Contact sports often lead to the players thereof being seriously injured. Can anyone be held liable for these injuries or are the players taking an inherent risk when participating in these sports? Case law has established some important principles when dealing with this issue. Make sure you know what you are allowed and not allowed to do on the field of play.
Are you in fact consenting to an injury when participating in a dangerous sport? The issue was considered in the 2012 Supreme Court of Appeal-case, Roux v Hattingh. In this case the appellant seriously injured the respondent while performing an illegal and dangerous scrumming manoeuvre, referred to as a jack-knife.
Appeal Court Judge Plasket ruled in favour of the respondent. It was held that the Appellant purposefully injured the Respondent and his actions were found to be wrongful. The legal principle of Volenti Non Fit Iniuria, or the consent to potential damage, would be sufficient to protect a person that injures another in a sporting match, but only in the usual and reasonable course of the specific game.
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 Ryan, it was also extremely dangerous.”
Plasket AJ continues further:
“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.”
It is clear from the AJ Plasket’s judgment that the main issue to be considered when evaluating whether a person should be held liable for an injury caused in a contact sport, should be whether the conduct should be considered to be normal for the specific game being played.
Appeal Judge Brand, in a concurring judgment expands the issue further:
“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”.
It is stated that when an action is of such a nature that it is a blatant breach of the laws of a game, the player reconciles himself with the contravention of such law and the possible consequences and deliberately goes ahead with such action, the player should be held liable. It is important that the meaning behind this passage is not that any injury that occurs as a result of a broken rule of the game, should be punished by law, but only in cases where the infringement is serious and obvious enough to warrant such action.
This would place an overly onerous burden on a person to not contravene any rule of the game to avoid punishment. Imagine a rugby player being held delictually liable for injuring an opposing player when going of his feet a ruck, a common mistake in rugby that should not lead to legal liability. The reasoning behind the judgment in the Roux-case is simply that where a player deliberately and flagrantly breaks a rule of the game and knows that such contravention will or might cause serious injury to an opposing player, he or she can be held delictually liable.
There is therefore no need to alter the way in which you play a game because of the fear of legal consequences. However, be aware that malicious actions on the field of play, may lead to serious repercussions.
This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
• Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72
• Roux v Hattingh 2012 (6) SA 428 (SCA)
Roux v Hattingh 2012 (6) SA 428 (SCA) at Par27
Roux v Hattingh 2012 (6) SA 428 (SCA) at Par28
Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72 78