Rugby is arguably one of South Africa’s most loved sports with players participating from a young age. Despite continual improvements to the safety of the game, injuries are still a frequent phenomenon and of grave concern, particularly when incurred at a scholar level, often raising the question of who should be liable when such a rugby injury happens to a scholar.
An answer to this question is however not straightforward as any liability would have to follow a delictual claim whereby it is proven that the injury was due to the negligence of another. To succeed, any claimant would have to prove all five elements of a delict, namely that there was conduct, it was wrongful, there was fault, causation is present and damages were incurred.
In the recent judgment of The Member of the Executive Council, Education, North West Province v Foster & Others (471/2021) [2023] ZASCA 11 (13 February 2023) our Supreme Court of Appeal had to consider whether the state could be held liable for a rugby injury of a scholar incurred whilst playing school rugby. The facts of the matter are briefly summarized:
On 6 May 2006, Izak Boshoff Foster (who was 18 years of age at the time and in matric) played in a rugby tournament representing his school against another school which was also the host of the tournament. Both schools fall under the Member of the Executive Council of Education: North West Province (“MEC”). Izak Foster was tackled by a player from the opposing team and fell to the ground. Whilst on the ground another player fell on top of him. He sustained an injury to his neck as a result of the impact. This would be the first of two injuries.
After the initial injury, Foster was carried off the field by first aid personnel without his neck being stabilized by a spine board or solid neck brace. This caused a second injury to Foster. Foster was taken to the hospital where he had to undergo surgery twice. After the first operation, the doctors informed Foster that he would not be able to walk again. This remained the position despite the second operation.
In the matter, the SCA had to decide whether the MEC was liable for the second injury. In terms of Section 60 of the Schools Act 84 of 1996 (“Schools Act”), the liability of the state is provided for as follows:
“(1)(a) Subject to paragraph (b), the State is liable for any delictual or contractual damage or loss caused as a result of any act or omission in connection with any school activity conducted by a public school and for which such public school would have been liable but for the provisions of this section.
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(3) Any claim for damage or loss contemplated in subsection (1) must be instituted against the Member of the Executive Council concerned.”
The SCA found that the rugby game was ‘an activity in connection with an educational activity’ as described in the Schools Act and therefore there existed a legal duty on the MEC to avoid negligently causing harm. The delictual elements of wrongfulness and causation were therefore not in dispute. The central question was whether the High Court correctly held that the host school was negligent in failing to take reasonable steps to ensure the presence of a competent and properly equipped first aid provider.
In considering all aspects, the SCA found in favour of Foster on the basis that the steps taken by the host school in preparation for the games to prevent foreseeable injuries were not reasonable and confirmed that the MEC was indeed liable for the injuries to Foster. This confirms the requirements for liability as well as that the state could be held liable for a rugby injury, provided the necessary elements can be proven.
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