VOLUNTARY ASSUMPTION OF RISK AS A DEFENCE, EXCLUDING DELICTUAL LIABILITY WITH REGARD TO SPORTS INJURIES Hattingh v Roux 2011 (5) SA 135 (WCC)

Abstract

In the case of sports injuries which occur in the ordinary course of the practice of sport, delictual liability may be excluded as a result of voluntary assumption of risk, also known as consent to the risk of injury (a ground of justification) which is embodied in the well-known maxim volenti non fit iniuria (Hattingh v Roux 2011 5 SA 135 (WCC) 141 hereinafter “Hattingh”; Prinsloo “Liability in
Sport and Recreation” 1991 TSAR 42–43; and Stoffberg v Elliott 1923 (CPD) 148–149). There is no doubt of the risk of injury inherent in sport, and all participants such as players, coaches, referees, supervisors, managers or spectators are at risk. In order to exclude delictual liability based on a successful reliance of voluntary assumption of risk as a ground of justification, all the requirements for consent must be present. In Hattingh, the court had to decide inter alia whether the plaintiff (R) voluntarily assumed the risk of injury
inherent in participating in a game of rugby. In this note, Hattingh is discussed with specific reference to the delictual elements of wrongfulness and fault, and the defence of voluntary assumption of risk. Reference is also made to other cases dealing with the defence.