontal attack. In
terms of the International Rugby Body
Level 1 Coaching: Introducing Rugby, which is a Manual of training
coaches, there will be
a penalty or contravention
If a player
tackles another one illegally or contrary to the manual
. If
tackle illegal or indicated by the manual to be so. The rule of the
game is that a player can tackle by whatever way even risking
his
life will not be penalized
if he does not break the rules
.
This is only in a practice field, they will adher to all the
different scope, techniques and rules of the game. There is a
difference-
A player may go for the thigh area tackling the player to
bring him down with his head, he will not be penalized, if he has not
broken any rules.
[36]
The Plaintiff's case was closed. The Defendants proceeded then to
lead the evidence of Postimus who was the sole witness for
the
Defendants.
[37]
Francis Postimus confirmed that he coaches mostly juniors under 14,
15 and 16. He also coached the under 19 at the Springs
Rugby Club.
According to him Tony was injured whilst busy practicing how to
tackle, the reason being that at the last game he did
not defend
properly. They had decided, him and De Kock (the other coach at the
school) that they were going to go through the usual
practice
discipline. They discussed methods of tackling from the manual,
demonstrated and showing them how to do it on slow
procedure and picked up the speed thereafter, how to tackle
from the front, side and behind showing them how it
is done by the book
. After they have done the side tackle, they
progressed on the practice with tackling and with walkthroughs,
making it more acceptable
or gaining experience. They formed 4 in a
team, 1was to run from one side line, player to follow and player 2
to complete to tackle
from behind, if they complete it player 3 was
now to be tackled by no 4 from side line to side line. There were 4
lines divided
into 4 groups. Player behind to tackle the player in
all 4 groups.
[38]
The boys were joking around every time he looked at them. They
decided to get better control and decided that there will be
divided
into two groups. He sent his group to complete the moves. Mr De Kock
took the other group. Tony was in his group. He instructed
Tony to do
the exercise. On their return he instructed them to do it again, they
turned around and did it again, that was the overtime.
They turned
around reluctant to do so, and he again asked Tony to do it again.
Due to the boys being reluctant, he said 'this is
how you tackle,'
approaching Tony and he said he can demonstrate the tackle the way
he has done it. He went on to show them how to make contact with left
shoulder under his buttocks closed right arm on his wrist
brought
Tony down to complete the tackle. He did not close his left hand
instead of closing left hand he used it to minimize impact
on the
ground. He concluded the tackle going down with Tony and Tony
was
lying on the ground the back of Postimus head was behind Tony who
started mourning
. He says Tony made a comment that he broke his
leg. He told Tony to stop joking around.
At that moment Tony got
up still mourning. He asked Tony to turn on his back
. Tony wanted
to get up and he told him to stay down. At that stage De Kock moved
the whole team to the other side of the field.
After inspecting
Tony's leg he concluded out of his experience as a medical
orderly
that he could not see anything wrong. Tony insisted that his leg is
broken
. After a while he
observed some discoloring and
swelling on his lower leg
and he made a decision and informed De
Kock to take Tony to hospital for safety sake.
[39]
At the time he had completed level 1, which entails that coaches are
to follow instruction manual, how to coach safe rugby.
He was
involved for about 6 years. He has used training correctly he had not
had anything like this in the six years that he has
been involved in
showing players how to do some things themselves.
He had no such
incident before like he did not close his left arm, to render full
impact on the ground
. He was supposed to close both hands
Tony
was the biggest of the group
.
[40]
Regarding tackling him-
When they were on the ground and getting
up, he was on his way walking away from Tony and he tackled him from
the back.
He did not want to cause him harm as they do not have
enough players. Booksmart system came into effecin 2011and he went in
on
a course in 2010. It was the last time he went on a course.
[41]
Under cross examination
he said if Tony came and said he was
tackled whilst standing it would be difficult totally insane risk of
injury is a given. He
was not prepared to tackle in that fashion its
wrong
. They players were playing sideline to sideline and were
fooling around. He said he instructed them to do it again. On the way
back they were not doing it correctly still running around. So he
said they must do it again, they turned around reluctantly. It
was
put to him that
so they were not expecting a couch to tackle them
without warning. He said, replying to that question 'that is how a
person tackles.'
They were moving away. When asked whether Tony was
not warned in advance? He said, he clearly said to the players that
"that
is how a person tackles",
that is supposed
to indicate
that something is going to happen
and they must be prepared. He considers it enough if it is in a
practice environment.
[42]
It was his further testimony
that the tackle was right because
they were informed that this is how you tackle whether he was on the
ground or at the back of
that person.
With a controlled situation
it can be done. He said when he demonstrates a skill he has the
attention of the players. He may say
they were not co-operating and
that is where the problem could have happened, since the proper way
of demonstrating a technique
in the process of coaching is to have
the attention of the players. He did not agree when it was put to him
that he was frustrated.
But agreed that the players were not
paying attention or looking at their shoulders thinking what is
coming now. The incident
therefore could have happened because of
lack of attention or cooperation. He was asked if as a coach he would
tackle the players
from behind. He said he only tackled Tony. He went
on record that he never tackled from the front to perform safely.
That teaching is totally different that is why he cannot perform a
frontal tackle on a player whilst coaching. It is difficult to
even
initiate that he did a frontal tackle. He agreed that tackling a
player who does not expect a tackle is manifestly illegal
and worse
is a tackle from behind.
ANALYSIS
OF THE EVIDENCE
[43]
There is corroboration in the evidence of the Plaintiff's witnesses
that Tony was tackled twice by Postimus and in both
instances
being a frontal tackle. They both testify that the first one was a
demonstration of what Postimus said was a girlie tackle,
which was
softly executed with no harm to Tony. The tackle followed immediately
after Postimus criticised the way they do the tackle.
They say
Postimus did not issue a warning that he was going to tackle Tony, he
just simultaneously tackled Tony whilst complaining
about the way
they were doing the tackle. They say the second tackle followed
quickly after Tony's fall from the first tackle,
also without a
warning, such that Nel did not even see it happening but only heard
the snapping sound. If there was a warning,
this was during practice
they would have expected it and would have been watching to see how
the tackle is executed. Tony says
he was still trying to rise up from
the first fall on his back, one hand was still on the ground and
lifting his buttocks, when
he was tackled again. It was
unexpected and so fast that Nel missed its execution which he says
could have happened 5 seconds
after the first one. Both Tony and Nel
were impressive as witnesses, and never contradicted themselves. Most
importantly very sincere.
They agreed that Postimus did say, "this
is how you do it" but which was said with the tackling of Tony
ensuing. Tony
even said that Postimus' intention was not to hurt him
but unfortunately he broke his leg. He also correctly and honestly
said
his leg broke because of the position he was standing in, he
was not ready for another tackle.
The impact on his bone broke
it. I find both Tony and Nel to be credible witnesses.
[44]
Evidently, Tony and Nel's testimony establish facts that show that
Postimus was negligent and that such negligence resulted
in Tony
being injured. Therefore at the end of the Plaintiff's case there was
prima facie evidence of negligence from which arose
an inference of
wrongfulness. The Defendant had then to rebut the prima facie
established wrongfulness inferred from the established
negligence by
proving facts that indicate that Plaintiff had knowledge of the risk,
appreciated the ambit of the risk and consented
to the risk.
[45]
Postimus on the other hand insisted that there was only one tackle
and it was a back tackle. Now the problem with that version
is that
he also said about the tackle, that
"When they were on the
ground and getting up, he was on his way walking away from Tony and
he tackled him from the back."
The statement contradicts,
first, that he tackled Tony only once since he is confirming that him
and Tony where rising or getting
up from the ground. (How did they
end up on the ground?) On a balance of probability they were getting
up from the fall of the
first tackle. He says he got up and was on
his way walking away from Tony when he then tackled Tony allegedly
from the back. Since
Postimus was on top, he would
have got up and was walking away from Tony after the first tackle (as
it should
be) and then tackled him again, which was the second
tackle. Tony also said in respect of the second tackle Postimus got
up from
on top of him and moved about 4 meters
away. Postimus then charged and executed his second tackle
whilst he was still getting up from the first
tackle. Postimus further talks of the time when they were fooling
around and not cooperating after he had told them to do it again. He
says he then approached Tony and tackled him. On a balance
of
probability that was the first tackle as it was alleged by Tony and
Nel, and the tackle was also from the front. Postimus' answer
to
Plaintiff's counsel did not make sense as well when he said "if
Tony came and said he was tackled whilst standing it would
be
difficult, totally insane because risk of injury is a given. He was
not prepared to tackle in that fashion its wrong. That is
an
incongruity. He is therefore confirming that Tony was in a crouch,
not standing straight when he tackled him. A crouch which
was as a
result of the first tackle. He was therefore not telling the truth
about the tackle being only one. It was also evident
that his
evidence not true that he tackled Tony from the back.
[46]
His refusal that he demonstrated the front tackles were absurd as
well because he confirmed that during the tackle practice
he
demonstrated and showed them how to do the tackles on slow
procedure and picked up the speed thereafter, demonstrating and
showing
them how to tackle from the front, side and behind, showing
them how it is done by the book.
[47]
Postimus also testified that the said
tackle was right because
they were informed that this is how you tackle whether he was on the
ground or at the back of that person
as a result sufficiently warned
.
According to him by saying to them, that "this is how you
tackle" the players should have expected that a tackle by
him
was imminent, therefore Tony a nd the others should have expected a
tackle. Whilst at the same time conceding that when a coach
demonstrates a skill the attention of the players is required and the
process must take place in a controlled manner. He was certainly
not
in control, by his version they were not paying attention or looking
at their shoulders thinking what is coming now. He says
he uttered
the words whilst behind the players who were walking away, followed
by the immediate execution of the tackle on Tony.
How was Tony or any
of the boys supposed to have known that an immediate demonstration
upon one of them was intended or to be aware
which one of them was
targeted for the tackle? He was well aware as he conceded that they
were not paying attention and knew the
consequences of demonstrating
a tackle on a player that is not paying attention but nevertheless
knowingly executed the dangerous
tackle on Tony. It also cannot be
said that the players were alerted to the ensuing tackle. No matter
how we look at it, whether
done from the front or back, the tackle
executed on a player in that manner was inappropriate, neither was
the alleged warning
proper or sufficient. It did not give Tony an
opportunity to anticipate the tackle and be ready for it. He was also
on a crouch
and therefore could not be tackled safely without an
injury a fact that Postimus would be aware of as the coach.
[48]
Furthermore Tony would not have been ready for a simple reason that
as a 13 year old boy he would not have been expected to
know how to
deal with a full tackle of a grown man of Postimus's size. He first
has got to be taught how to deal with a tackle
of that magnitude and
be contact confidence. Postimus realizing that offered an excuse that
Tony was the biggest of the group.
When Tony signed up, he was not
assenting to a risk that included physical harm by a rugby coach. The
risk posed by Postimus goes
beyond the inherent risk expected from
the game, which is recognized across many countries. In the state of
Vrginia in
Koffman v Garnett,
265 VA 12( Va 2003)
, a middle
class school football player sued his football coach for negligence,
assault, and battery after the coach thrust his
arms around the
player's body, lifted him off his feet, and slammed him to the ground
to display proper tackling technique. The
coach weighed approximately
260 pounds compared to the boys 144 pounds. The force of the tackle
broke the humerus bone in the boy's
left arm. In finding for the boy,
the Supreme Court of Virginia held that the boy consented to physical
contact with players of
like age and experience but that he did not
expect or consent to his participation in aggressive contact tackling
by adult football
coaches.
[49]
The extent of Postimus' negligent conduct is exposed and clearly
outlined by Groenewald's testimony on the principles and rules
applicable in coaching rugby especially at school level. He confirmed
that the proper way of demonstrating a technique in the process
of
coaching is to have the attention of the players. The expert's
version which is very lucid and logical is that it is negligent
and
illegal to execute a tackle like that as a coach, rather it be done
with the boys matched against each other for the simple
purpose that
their bodies are small and will not be able to deal with a tackle of
a grown man. Most of all the tackle must be anticipated
as well
because if received without anticipation it can result in a serious
injury. He explained that
in the process of teaching, the coach
that is to tackle a
boy getting up is not to
execute a full tackle on such a small p
layer, instead
demonstrate one player on another player, because he is in a risk
position. He cannot defend himself when he is in
that position. The
risk is if he does not injure his ligament around the knee or ankle
he will have a fracture. To that Postimus
proffers an irrational
excuse or justification that Tony was the biggest amongst the boys.
He is still required to exercise the
same duty of care and adher to
the same basic principles and rules of coaching 13 year olds,
irrespective of the player's physique,
particularly one who was only
3 months in the game.
[50]
Groenewald said
all the time, or most of the time a tackle is done
on the command of the coach so that everybody knows that they are to
be tackled
and be ready for the impact. I would add that the tackle
that is expected and whose risk he has consented to is that of his
fellow
players. He pointed out that there is already a high risk-
when you are in Tony's position, rising from the ground, which is an
awkward position and his hand has just left the ground. He said Tony
seemed to have been on a crouched position, if you make a
frontal
tackle it will be impossible to adhere to the principle of tackle in
front. In the first place the tackler cannot aim above
his waist.
When a receiver is leaning to a forward position how can
one get to him above the waist?
He said a player
should be up straight so as to identify a place to attack safely.
When he was in the position that Tony was, with
his one leg in front
the other one still lifted from the ground then the tackle will be on
the leg, and
if you go straight for his leg from the front, his
leg goes nowhere to absorb the impact. He said that does not go with
principle
of tackling where receiver can be tackled, because his leg
cannot bend either way, that is therefore a transgression of the
basic
principle
.
[51]
The second tackle's ghastliness is exposed by Groenewald's statement
that a tackler is encouraged to move away once he has
effected a
tackle, which is something that the coach is to encourage to the
players. Since, he says
it never happens that a tackled player
still in the process of standing up gets tackled again. He says it
would be illegal
and suggests to him, rather improbable
that Postimus in his caliber, being a level 1 coach who is supposed
to know about the basic
principles of rugby, a coach of that level
would execute a tackle that is manifestly illegal. He should also
know that with the
front tackle key factors had to be known by the
receiver of the tackle what should he do to receive the tackle
safely
. With his experience Groenewald would know all these and I
have no problem in relying on his coherent and lucid evidence. On the
other hand Postimus' expertise are suspect as he has not only
contradicted himself, his evidence is also improbable. He also has
not bot he red to undergo constant training as a coach to bring up to
date his knowledge and capabilities.
[52]
Postimus' conduct was not only grossly negligent, but unreasonable.
He owed Tony and the players a duty of care and breached
such duty
when he failed to ensure their safety by warning Tony and the other
players properly and sufficiently of the imminent
danger or risk
posed by the tackle that was to be demonstrated by him on Tony and
make sure that they are paying attention. His
conduct was
unreasonable when he proceeded to tackle the young player, the danger
he posed being outside the inherent risk associated
with the game of
under 13 players (a tackle by the coach instead of a fellow player).
Postimus agreed that
tackling a player who does not expect a
tackle is manifestly illegal and worse is a tackle from behind by the
coach on the young
player.
Tony's injury is directly connected
(linked) to Postimus' unreasonable conduct of deviating from or
acting contrary to the basic
principles and rules of coaching the
game from his level 1 training. Under the circumstances 1
st
defendant failed to discharge the onus of proving its reliance on the
plea of
volenti non fit injuiria.
[53]
I accordingly make the following order:
[53.1] The 1
st
Defendant is liable and ordered to compensate Plaintiffs for 100% of
their proven or agreed damages resultant from the injury
sustained by the 2nd PIaintiff.
[53.2] The Defendant is
ordered to pay Plaintiff's costs to date.
__________________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the Plaintiff: ADV F
FERGUSON
Instructed
by:
WEAVIND & WEAVIND
Tel:
(012) 346 3098
Ref:
D Van Wyk/MD/R36135
For
the Defendant: M JOZANA
Instructed
by
STATE ATTORNEY
Tel:
(012) 309 1500
REF:
3756/10/Z77/sc