INTRODUCTION

High school sporting rivalries are a common and highly anticipated phenomenon for everyone involved, particularly the participants and supporters. Unfortunately, these rivalries can lead to incidents occurring that may fall outside of normal sporting offenses, which could result in both criminal and civil charges, as seen in Stone v Ivanisevic and Another.

BACKGROUND

During a water polo match between Bishops Diocesan College and Rondebosch Boys High, the First Defendant “Bingo” punched the Plaintiff “Ross” in his mouth, which resulted in several of his teeth becoming dislodged, having to be retrieved from the bottom of the pool, and a cracked jaw bone, all of which he had to undergo surgery for.

Although the Director of Public Prosecutions declined to pursue the criminal charges laid by various individuals, Ross was still entitled to pursue his common law entitlement to compensation for unlawful assault.

The issues that needed to be determined were:

(a) whether Bingo punched Ross in a manner that was (i) negligent; (ii) wrongful; and (iii) exceeded any legitimate expectation of an accident or injury that could be expected when participating in a contact sport such as water polo;

(b) whether Bingo acted in private defence; and

(c) whether Bishops breached their legal duty towards Ross to take all reasonable steps to ensure his safety and wellbeing.

ISSUE (a)

Ross bore the onus to prove on a balance of probabilities that Bingo caused the incident which resulted in the punch and that Bingo acted negligently, wrongfully and exceeded any legitimate expectation of injury by punching him.

It was held that Ross’s version was favoured by the probabilities and Ross proved to be a good witness, consistent in his version of events and candid when he was unsure or unable to cast light on any particular aspect. He was described as an “honest, credible and reliable witness”. Bingo on the other hand, was described as “evasive” and “went to considerable lengths to distance himself from taking responsibility”. The only individual supporting Bingo’s version of events was his mother, who was described as “an unsatisfactory witness with a clear agenda to protect Bingo at all costs”.

ISSUE (b)

Bingo relied on a defence of private defence, and not putative private defence, of which an important distinction exists. For private defence, the attack must be unlawful, whereas putative private defence involves a lawful attack which the defendant believes to be unlawful. With regards to the circumstances and facts of the matter, had Bingo relied on putative private defence instead of private defence, the outcome might have been different, as he claimed Ross had punched him under the water after he swam over the top of him, which reasonably would cause most players to lash out, constituting a lawful attack which Bingo might have interpreted as being unlawful.

ISSUE (c)

Ross had to prove on a balance of probabilities that Bishops breached their legal duty towards Ross to ensure his safety and well-being. Bishop’s sporting policy was found to be in compliance with all regulatory bodies and there was no evidence to suggest that the incident would happen, nor that they should have taken any steps to ensure that it did not happen.

Bishops’ records were found to be reliable and there was no record of previous offences by Bingo that would have alerted Bishops of any potential foul play.

CONCLUSION

Ross proved on a balance of probabilities that Bingo was negligent, wrongful and exceeded any legitimate expectation of injury whilst participating in a water polo match. His claim succeeded against Bingo and Bingo was ordered to pay 100% of such damages agreed upon or proven, as well as Ross’s costs on Scale C (party and party). Bingos defence of private (self) defence failed and Ross’s claim against Bishops was dismissed.