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Abstract
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Santam, one of South Africa’s largest insurance companies, has repudiated a R3 million payout claim from a former Stellenbosch schoolboy rugby hooker, whose deliberate ‘jack-knife’ scrumming tactics temporarily paralysed his opponent and left him with life-long disabilities.
They cite the landmark High Court finding, (confirmed on appeal), 1 that Alex Roux, the Stellenbosch High School under-19A hooker, ‘intentionally and wrongfully’ injured his Laborie High School opposite number, Ryand Hattingh. Santam say that this releases them from liability on what was a personal legal liability policy carried by Alex’s late father. The insurance giant declined to disclose the full findings of a probe by Professor J C van der Walt, their in-house arbitrator, delict expert and former dean of the law faculty, rector and vice-chancellor at the Rand Afrikaans University.
Ironically, had Hattingh’s legal team gone after the coach, school principal and Minister of Sport and Recreation for compensation, they may have won substantial damages more quickly. However, they instead chose to sue Roux after learning of the legal liability policy.
In their repudiation, Santam says this policy provides only for negligent acts, adding that they advanced the defence costs on Roux’s behalf (as required by their policy) after Roux Senior told them that his son did not cause the injury or act intentionally. In an e-mail response to a list of Izindaba questions, Professor Van der Walt said that no short term policy exists in the market to provide cover for intentional actions, as this would be ‘repugnant to the whole concept of insurance’. He said he provided his views after Hattingh’s lawyers made representations to Santam to reconsider their repudiation, adding that Santam’s conduct and actions in the litigation, as well as the ‘clearly justifiable repudiation’ are ‘beyond any reproach of possible impropriety, immoral or wrongful conduct’.
Izindaba asked Professor Van der Walt if he could say whether liability for a rugby sports injury would activate only on the basis of negligence and not on the basis of intention (and to give examples), as well as for his opinion on how this might affect Santam’s existing policy holders. He said ‘intent’ is a technical legal concept and does not mean intent ‘in the ordinary sense of the word’. It means ‘directing your will to the achievement of a particular result and the consciousness of the wrongfulness of the act’. In the relevant Appeal Court ruling, the court ‘could have’ concluded that Roux did not have intent in the legal sense, in which case his conduct would, in all probability, have been negligent. Because of the intricate legal concepts of intent and negligence, Professor Van der Walt believes that most sports injuries would normally be the result of negligence. However, he emphasised, this has to be proven in individual cases.....
Language: en |