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IN THE HIGH COURT OF SOUTH AFRICA

(DURBAN AND COAST LOCAL DIVISION) REPORTABLE

Case No : 1701\04

In the matter between :

SEAN DARREN KEPKO Plaintiff

and

ROAD ACCIDENT FUND Defendant

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J U D G M E N T

______________________________________________________________

NICHOLSON J

1. The plaintiff sues the Road Accident Fund for damages arising out of an accident that occurred on 13 June 1999 at Howard Court Estate in the Camperdown district. The issue of liability was separated from the quantum and the Court heard the evidence of the plaintiff and one Geoff Bird who testified for the defendant.

2. It was common cause that the collision occurred during a motorcycle "fun run" on a dirt road in a rural setting. This "fun run" is of a competitive nature, in that participants vie with each other to win but there were no prizes on that day for the winner, although a lucky draw took place for various gifts.

3. The track was circular in nature and the motor cyclists covered a series of laps in an anti-clockwise direction, over approximately three hour duration. Various coloured markers indicate where the track is and use is also made of coloured candy tape to indicate where the cyclists had to turn.

4. It was common cause and reference was made to various photographs handed in by consent, that the insured driver, one Nick Edwards, overshot a left turn by some half a kilometre and then turned back to resume the race. The plaintiff infers, and there is no competing inference, that Edwards overshot the turn a second time, on his return, and collided head on with plaintiff. In other words, while the plaintiff and the other cyclists were proceeding in an anti-clockwise direction, the effect of the manoeuvre performed by Edwards was that he drove in a clockwise direction straight into the plaintiff.

5. Given that it was in the middle of winter, there was a lot of dust and when plaintiff first saw Edwards he was only 25 metres away. It is also not disputed that as both were travelling at approximately 80 kilometres per hour, their combined speed of approach meant that the plaintiff had an incredibly short time to respond, in all probability, less than a second. It was also common cause that the scene of the accident was a blind rise. The participants who numbered over a hundred wear protective gear and helmets as the sport is clearly dangerous.

6. The plaintiff was clearly not expecting anyone coming from the opposite direction and he believes Edwards drove very recklessly.

7. The plaintiff explained that he would accept the normal risks of what was a dangerous sport i.e. from collisions or mishaps arising from persons proceeding in the same direction as the rest of the motor cyclists on the fun run. There was clearly absolutely nothing that the plaintiff could do to avoid the collision and Edwards was 100% negligent, if not reckless.

8. Asked what Edwards could have done to re-enter the race, the plaintiff suggested he should have proceeded down the road on the left (he was on the right when he collided) and then carefully fed into the competitive procession of riders going in the anti-clockwise direction.

9. Geoff Bird, a committee member of Motorsport South Africa, a section 21 association, testified that he was present that day but did not witness the accident as he arrived on the scene later. He testified also that a cyclist re-entering the race had to exercise the utmost caution and that only an "idiot" would have behaved the way Edwards did.

10. Some attempt was made to secure the admittance of a document Exh "D" which contains clauses, limiting liability on claims against Motor Sport South Africa, a voluntary association that controls the sport. The document contains many provisions and inter alia it prohibits drugs and contracts out of liability in the event of damage to vehicles or injury or death to any person. I have a number of difficulties with its admissibility. Firstly the litigation does not involve Motorsport South Africa and secondly Bird said he could not say if any of its clauses were applicable on the day in question. The plaintiff, in any event signed no documents whatsoever. It is therefore not admissible in this case.

11. It was also not clear to what extent road users who were not part of the race were prohibited from using the roads that constituted the track. This circumstance would have urged even greater caution on a motor cyclist such as Edwards.

12. On the facts I am obliged to determine the matter on the plaintiff's version because the insured driver did not testify. Because the plaintiff's evidence was uncontested and, I might add, given in convincing fashion, the Court proceeds on the basis that the insured driver Edwards was 100% negligent.

13. The defendant pleads volenti non fit injuria. The onus rests on the defendant to establish the defence. See Santam Insurance Co v Vorster 1973(4) SA 764 (A) at 779. The defendant must allege and prove the plaintiff had knowledge of the risk (Alberts v Engelbrecht 1961(2) SA 644 (T)), appreciated the ambit of the risk (Durban City Council v SA Board Mills Ltd 1961(3) SA 397 (A) at 406 - 407), and consented to the risk (Waring &Gillow v Sherborne 1904 TS 340 at 340 - 344).

14. Mr Maharaj who appeared for the defendant, submitted that the defence of volenti will succeed on the basis that a person who willingly consents to an activity involving risk of harm, cannot complain that a delict has been committed against him. I agree with this summary.

15. In the present case, motor racing is a recognised sport and a claim by an injured competitor who was competing in a motor race may be met by a plea of volenti because a competitor (in the position of the plaintiff), accepts the risk of harm inherent in this sport. He referred to the case of Rosseau v Viljoen 1970(3) SA 413 at 420 F.

16. He submitted further and I agree that the standard requirements of volenti are firstly that the plaintiff must have had knowledge of the harm or risk involved In other words he must have foreseen that a cyclist would overshoot the turn and return and drive straight into the oncoming cyclists. In the second place the plaintiff must also have appreciated the nature and extent of the harm or risk involved. In Rosseau's case the Court spoke of the plaintiff's understanding of the chance or risk of the occurrence of the events that occasioned his injury and in addition the fact that the plaintiff accepted the risk. See Rosseau page 417 F - G.

17. I also accept that the fact that the plaintiff was made aware of the risk does not absolve the defendant from acting negligently. In the circumstances Mr Maharaj submitted that the defendant had proved that the plaintiff should have foreseen this event and was therefore volens regarding the injuries he sustained.

18. Mr Bedderson on the other hand, who appeared for the plaintiff submitted that it was clear from the evidence that the plaintiff was aware and accepted the normal risks associated with participating in an off-road motorcycle event (with other participants travelling in the same direction as he was on the circuit). Further, that in these circumstances participants could conceivably, for example "bump" into the plaintiff and he would not have a claim in delict.

19 He submitted that the plaintiff did not expect or foresee that a participant would approach him directly in his path of travel from the opposite direction, knowing full well that other participants would be on the circuit. In his evidence the plaintiff stated "The last thing I expected was to see someone coming from the opposite direction."

20. According to English law, a person engaged in a lawful game takes on himself the risks incidental to being a player, and has no remedy by action for injuries received in the course of the game unless they are caused by some unfair act or foul play amounting to negligence. (Halsbury's Laws of England, volume 33, fourth edition reissue, page 483). Participants owe a duty to each other to take all reasonable care having regard to the particular circumstances. See Condon v Basi [1985] EWCA Civ 12; [1985] 2 ALL ER 453.

21. The rules of the game are a relevant factor but not a conclusive factor. (See Charlesworth & Percy on Negligence, Eighth Edition, page 228). In Harrison v Vincent [1982] RTR 8 (CA), during a motor cycle and side car combination race the plaintiff who was the passenger in the side car, was injured as a result of the failure of the motorcycle's brakes and the defendant missing the gear when he attempted to slow down. The Court held that the defendant had the duty to check the brakes before the race. It was further held that the rider owed his passenger the normal standard of care and not the modified one, which usually applied to competitors in a sport, because the negligence had occurred in the relative calm of the workshop and not during the flurry and the excitement of the race.

22. Undoubtedly, consent may sometimes be implied between persons engaged in sport. (R v Coney (1882) 8 QBD 534)). As Lord Denning M.R commented in Lane v Holloway [1968] 1 QB 379 at 386 - 287 A.

“I agree that in the ordinary fight with fists there is no cause of action to either of them for any injury suffered. The reason is that each of the participants in a fight voluntarily takes upon himself the risk of incidental damages to himself. Volenti non fit injuria. But he does not take on himself the risk of a savage blow out of all proportion to the occasion. The man who strikes a blow of such severity is liable in damages unless he can prove accident or self-defence.”

23. In Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club, [1971] 1 WLR 668 the claimant was a spectator and was injured at a motorcycle scramble. Lord Denning M.R. stated: “a competitor in a race… must, of course, use reasonable care. But that means reasonable care having regard to the fact he is a competitor in a race in which he is expected to go “all out” to win”(ibid at page 670). He goes on to say: “in a race the rider is, I think, liable if his conduct is such to evince a reckless disregard of the spectator’s safety: in other words, if his conduct is foolhardy” (ibid at 670).

24. In Caldwell v Maguire & Fitzgerald [2002] PIQR 6, the claimant, a professional jockey, had been injured when he was unseated as a result of manoeuvres by two fellow jockeys (the defendants). The trial judge (Holland J) summarised the principles of liability in the following manner.

25. Firstly each contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants. The second duty is to exercise in the course of the contest all the care that is objectively reasonable in the prevailing circumstances for the avoidance of the infliction of injury to such fellow contestants. Thirdly, the prevailing circumstances are all such which are properly attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant. Thus in the particular case of a horse race the prevailing circumstances will include the contestant's obligation to ride a horse over a given course competing with the remaining contestants for the best possible placing, if not for a win. Such must further include the Rules of Racing and the standards, skills and judgment of a professional jockey, all as expected by fellow contestants. In the fourth place, given the nature of such prevailing circumstances the threshold for liability is in practice inevitably high; the proof of a breach of duty will not flow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no more than incidents inherent in the nature of sport. Finally in practice it may therefore be difficult to prove any such breach of duty absent proof of conduct that in point of fact amounts to reckless disregard for the fellow contestant's safety. The Courts emphasise the distinction between the expression of legal principle and the practicalities of the evidential burden.(ibid at para 11).

26. In the United States, the courts refer to the common law doctrine of volenti as the assumption of risk doctrine.

27. Assumption of risk is a defence in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity participated in.

28. The philosophical underpinning of the assumption of risk doctrine, and particularly its use in sports injury cases, was described by Judge Cardozo in the seminal case of Murphy v. Steeplechase Amusement Co., Inc (1929) 250 N.Y. 479, 166 N.E. 173 (NY) as follows “one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.” (ibid at 482)

29. In the USA, a plaintiff is required to show the defendant acted with ‘reckless disregard’ for an action of negligence to succeed (Nabozny v Barnhill 31 Ill. App.3d 212, 334 NE 2d 258 (1st Dist.1975). In Nabozny v Barnhill the Plaintiff, a soccer goalie, was kicked in the face by another player during an amateur soccer match. The Nabozny case was the first Appellate Court case in Illinois to recognize the contact sport exception to the general rule that a person is responsible for his negligent acts or omissions. The court stated that to allow the plaintiff goalie to sue another player in negligence under these facts would obviously have a chilling effect on other players who choose to play soccer, basketball, hockey, football, softball, etc. The court held that a player could still be liable in tort if his conduct was either deliberate, wilful, or with a reckless disregard for the safety of others.

30. In Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383, [1967] NCA 39, an Australian case, it was held that where a participant in a game is injured by the act or omission of another participant, the existence and extent of the duty of care are to be determined in the light of all the circumstances, including the risks, which may reasonably be inferred to have been accepted by the very fact of participation. The two judges followed different approaches but produce precisely the same result.

31 Barwick CJ said, at para 6, page 385:

"By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist."

32. Kitto J went on to state at para 6 of his judgment (page 389):

"in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organised affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the 'rules of the game'. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.”

33. It seems to me that these principles of foreign law give considerable guidance to me in this matter and do not differ to any significant degree from our own law.

34. In Rosseau's case mentioned above the Court considered the usual sort of risks that a midget car racer would run and a marshall would expect during the racing. (see page 418 E - H). The defendant in Rosseau's case was bumped by another car and taken off the track. This resulted in him travelling at low speed in a direction that would have taken him clear of the plaintiff. (See page 421 A - B). The defendant then turned in the direction of the plaintiff and collided with him with the resultant injuries.

35. Van Winsen J held that there was no evidence that conduct of this nature occurred even exceptionally in midget car racing or is associated with it. (See page 421 C - D). The judge found that the sequence of events in that matter was unique and the chances of such recurring minimal. There was therefore "no ground in themselves for imputing to the plaintiff an understanding and acceptance of such a chance". (See page 421 F - G).

36. I would regard the circumstances in casu as unique and the chances of such recurring as minimal. Geoff Bird the defendant's own witness said anyone behaving in that fashion would be an "idiot". I do not believe that plaintiff would and should have foreseen that such a manoeuvre would be carried out by Edwards.

37. In addition I would consider that the actions of the insured driver showed a reckless disregard for the safety of the plaintiff as described in the American cases. I do not believe that this arose from a mere error of judgment or a momentary lapse in skill as decided in the English cases.

38. Insofar as the question of reasonableness is concerned, I am of the judgment that the actions of the insured driver were grossly unreasonably both insofar as the rules of motor cycling are concerned and also from an appreciation of the risks inherent in a dangerous sport.

39. For competitors vying with each other on a course proceeding in one direction to have a motor cyclist enter from the opposite direction would not only elicit total surprise but also constitute a grave danger to their personal safety. In the premises the defence of volenti does not avail the defendant.

40. In the premises I grant the following :

(a) Judgment for the plaintiff for any damages either proved

against or agreed with the defendant.

(b) Defendant is ordered to pay the costs.

Date of hearing : 10th September 2008

Date of judgment : 21st November 2008

Counsel for the Plaintiff : B S M Bedderson Instructed by Askew and Associates

Counsel for the Defendant : M Maharaj (instructed by Hughes Madondo Attorneys)

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