Vonnisbespreking: Waagartieste leer haar heiland ken. Gevestigde regsbeginsels egter tot haar redding Jackson v Road Accident Fund 2021 4 SA 244 (GP)

Abstract

In Jackson the court had to decide whether the plaintiff, a stuntwoman by profession, had given consent to the risk of injury before she was seriously injured during the filming of an exciting scene in which she had to ride a motorcycle at high speed towards a vehicle carrying a camera approaching from the opposite direction. Due to the negligence of the driver of that vehicle the camera which had been dangling from a boom arm had been lifted too late to avoid a collision with the plaintiff. The gist of the defendant’s plea was that the plaintiff had known that she was engaged in a hazardous exercise, which implied that she had accepted the risk of harm that ultimately befell her. The court first dealt with the issue of negligence, which, according to some academic writers, should have been postponed until a decision on possible wrongfulness of the driver had been made. In view of recent decisions of the Supreme Court of Appeal it is shown that the court’s approach in finalising the issue of the driver’s negligence and the lack of contributory negligence on the plaintiff’s part was justified. The court approached the issue of consent to the risk of injury (voluntary assumption of risk) by reiterating the three basic requirements for establishing whether the plaintiff had consented to the risk of injury, namely full knowledge of the extent of the risk, appreciation of the ambit of the risk and subjective consent (authoritatively established in 1904 in Waring & Gillow Ltd v Sherborne). It then applied four previous judgments (and in addition referred to one more) to the facts (Durban City Council v SA Board Mills Ltd, Kepko v Road Accident Fund, Lampert v Hefer and Santam Insurance Co Ltd v Vorster; reference to Oosthuizen v London and Lancashire Insurance Co Ltd) and effectively reached the conclusion that the issue of consent in such circumstances is fact-sensitive in that a court has to guard against drawing conclusions from circumstances such as are present in the case under discussion, for example that the plaintiff had been occupied in exercising an intrinsically dangerous profession. Each of these judgments is briefly discussed to demonstrate how they were applied by the court to found its final conclusion. This judgment again demonstrates that courts are bound to determine the exact state of mind of the plaintiff to be able to ascertain whether he or she had in fact realised and appreciated the risk which he or she has accepted and had subjectively consented to it. The onus of proof on a defendant employing this defence is daunting and the value of good cross-examination of a plaintiff in cases of this nature is emphasised. This judgment provides a good example that can be utilised by lecturers for explaining the operation of the ground of justification of volenti non fit iniuria (literally: “To a willing person, it is not a wrong”) in the guise of voluntary assumption of risk to students. Finally, there is a reference to the relevance of English case law for resolving issues pertaining to consent cases of the risk kind in South Africa. It is noteworthy that a leading English authority, the 1891 Appeal Court case of Smith v Charles Baker & Sons which was quoted as good authority as far back as 1904 in Waring & Gillow Ltd v Sherborne is still regarded as applicable in modern English tort law in respect of actions instituted by employees who suffered harm in the scope of their employment while undertaking risky operations.