POST GRADUATE DIPLOMA IN SPORTS MANAGEMENT

Seven

Sports Injuries/Accidents: Criminal Law and Delict

©Andrew Breetzke
 SPORTS INJURIES/ACCIDENTS: CRIMINAL LAW
and DELICT

INTRODUCTION

Ronaldo, Bobby Skinstad, Andre Snyman, Monica Seles – all examples of athletes that have
suffered long-term injuries, as a consequence of on the field, and off the field, play. Injuries
are part of sport. So too, are injuries to spectators – normally less in
occurrence, but often fatal and with more victims; one just has to
think back to the Hillsborough disaster. All these incidents have s
number of possible legal repurcussions.

As players become more professional and more money pours into

sport, sports related litigation is becoming more common. In this
regard there are 2 possible areas of legal action; public law actions
and private law actions.

CRIMINAL LAW

The criminal law is an element of the public law that governs relationships between the State
and the citizen. Therefore just as criminal law would be applicable in the case of Joe Soap
assaulting a fellow citizen in the street; it would also be applicable in the case of Joe Soap
assaulting his opposing wing on the soccer field.

The criminal law would only be applicable if the athlete commits an act that is not within the
rules of the game. If A was to walk down the street and be viciously tackled by B from
behind – causing him to break his leg; this could be regarded as assault in terms of criminal
law. However, If A did the same vicious tackle as B was on his way to score a try, it would
be acceptable as his act was within the rules of the game – the broken leg would be an
unfortunate consequence.

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There have been relatively few criminal law cases in the arena of sport, one of the most
interesting is R v Billinghurst [1978] Crim LR 553. In this matter, the incident took place on
the rugby field. The accused punched an opposing player, breaking his jaw in a number of
places. Evidence was lead that punching occurred as part of the game of rugby, and that the
victim himself had punched in the past. This was use of force, which went beyond the rules
of the game. The accused was convicted of assault with intent to do grievous bodily harm.

Criminal law is normally reserved for incidents/crimes that pose a threat to members of
society. Society accepts that incidents of misconduct on the field should be dealt with by the
relevant sporting authority. Add to this, the overburdened criminal law system in South
Africa, the relevance of criminal law in sport will continue to be limited.

THE LAW OF DELICT

A: General

A delict is a culpable, wrongful act by a person which causes patrimonial loss to another or
which impairs his personality. A delict is also known as a wrongful act. The wrongdoer is
then obliged to compensate the victim for the wrongful act.

Delict, is part of that law which governs relationships between private individuals (private
law). A delict gives rise to a private law action which one person can institute against
another. The purpose of a delictual action is to claim compensation from the wrongdoer for
the loss or injury caused by him. Where an individual commits a wrongful act against an
individual it can also be a crime – a Public law matter. A crime is an illegal culpable act.
The State can prosecute a person for a crime which he committed and punish him for his
violation of his the public interest. These sanctions are of a punitive nature.

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B: Elements of a Delict

1. General

A delict has 5 key elements that must be present. These are:

(a) An act;

(b) Wrongfulness;

(c) Fault;

(d) Damage/Loss

(e) Causation.

Each of these elements must be present before a person can be held liable in delict. These
elements are discussed in detail below.

2. The Act

This refers to the willful action/conduct by an individual. The wrongdoer, therefore,

makes a conscious decision to act in a certain way. Where a person acts while he is not in
control of his mental capabilities (eg. while in a trance or during an epileptic fit), the
resulting conduct is not determined by his will. Such a person cannot be held liable for
the consequences of his actions. These acts can be positive actions or actions by
omission. The generally accepted omissions are the following:

S v Dhlamini 1955 1 SA 120 (T);

S v Ramagaga 1965 4 SA 254 (O);
S v Erwin 1974 3 SA 438 (K);
S v Smit 1963 4 SA 824 (W)

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(a) A person creates a potentially dangerous situation and fails to remove the danger.

This is also known as an omissio per commissionem. If someone creates a potentially

dangerous situation, and then fails to remove the danger, which then results in loss or
damage being caused to another, he will be held liable for such loss or damage. A
legal duty rests on the wrongdoer to prevent the potential danger from becoming a
real danger. If this legal duty is not fulfilled, loss or damage is caused to another
person.

Halliwall v Johannesburg Municipality 1012 AD 659

For example, a torrential downpour in Newlands causes a blockage in the drainage of

the rugby ground. The groundstaff dig a hole near one of the entrances to the ground
to assist with drainage. The WPRU will be held liable for loss or damage on the
grounds of delict where they fail to fill up the hole properly, and someone who walks
past at night falls into the hole and breaks his ankle. The Union’s failure to fill the
hole (the potentially dangerous situation which they created), gives rise to delictual
liability.

(b) Failure to exercise control over a dangerous object.

Where a person has control over a dangerous object, and he fails to exercise proper
control over it, with the result that loss or damage is caused to someone else, the
wrongdoer is held liable for the loss or damage.

Kruger v Coetzee 1966 SA 428 (A)

Other acts that can take place by omission are:

(c) Occupation of a public office,

(d) Positive action required by statutory provision.
(e) Special relationship between the parties.

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3. Wrongfulness

Certain subjective rights are recognised in private law, (eg. real rights (such as
ownership), personal rights or legal claims (such as the right to claim payment in terms of
a contract sale), as well as personality rights and immaterial property rights.) Any
infringement upon a person’s subjective rights, which has a prejudicial influence on that
right, is deemed wrongful. There must therefore be an act and a consequence. The
infringement of the rights must also be unreasonable in accordance with the accepted
norms of society. There are a number of grounds upon which a wrongful act can be
justified, these are as follows:

Grounds of justification

(a) Self-defence

Where a person protects his interests (or those of another person) by defending
against an unlawful attack or imminent unlawful attack, and in the process causes
harm to the attacker, the former does not act wrongfully. The requirements for a
successful plea of self-defence are as follows:

• There must be a wrongful attack by another person;

• The attack must have commenced or be imminent, but not yet have been
completed;

• The act of defence must be aimed at the attacker, although the initial attack does
not necessarily have to be aimed against the defendant;

• The act of defence must be necessary in order to protect the right threatened by
the attack (there must be no other means to protect the rights), and must be
proportionate and not be more harmful than is necessary.

R v Van Vuuren 1961 3 SA 305 (OK);

S v Van Wyk 1967 1 (SA 488 (A)

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(b) Necessity.

In this instance there is no attack from another individual. The individual is placed in
a position by a greater force, the consequence of which is that in order to protect
his/her interests, the indivdual infringes upon the interests of another. The interests of
another person could therefore be harmed lawfully. The state of necessity can be
caused by human conduct or by forces of nature. The requirements for a successful
plea of necessity are the following:

(a) The state of necessity must exist or be imminent;

(b) A person could protect his own rights or the rights of another during the state of
necessity;

(c) Conduct during a state of necessity will only be justified if it is the only way in
which the threatened interest can be protected.;

(d) The interest which is infringed upon in the state of necessity should not be greater
than the interest which is protected.

Eg. Joe Soap is watching a match at Newlands. He is standing in standing room.

During the course of the match, an advertising board falls from the stadium roof and
falls on a path towards Joe. An ice cream vendor sees the advertisement fall and
believing that it could seriously injure Joe, tackles him out of the path of the board. In
being tackled, Joe breaks his arm. Joe would not be able to claim compensation from
the vendor as the vendor acted in a state of necessity and did not act wrongfully.

S v Pretorius 1975 2 SA 85 (SWA);

Stoffberg v Elliot 1923 CPD

(c) Consent to Injury.

A person, with the capacity to act, may waive his rights to bodily integrity and
consent to an injury being done to him. The following requirements have to be met:

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 (a) The consent must be given as a conscious expression of the injured party’s will;

(b) The consent can be given expressly or tacitly;

(c) The injured party must have the serious intention to actually consent to the injury;

(d) The consent must be given voluntarily;

(e) The consent must be lawful, and not be against the public interest or good morals;

(f) The consenting party must be fully aware of the rights he is waving;

(g) The wrongdoer must act within the limits of the consent given by the injured
party.

Jordan v Delarey 1958 1 SA 638

(d) Voluntary assumption of risk.

Voluntary assumption of risk can be regarded as a type of consent to injury. In this

instance the injured party merely expresses his willingness to subject himself to the
risk and subsequent injury. A person will not be able to consent to physical
mutilation, but could accept the risk of potential mutilation. Mere knowledge of the
risk is not sufficient. The injured party must have consented to run the risk. The most
obvious example of this type of assumption is in boxing: A boxer who decides to
participate in a boxing match accepts the risk of being injured during the fight. If his
opponent injures him, he cannot claim from his opponent in delict.

(e) Provocation

Where someone is taunted or incited towards injurious conduct by the words or

actions of another, provocation takes place. The injured person, who provoked the
other, forfeits his right to claim damages. The wrongfulness of the defendant’s
conduct is set aside.

Other Grounds of Justification include Unauthorised Agency and Authority.

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4. Fault

Before someone can be liable in delict, the wrongful conduct must be blameworthy
(culpable). This means that the person who committed the wrongdoing, can legally be
blamed for his conduct. There are two forms of fault, namely intent or negligence.

(a) Accountability.

Accountability is a requirement for blameworthy conduct. This means that the

wrongdoer must be accountable at the time of his conduct to be blamed for such
conduct. He must possess the necessary mental capacity to distinguish between right
and wrong and be able to act accordingly. A subjective test is applied each time, in
that each case is judged on its own facts and merits, and each person’s own abilities
are judged in order to determine whether he can legally be blamed for his conduct. A
person can be incapable of being held accountable due to the following reasons:
youth, insobriety, insanity, anger, etc.

Weber v Santam Insurance Co 1983 1 SA 381 (A)

(b) Intent.

Intentional conduct is present if the wrongdoer directs his will at achieving a

particular result while being aware of the wrongfulness of his conduct. Three forms
of intent exist, namely:

a) Dolus directus, where the wrongdoer directed his will at achieving a particular
result;

b) Dolus indirectus, where the wrongdoer proceeds to act, despite being aware of or
sure of the fact that a certain consequence will invariably follow;

c) Dolus eventualis, where the wrongdoer foresees the possibility that a certain
consequence might follow, but proceeds to act in spite of this.

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(c) Negligence.

Not all wrongful acts are intentional. Where a person’s conduct does not conform to
the standard of conduct which could legally be expected of him in those specific
circumstances, his conduct is negligent. The conduct is not in accordance with that
expected of the reasonable man. Conduct can only be negligent if it is certain that the
reasonable man would have acted differently in the same circumstances. The
question asked is: would the reasonable man have foreseen the consequences of his
actions, and would he have prevented them from happening?

Certain exceptions to the reasonable man test exists. Experts are expected to act with
a greater degree of care and caution than the reasonable man. Children, on the other
hand, are tested according to the standards of the reasonable man, provided that the
child has the required accountability, and is able to distinguish between right and
wrong and act in accordance with that knowledge.

Hershel v Mrupe 1954 3 SA 464 (A)

Ngubane v SATS 1991 1 SA 756
Botes v Van Deventer 1966 3 SA 182 (A)

(d) Contributory Negligence.

The prejudiced party can also be contributory negligent. Where, at the time of the
wrongdoer’s harmful conduct, the prejudiced party’s own conduct contributed to his
loss or damage, the prejudiced party is expected to bear some portion of such loss or
damage. Contributory fault can consist of either contributory intent or contributory
negligence, ie; where the conduct of neither the wrongdoer nor the injured party
conforms to the legally required standard of conduct. Both are at fault in respect of
the damage caused. This is most commonly evident in motor vehicle accident cases.
Eg. Joe Soap is driving his car down Dorp Streets – he is exceeding the speed limit by
20 km per hour. Austin Bond is coming out of Ryneveld Street and stops at the stop
street but fails to display sufficient caution – he pulls off and hits Joe Soap’s BMW,

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 causing extensive damage. It is obvious that Austin is negligent, but Joe is also
contributory negligent in this matter.

5. Damage/Loss

The culpable, wrongful act must cause patrimonial loss or the impairment of personality.
A person can only be held liable in delict for actual harm or damage caused by his
conduct. The objective of a delictual claim is to enable prejudiced party to claim
compensation from the wrongdoer for the harm caused. The term “loss” refers to
patrimonial loss (a reduction in the size of the aggrieved party’s financial estate).
“Damage” refers to the moral or sentimental damages which someone suffers due to an
action which impairs elements of the latter’s personality (eg. where his sense of honour is
offended).

E.g; Joe Soap is walking down the street and Mike Tyson, walks by and gives him a
funny look. Joe takes no nonsence – turns and hits Mike viciously in the face,
fracturing his nose and jawbone. What damage/loss will innocent Mike be able to
claim for?

When determining the loss, the aggrieved party’s patrimonial position prior to the
commission of the wrongful act must be compared with his patrimonial position after the
commission of the wrongful act. There is an obligation on the prejudiced party to
mitigate his loss.

6. Causation

There must be a nexus/link between the act and the loss or damage suffered. Where this
crucial link is missing, the so-called wrongdoer cannot be held liable in delict.

A distinction can be drawn between factual causation and legal causation. If the unlawful
conduct is taken out of the equation, and the result also falls away, a casual nexus/link

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 exists between the act and the result. This is factual causation. Legal causation seeks to
limit the consequences of the unlawful act to what can be regarded as reasonable.

S v Mokgethi 1990 1 SA 32 (A)

C: Delictual Remedies

South African law recognises three possible actions that the prejudiced party can institute
against the wrongdoer. They are the actio legis Aquiliae, the actio iniuriarum and the action
for pain and suffering.

1. Actio legis Aquiliae

This action can be instituted to claim damages for financial loss caused by of culpable
conduct. The right to claim from the wrongdoer can be transferred to another person,
enabling him to recover the amount from the wrongdoer.

2. Actio iniuriarum

The actio iniuriarum is used to claim for the impairment of one’s personality. The
purpose of this action is to compensate for the intentional injury to one’s bodily and
mental integrity. Because this action is bound to the person of the injured party, it cannot
be ceded to another.

3. Action for pain and suffering

Where the impairment of a person’s personality was caused by negligent conduct, this
action may be instituted for the recovery of satisfaction for pain and suffering. Once
again, the amount of satisfaction is for the personal benefit of the injured party, and the
action cannot be ceded to a third party.

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DELICT AND SPORT

A: General

The principles of the law of delict apply to sport as they would to any other scenario in
society. This would relate to 3 possible areas, namely, personal injury, violence and
spectator injury. There have already been a number of cases involving sport in South
African legal history.

Boshoff v Boshoff 1987 2 SA 694 (O)

In this matter, the claimant was hit on the head during a squash game, by his
opponent’s racket. His right eye was injured. The court dismissed the
claimants claim on the grounds that the claimant, in playing the game, had
consented to the risk of injury. The specifically referred to participants in sport
and stated:

“… dit is nodig dat ‘n bona fide sportman wat n medespeler per ongeluk –
soos dit in die algemene spreektaal bekend is – op redelike wyse n besering
toedien hierdie verweer met, breedweg gestel, “knowledge, appreciation and
consent” tot inhoud … tot betrekking kan he. En in hierdie verband is dit
nuttig om te onthou dat die begrip “in volentem” nie n begeerte om beseer te
word vereis nie maar slegs net n juridiese “wil” om beseer te word of die
risiko van besering te dra…”

In the matter of Clark v Welsh 1975 (4) SA 469 (W) a golfer teed up her shot
and in making the shot the ball traveled at 90 degrees to the intended direction,
hitting a playing partner. The partner instituted delictual action on the basis of
negligence. The court dismissed the claim and stated that:

“… the ordinary principles of negligence as it exists in our law are to be

applied having due regard to the circumstances of the game in which the
plaintiff and defendant were engaged, one of those circumstances being the
inferences which can fairly be drawn by the defendant from the fact that the
plaintiff participated voluntarily in the game with her.”

In participating voluntarily in a game, the victim therefore consents to the possibility of

injury and limits the possibility of pursuing a delictual claim. However, an act that is a
serious and deliberate breach of the game rules could be regarded as unlawful and as

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such, open the door to a possible claim. The courts would take a number of factors into
account to determine unlawfulness and fault – these would include the nature of the sport,
whether the act was deliberate; the extent of risk; the nature of possible injury; alternative
precautions.

There are a number of parties who could be in the arena of sport. These include
participants, coaches, referees and match officials, organisers, promoters, stadia owners,
school supervisors etc.

• Referees/Match Officials:
In the well-known UK case of Smolden v Whitworth [1997] ELR 249 (CA), an
U19 front row player was injured when the scrum collapsed. The referee was held
liable as he had not enforced the proper manner of engagement when the scrums
were set.

• School Supervisors
There is always a duty of care on supervisors and teachers to exercise reasonable
care over children. Therefore if a teacher were to allow pupils to play a game of
touch rugby, whilst a lawnmower is being used on an adjacent field – he/she may
be failing to exercise due care if a pupil were to run onto the field and be hit by
the mower [Knouwds v Administrator, Cape 1981 (1) 422 (C)]. Where children
are involved, however, it must be accepted that they also act on impulse, and their
actions are often not predictable.

• Stadia Owners/Promoters
Stadia owners and promoters are expected to provide spectators with appropriate
safety measures to minimise risk. There are specific risks that are unique to
different sporting events, eg motor racing, - organisers must take reasonable
precautions to limit the risks that these events might pose. However, an injury
which occurs in the natural course of a game, eg a cricket ball hitting a spectator,
would not give rise to liability.

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 • Coaches
Coaches, too, must exercise due care in training his/her athletes. A number of
factors would be relevant in this regard – the nature of the sport, age and maturity
of the athletes, level of expertise of the athletes etc. [see Broom v Administrator
Natal 1966 3 SA 505 (D)]

B: Specific Sports

(a) Soccer
Where a player committed a late tackle on an opponent, injuring the opponent seriously
the court held that there was an obvious breach of the player’s duty of care to his fellow-
player. This behaviour was regarded as falling below the standards, which might
reasonably be expected of a soccer player. [Condon v Blasi [1985] 1 WLR 866 (CA)]

This is an example of a deliberate, intentional, breach of the rules of the game and as such
was regarded as unlawful

(b) Cricket
The game of cricket is similar to golf in that accidents occur even when the participants
are attempting their level best to play the game without hitting a false shot etc. Many a
golfer has attempted to hit a perfect drive, only to see the ball travel onto the next fairway
– this is a fact of golfing life. In many cases, claims by individuals who have been
injured are brought against the club and/or officials and not the players. In the matter of
Bolton v Stone [1951] AC 850, Ms Stone was hit by a cricket ball outside her house,
struck from nearby Cheetham Cricket Ground in Manchester. She sued the club on the
grounds of negligence and nuisance. A wall surrounded the ground and evidence was
lead that balls only rarely hit over the wall – no one had been hit previously. The risk of
injury was therefore too remote and there was therefore no negligence on the part of the
club.

Compare the above facts to the following: Over a year of cricket being played at
Newlands cricket ground, 23 sixes are hit over the railway stand boundary into the

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 parking area at Stokers. During a one-day international against Australia, Darryl
Callaghan hooks Shane Waugh over square leg for six. The ball clears the boundary and
sails into the parking area of Stokers, hitting a patron on the head – killing him instantly.
Given that balls were regularly hit over the railway line, should the authorities have take
precautions? In there failure to do so negligent?

(c) Rugby
Rugby, by its nature, is a physical sport. During every rugby game there are a number of
injuries that occur – some minor, many often serious. Where injuries occur during the
normal course of the game, there are no grounds for action – however, if an injury occurs
as a consequence of play outside the rules of the game, the may be an action for damages.

In the Australian matter of Hyde v Agar, Worsley v Australian Football Union Ltd 1998
45 NSWLR, 2 rugby players were rendered paralysed due to collapsing scrums. The
incidents occurred when the packs engaged, but were not quite ready to do so. Damages
were claimed from the opposing clubs, match referees, the referee’s association, the
Australian Rugby Football Union, the Sydney Rugby Football Union, and the New South
Wales Rugby Union. The damages were claimed on the basis that these institutions had a
duty of care towards the players by virtue of the actual control of the game and the rules
of the game. This case has taken a route through the courts to the court of appeal in
Australia and has not yet been finalised. What are your thoughts on this case?

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 Discussion Scenarios

Scenario 1
25 June 2001, Newlands Rugby ground, Cape Town: Springboks v All Blacks.
This game will decide the outcome of the Tri-Nations Trophy for the year.
Millions of viewers worldwide
watch a game that is extremely
physical, with numerous yellow
cards being dished out by the
referee. During the match, the All
Blacks made a number of late
tackles on the Springbok right
wing Preyton Baulse, who was
causing serious problems for them.
The Springbok captain complained
to the referee that he must act
before things get out of hand. Halfway through the second half, the All Black
wing, Lonah Joma, lashes out with his fist at Baulse. Baulse is knocked
unconcious and suffers a severe broken jaw. Baulse approaches you for
advice on what legal action can be taken.

• Can PB sue?
• Discuss the delictual principles.
• Who can he sue?
• What will he claim?

Scenario 2
Subsequent to the Baulse incident the match reaches fever pitch intensity. In
the last ten minutes Lonah Joma (who has returned from 10 minutes in the sin
bin) is sprinting down the touchline to score the winning try. However, 5
metres from the try-line Korne Crige tackles him at full speed. The tackle is
perfectly timed and Joma is sent flying towards the first row of the Railway
stand. His boot catches a spectator on the head and he is instantly killed. The
spectator leaves a wife and 2 children behind.

• Who are the potential defendants in this case?

• Who will claim, and what will they claim?
• Discuss the delictual principles.
• What defences are available to the
defendants?
• What are the chances of success?

Scenario 3
At this stage of the game, the crowd is on
their feet and the tension is intense. The
score is 21-18 to the All Blacks and there

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 are 3 minutes of injury time left. Rieter Possouw, the Springbok left wing,
starts a move from inside his half, and to the delirious joy of the crowd he
scores in the corner to win the match. As the crowd celebrate with unbridled
joy, a standing room support pole breaks and Joe Soap falls and breaks his
arm. Joe reads his ticket which says that that the stadium will not be liable for
any injuries or loss suffered by spectators, whether due to negligence of the
stadium or not. Joe has a number of medical costs to bear a result of his
injury.

• What are Joe’s chances of success?

C: Indemnity

In many instances, organisers of extra-mural/sporting events enter into agreements with

the participants that they will not claim damages in the event of injury arising from their
participation. This agreement is known as a pactum de non petendo in anticipando. The
concluding of such an agreement only binds the contracting party and not the dependants
of the party. This is where the agreement differs from consent – consent provides a
complete defence against a claim.

The courts have accepted these waivers to claim – however, they would not be valid if the
risks were unreasonable and against the public policy.

CONCLUSION

Injuries to sportsman and spectators are regarded as one of the few negative elements that
exist in sport. In spite of sporting injuries occuring on a weekly basis, litigation does not
occur often. On many occasions the sporting body institutes disciplinary action and the
matter rests at that point. However, the participation in sport does not provide athletes with a
license to act irresponsibly – athletes must participate with due care and within the rules of
the game.

As sport continues to grow and increase in popularity, the issues under discussion in this
chapter will become more relevant on South Africa.

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 REFERENCES

1. Basson and Loubser (ed) Sport and Law in South Africa

2000 Butterworths

2. Nagel et al Commercial Law 2nd Edition

2000 Butterworths

3. Gardiner et al Sports Law

1997 Cavendish Publishing

4. Neethling et al The law of Delict

1992 Butterworths

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