Sport Injuries: Who is liable?

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A4_bContact 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.”[1]

 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.”[2]

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”.[3]

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.

Bibliography

Articles

Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72

Cases

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

[1] Roux v Hattingh 2012 (6) SA 428 (SCA) at Par27

[2] Roux v Hattingh 2012 (6) SA 428 (SCA) at Par28

[3] Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72 78

This article is a general information sheet and should not be used or relied on as legal or other 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 omission excepted. (E&OE)

Review of director’s decisions

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A3_bIn the previous article regarding “informal” decisions by directors, we considered what acts or decisions may be considered as informal decisions by directors. The precedents established by the courts were discussed, which precedents are considered regarding the enforceability of these “consents” and the validity of informal decisions by directors. Directors of homeowners’ associations have been forewarned to be diligent and carefully choose their words in conversations with other members, especially when these members paint pictures of proposed building projects. And more specifically, directors are to keep their opinion for the debate of the properly tabled application, especially concerning additions and alterations to the property of the member. The rules of the homeowners’ association regarding aesthetics and other such requirements should be paramount in the decision-making process.

But what if the member did comply with the prescribed formal requirements and the board of directors did not approve the request? Where does that leave the directors and the member?

The courts will not interfere with the decision made by a homeowners’ association save on recognised grounds of judicial review as applied to voluntary associations whose members have bound themselves to its rules, which include the conferring of decision–making functions of elected body of directors (Turner vs Jockey Club of South Africa 1974 (3) SA; SA Medical & Dental Council vs McLoughlin 1948 (2) SA 355 (AD) and Marlin vs Durban Turf Club & Others 1942 AD 112). 

The grounds of judicial review are restricted to whether the tribunal was competent to make the decision and whether it complied with the requirements of procedural and substantive fairness which effectively is limited to whether the procedure or decision taken was tainted by irregularity or illegality – unfairness per se is not enough (Bel Porto School Governing Body & Others vs Premier, Western Cape & Another 2002 (3) SA). 

The traditional common law grounds of review of a voluntary association tribunal include illegality, procedural unfairness and irrationality. Prior to the constitutional dispensation, the ambit of the voluntary associations had been settled in case law. The Promotion of Administrative Justice Act, Act 3 of 2000 (PAJA) applies to administrative action on the part of an organ of state or a juristic person exercising a public power or performing a public function.  Accordingly, directors of homeowners’ associations do not fall within the scope of the PAJA.  Section 39(2) of the Constitution on the other hand, requires a court, when developing the common law, to promote the spirit, purport and objectives of the Bill of Rights.

The judgement in the matter of Theron and Andere vs Ring van Wellington van die NG Sending Kerk in Suid-Afrika en Andere 1976 (2) SA 1 (A) has already confirmed that a reasonableness test based on rationality was a competent basis under the common law powers to review decisions of voluntary associations. The court will therefore consider a ground of review that included unreasonableness in the sense that the decision could not reasonably be supported by evidence. There appears to be no difference in principle for present purposes between common law grounds of review in relation to voluntary associations and the grounds of review provided for by PAJA.

Various case laws confirm that a court will only interfere with the decision of the directors of a homeowners’ association where that body has failed to comply with the natural justice requirements of legality, procedural fairness and reasonableness, the latter in the sense of a rational connection existing between the facts presented and the considerations that were applied in reaching the conclusion.

If the Memorandum of Incorporation or rules of the homeowners’ association prescribe a formal procedure to follow for permission or consent to be obtained regarding any alteration or other building projects, any member who did not submit a formal request for the building project, even if it is only the erection of a fence and did not include the detail of the fence to be erected for approval prior to the erection thereof, then the fence is “illegal”.

The board of directors of any homeowners’ association has an obligation to enforce the Memorandum of Association and/or the Memorandum of Incorporation and the rules of the association, and should do so in the interests of the whole of the estate and all its members.

Any building project which has been embarked on or even finished without proper procedures followed by the homeowner, and which does not comply with the aesthetical requirements of the homeowners’ association as is prescribed in the rules, are “illegal” in that the member erected the building without formally complying with the requirements of the homeowners’ association.   Directors should carefully consider each and every such building project within the jurisdiction of the association and, in the best interest of all members of the association, invite such members affected for an informal, amicable discussion regarding the removal or further alteration of the building or building project, even if it is only a fence and the time periods to do so. It is important to note that such members should still be obliged to comply with the formal requirements as prescribed by the association. These applications can be tabled in terms of the formal procedures prescribed with consideration to formally consent thereto retrospectively by the board of directors on condition that all prescriptive requirements have been fully met, even if it is merely aesthetically.

This article is a general information sheet and should not be used or relied on as legal or other 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 omission excepted. (E&OE)

Estate agents commission

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A2_bSelling a home is one of the biggest financial decisions a person can make and an estate agent, to whom commission will be payable, is usually involved in this process.

A problem that frequently occurs in practice and which is not easy to solve is whether an agent was in fact instrumental in bringing about the sale of the property. It could happen that an agent introduces a prospective buyer, that negotiations for the sale do not succeed and that another agent succeeds in concluding the agreement. It is common practice for more than one agent to be instructed to find a purchaser. It could even happen that a seller is held responsible for paying commission to two agents.

An estate agent is not an agent in the strict sense of the word.  His “mandate” is normally to find a suitable purchaser for the seller’s property and not to sell on behalf of the seller. This is, however, not a contract in the usual sense where parties undertake reciprocal obligations. In fact, the agent is not obliged to perform his mandate. An estate agent will only be entitled to commission if he has a mandate from the seller; without the mandate he is not entitled to commission, even though he might have been the effective cause of the transaction.

An estate agent will be considered to be the effective cause of the transaction when:

  • he has introduced a willing and financially able buyer to the seller;
  • a binding contract has been concluded between the parties; and
  • the transaction takes place at the stipulated price or at a price acceptable to the seller.

When several estate agents are involved in introducing the buyer to the seller it might be difficult for the court to determine which agent was the effective cause. For instance, when estate agent A introduces the buyer to the seller but the buyer later purchases the property through estate agent B after B has persuaded the seller to drop the price. Or estate agent A may have a sole mandate, but estate agent B introduced a willing and able buyer. The seller could then be liable for both estate agents’ commission. A sole mandate usually stipulates that the agent is entitled to commission if the property is sold during the currency of the agreement, even if another agent introduced the buyer.

In another matter a prospective buyer was introduced and the house was inspected. The price was considered too high. A few months later the purchaser noticed that the house was still in the market. He then bought the property without intervention from the agent at a slightly lower price than the earlier rejected price. The estate agent was held to be entitled to his commission.

How much commission is an estate agent entitled to? The average commission ranges up to 7.5%, but there are no regulations as to how much commission an estate agent should be paid per sale. The commission should be discussed by the parties when negotiating the mandate.

Sole mandates that are given to estate agents are regulated by the Consumer Protection Act. The duration of the agreement may not exceed 24 months. The seller has the right to cancel the agreement by giving 20 business days’ notice in writing. If the mandate is not terminated by the seller on the expiry date it will automatically continue on a month-to-month basis.

Seller, be wary of these pitfalls when selling your property – they could be very costly.

This article is a general information sheet and should not be used or relied on as legal or other 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 omission excepted. (E&OE)

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