Unsuccessful civil damages following altercation that left victim partially paralysed

The protracted legal saga between Andrew Merryweather and his delictual claim for damages against Oliver Scholtz and his father reached the Supreme Court of Appeal (‘SCA’), nearly 18 years after the disputed ‘spear-tackle’ that left Andrew permanently partially paralysed and wheelchair-bound.

Background facts

On 9 September 2006, a fight broke out between two groups of boys outside an Engen garage in Newlands, Cape Town after a series of verbal insults were exchanged between the boys. Although there was disagreement in terms of who instigated these events, it was common cause that the two groups were inebriated and that a physical altercation then followed during which Andrew charged at Oliver as if to tackle him.

According to Oliver’s testimony, he attempted to avoid this attack by grabbing Andrew’s shoulders once he came within reach, then stepping to his right and pushing Andrew away in a ‘swivel movement’. This ultimately led to Andrew falling and hitting the back of his head against a stationary motor vehicle, causing him to sustain a compression flexion type V fracture of his seventh cervical vertebrae, with a spinal cord injury. This injury left him permanently partially paralysed and wheelchair-bound.

Oliver invoked self-defence for his actions and alleged that he had “reasonable grounds to believe that Andrew posed a physical danger to him” throughout the unlawful attack and that the physical force used by him to repel Andrew’s attack was necessary and commensurate. This version of events could not be challenged by Andrew as he had no recollection of the events given his injuries. However, his younger brother Nicholas (who was a witness to these events) testified that he saw Oliver execute a rugby spear tackle and throw Andrew backwards causing him to hit his head against the wheel or fender of a parked motor vehicle.

Legal proceedings

Oliver and his friends were criminally charged in the Wynberg Regional Court for the attempted murder of Andrew and assault with intent to do grievous bodily harm to Nicholas. These individuals were however acquitted on all the charges. In the interim, however, Andrew had also instituted a delictual action for damages against Oliver and his group of friends in the Western Cape Division of the High Court (‘the trial court’).

The trial court concluded that the fight had been instigated by Oliver’s group of friends and rejected Oliver’s claim of self-defence. The trial court found that Olivier had executed an unlawful spear tackle on Andrew. As a result, Andrew ultimately succeeded in his claim for damages against Oliver but was unsuccessful in his claim for the payment of his costs against Oliver’s father, Gerard Scholtz.

The trial court granted Oliver leave to appeal to the full court against the judgment and leave for Andrew to cross-appeal the refusal of the costs order against Gerard. On appeal, the full court concluded that Andrew had failed to prove his case and that it was more probable that he had been injured according to Oliver’s version of events, rather than by a rogue spear tackle. Further, Oliver’s actions in averting the further threat were deemed reasonable.

The full court accordingly set aside the order of the trial court and replaced it with an order dismissing Andrew’s claim with costs, as well as dismissing the cross-appeal as this was conditional on the failure of Oliver’s appeal. The full bench nevertheless granted special leave to appeal to the SCA in respect of both the appeal and the cross-appeal.

The matter before the SCA

In its judgment, the SCA disagreed with Andrew’s grounds of appeal and held that the full court had correctly concluded that his claim was unsustainable since he had failed, at a factual level, to adduce evidence in support of his pleaded case. The SCA argued that Andrew and Nicholas’ recollection of the material events was not reliable nor credible and that based on the expert’s evidence, it could not be said that Andrew’s injury was more probably caused by a spear tackle rather than by the ‘swivel-and-push movement’ as described by Oliver. The SCA further agreed with the full court that Oliver’s actions were in self-defence and were commensurate with the threatened attack.

The SCA thereafter proceeded to address a preliminary question which required consideration, namely whether there are ‘special circumstances present to justify a further appeal to the SCA’. In this regard, the SCA noted that just because the full court granted special leave to appeal does not mean that the SCA is required to entertain the appeal. Indeed, the SCA highlighted that it “will not interfere with a decision of a court, given on appeal, even if it considers the decision may possibly be wrong unless there is some additional factor or criteria that play a part in the granting of special leave”.

The SCA argued that ‘special circumstances’ in this regard require more than ‘reasonable prospects of success. For example, the appeal must deal with a substantial point of law; or involve a matter of great importance to the parties or the public; or the prospects of success on appeal must be so strong that the refusal to grant leave to appeal would result in a denial of justice for the party seeking leave to appeal. The SCA nevertheless emphasised that this list of what may constitute special circumstances is not exhaustive.

On the facts of this matter, the SCA found that Andrew’s appeal fails to raise any substantial points of law, nor does it involve an issue of great importance to the public. His prospects of success turn on various factual disputes which had already been considered by the full court. The SCA accordingly held that given the absence of any special circumstances, there is no reason why it should reconsider any matter arising from the full court’s judgment and noted that doing so would only unnecessarily exacerbate the over-burdened and clogged appeal roll. The SCA consequently struck the appeal and cross-appeal from the roll with costs.

Aslam Moosajee

Executive | Dispute Resolution

amoosajee@ensafrica.com

Laurence Mort

Candidate Legal Practitioner | Dispute Resolution

lmort@ensafrica.com