SANTAM INSURANCE CO LTD v VORSTER 1973 (4) SA 764 (A) Flynote : Sleutelwoorde. Headnote : Kopnota

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1 SANTAM INSURANCE CO LTD v VORSTER 1973 (4) SA 764 (A) Citation 1973 (4) SA 764 (A) Court Appellate Division Judge Ogilvie Thompson CJ, Holmes JA, Wessels JA, Potgieter JA and Jansen JA Heard August 16, 1973 Judgment September 24, 1973 Annotations Flynote : Sleutelwoorde Negligence - Action for damages for bodily injuries - Defence of volenti non fit injuria - Alternative defence of contributory negligence - Such can overlap - Volenti defence can still constitute a complete defence in an appropriate case - Consent necessary to render claimant volens - Approach of Court in determining whether requisite consent established - Plaintiff voluntarily participating as a passenger in an unlawful race between two cars on a country road - Volens only extending to mechanical hazards and not covering acts of negligence on part of drivers causing collision at a bend in road - Plaintiff on apportionment held equally at fault with drivers for entering into race - Plaintiff held entitled to recover two-thirds of his damages from one driver and insurer of other car jointly and severally - No sufficient warrant for disturbing finding on appeal. Headnote : Kopnota While the defence of volenti non fit injuria and that of contributory negligence no doubt sometimes overlap, there is no adequate reason for depriving a defendant, in risk cases such as an action for damages brought by a passenger for bodily injuries alleged to have been caused by negligent driving, of the complete defence of volens, provided always that the facts sufficiently establish the requisites of that defence, and provided further that the volenti defence is always applied wtih caution and circumspection. In an action for damages for bodily injury caused by negligent driving, in which the defendant raises the defence of volenti non fit injuria, if it be shown that, in addition to knowledge and appreciation of the danger, the claimant foresaw the risk of injury to himself, that will ordinarily suffice to establish the 'consent' required to render him volens - provided always that the particular risk which culminated in his injuries falls within the ambit of the thus foreseen risk. The inherent difficulty that the central factum probandum - viz. the consent to the particular risk which occasioned the supervening injuries - is basically a subjective enquiry can only be bridged by way of inference from the proved facts. In the nature of things, direct evidence will seldom, if ever, be available; and manifestly the negative ipse dixit of the claimant himself can by itself usually carry but little weight. The Court must thus perforce resort first to an objective assessment of the relevant facts in order to determine what, in the premises, may fairly be said to have been the inherent risks of the particular hazardous activity under consideration. Thereafter the Court must proceed to make a factual finding upon the vital question as to

2 whether or not the claimant must, despite his probable protestations to the contrary, have foreseen the particular risk which later eventuated and caused his injuries, and is accordingly to be held to have consented thereto. A 1961 Vauxhall and a 1964 Fiat, driven by their respective owners and each with one passenger, had engaged in a race on a country road with a sharp bend in it. Plaintiff (respondent) was a passenger in the Fiat. There was R10 at stake on the race, or 'dieing' as it was called. The driver of the Fiat, second defendant, had tried to overtake the Vauxhall, insured by the first defendant (appellant) as it slowed down from about 90 m.p.h. to 70 m.p.h. for the bend. When the two cars were partly alongside each other in the bend the driver of the Vauxhall had accelerated which had in all probability caused the Vauxhall's rear to skid to the right and make contact with the Fiat which was only two or three feet from it. The driver of the Fiat lost control of it and it careered through the veld and overturned. The plaintiff was very seriously injured and sued the first defendant and the driver of the Fiat, as second defendant, for damages. The first defendant had set up the defence of volenti non fit injuria, and, as an alternative defence, contributory 1973 (4) SA p765 negligence. The trial Court had rejected the first defence, but had held that plaintiff had been contributorily negligent and that, as he had been 'in it' with both drivers, it would be fair if he shared the blame with both drivers, and he had been awarded two-thirds of his damages against the two defendants jointly and severally. In an appeal, and cross-appeal, Held, whilst the plaintiff had been volens in relation to the risks ordinarily inherent in 'dicing', for instance, a burst tyre, he could not be held to have assumed the risk of injury resulting from grossly negligent behaviour on the part of a driver. Held, further, whilst this was manifestly a borderline case, that, bearing in mind that the onus rested upon the defence to establish its volens defence, no sufficient warrant existed for disturbing the trial Judge's conclusion that this defence had not been made out. Held, further, that the contention in the cross-appeal that the plaintiff's contributory negligence should not have been assessed at more than 10 per cent also failed: plaintiff was undoubtedly at fault in exposing himself to risk by participating in the 'dicing' contest; but it was the negligent driving around the bend which was the real cause of plaintiff's injuries, and the trial Court had made a fair apportionment, and no sufficient ground existed for disturbing it. The decision in the Witwatersrand Local Division in Vorster v Santam Insurance Co. Ltd. and Another, 1973 (2) SA 186 (W), confirmed. Case Information Appeal from a decision in the Witwatersrand Local Division (MARAIS, J.). The facts appear from the judgment of OGILVIE THOMPSON, C.J. A.S. Botha, S.C. (with him D.M. Williamson), for the appellant: Die appellant het twee verwere in die alternatief geopper, beide waarvan gebaseer was op die gedrag van die eiser, nl.: (1) die

3 verweer van 'vrywillige aanvaarding van risiko' deur die eiser; en (2) die verweer van bydraende nalatigheid aan die kant van die eiser. Vir sover die twee verwere hier geopper voor 1956 mekaar kon oorvleuel het, in die sin dat dieselfde feitekompleks aanleiding kon gegee het tot albei verwere, met dieselfde resultaat, nl. die totale mislukking van 'n eiser se eis, is dit na die genoemde Wet van 1956 nie meer die geval nie. Vgl. Lampert v Hefer, N.O., 1955 (2) SA op bl. 508F - G; 513C - 514B. Daarbenewens word in oorweging gegee dat die eerste verweer in beginsel daarop gemik is om te bewys dat die daad wat aanleiding gee tot die eis, nie onregmatig of wederregtelik is nie, met die gevolg dat die dader se nalatigheid dan nie ter sake is nie; terwyl die tweede verweer gebaseer is op die hipotese van die onregmatigheid van die daad sowel as die nalatigheid van die dader; en dat gevolglik die tweede verweer eers ter sprake kan kom as dit blyk dat die eerste nie suksesvol is nie. Vgl. Van der Merwe & Olivier, Die Onregmatige Daad in die SA Reg, 2de uitg., bl. 85, 92-93; 134-5; 150; Strauss, Aspekte van die Begrip 'Toestemming' in die Strafreg en die Deliktereg, (Mededelings van die Universiteit van Suid-Afrika, 1963), op bl. 60, 62-4; Rosseau v Viljoen, 1970 (3) SA op bl. 417 in fin - 418A. 'n Verweer van die aard van die appellant se eerste verweer word meestal beskou as daardie verskyningsvorm van 'n verweer van volenti non fit injuria wat genoem word, 'n verweer van 'vrywillige aanvaarding van risiko'. Lampert v Hefer, N.O., supra op bl. 508E - F, 513A - C, en die bronne aangehaal op bl. 512; Rosseau v Viljoen, supra op bl. 417E - G. Alhoewel dié benaming gerieflik is om hierdie soort gevalle te onderskei van gevalle van toestemming tot opsetlike benadeling of skadeberokkening, mag dit wees dat die juridiese aard van die verweer meer presies weerspieël word in die benaming van die verweer as 'toestemming tot die risiko van benadeling' (4) SA p766 Vgl. Van der Merwe & Olivier, op cit. op bl. 85, 92-4; Netherlands Insurance Co. of SA Ltd. v Van der Vyver, 1968 (1) SA op bl. 421B. Watter benaming ook al aan die verweer gegee word, skyn dit duidelik te wees, volgens aldie gesag, dat, om daarin te kan slaag, 'n verweerder moet bewys: (1) dat die eiser, in die geheel van die feitekompleks wat aanleiding gee tot sy eis, blootgestel was aan 'n gevaar of risiko van skadeberokkening aan, of benadeling van, homself; (2) dat die eiser bewus was van die gevaar of risiko; (3) dat die eiser die aard en omvang van die gevaar of risiko besef het en verstaan het; (4) dat die eiser vrywilliglik die gevaar of risiko aanvaar het, homself daaraan onderwerp het en daartoe toegestem het; (5) dat die wyse waarop skadeberokkening of benadeling vir die eiser veroorsaak is, val binne die bestek van die gevaar of risiko waarna verwys word in (1), (2), (3) en (4) hierbo. Waring & Gillow Ltd. v Sherborne, 1904 T.S. op bl ; Union Government v Matthee, 1917 AD op bl. 703; Lampert v Hefer, N.O., supra op bl. 514E tot 515 bo; Esterhuyzen v Administrator, Tvl., 1957 (3) S.A. op bl. 719C - D; Durban City Council v SA Board Mills Ltd., 1961 (3) SA op bl. 407B - C; Broom and Another v Administrator, Natal, 1966 (3) SA op bl. 519G; Netherlands Insurance Co. v Van der Vyver, supra op bl. 421C - H; Rosseau v. Viljoen, supra op bl. 417E - 421G. Uit die voorgaande volg dit dat 'n gerieflike, en ook die logiese, beginpunt van die ondersoek na die geldigheid van die verweer is om vas te stel op watter wyse presies die eiser se skade veroorsaak is, met die oog op punte (1) en (5) in die voorgaande paragraaf genoem, en om dan daarvandaan verder te ondersoek of daardie wyse van skadeveroorsaking val binne die vereistes genoem onder punte (2), (3) en (4) hierbo.

4 The opsigte van die oorblywende vereiste van die verweer, nl. vrywillige aanvaarding van die risiko en toestemming daartoe, word in oorweging gegee dat ditas uitgangspunt van belang is om voor oë te hou dat die toestemmingsbegripnie betrekking het op die werklike benadeling of skadeberokkening wat ingetree het nie, maar alleenlik op die risiko dat dit kon plaasvind. Die verweerberus nie daarop dat die eiser toegestem het dat die verweerder hom skade berokken nie, maar wel op die feit dat die eiser hom onderwerp het aan die gevaar van skadeberokkening deur die verweerder, verkies het om die kans daarvan te vat en aldus toegestem het tot die risiko wat hy sou loop. Van der Merwe & Olivier, op. cit., bl. 92; Strauss, op. cit., bl Op hierdie basis beskou, is die vrywillige aanvaarding van die risiko in baie gevalle alreeds vanself gelykstaande aan toestemming daartoe, met die gevolg dat 'toestemming' afgesonderd van 'aanvaarding' dikwels geen onafhanklike rol te speel het nie en ook geen besondere ondersoek verg nie. Vandaar dat in die bespreking van hierdie verweer daar dikwels geen uitdruklike verwysing na 'toestemming' naas 'aanvaarding' is nie; laasgenoemde is dikwels vanself afdoende bewys an eersgenoemde. Vgl. Lampert v Hefer, N.O., supra op bl. 509B - E; 513A - C, 514E - H; Rosseau v Viljoen, supra op bl. 417E - G, 418A - C. Dit word in oorweging gegee dat die vraag of die aanvaarding van 'n risiko in 'n feitlike sin gelykstaande is aan toestemming daartoe in juridiese sin, 'n kwessie is van afleiding uit die feite van elke geval, en dat daarby veral van belang is die aard envorm van die risiko, die gedrag van die verweerder 1973 (4) SA p767 waaruit die skade voortgespruit het, die opsigtelikheid van die risiko, die graad van moontlikheid of waarskynlikheid dat die risiko verwesenlik sou word, en die eiser se optrede in verband met, en die wyse van, sy onderwerping aan die risiko. Vgl. McMorrow v Colonial Govt., (1906) 23 S.C. op bl ; Waring & Gillow Ltd. v Sherborne, supra op bl ; Mandelbaum v Bekker, 1927 CPD op bl ; National Meat Suppliers (Pty.) Ltd. v Cape Town City Council, 1938 CPD op bl ; Rosseau v Viljoen, supra op bl. 420G - 421G; Price, Tydskrif vir Hed. R - H.R., 1952 (band. 15) op bl , 65-67; Strauss, op. cit., op bl. 45. Die redenasie van die Hof a quo wat gelei het tot die verwerping van hierdie verweer, was in 'n paar opsigte foutief. In die eerste plek het die Hof blykbaar die grondslag van 'n verweer van volenti gesien as 'n ooreenkoms tussen die party waarvolgens die eiser afstand doen van 'n eis om skadevergoeding op grond van nalatigheid, na aanleiding van die benadering van Glanville Williams. In die Engelse reg is daar voorstanders van dié standpunt, maar dit skyn tog nie daar algemeen gevolg te word nie. Strauss, op. cit. op bl ; Nettleship v Weston, (1971) 3 All E.R In ons eie reg is daar geen gesag hoegenaamd vir die standpunt nie. Inteendeel is die vereistes vir die verweer sonder uitsondering in al die sake waarna hierbo reeds verwys is, geformuleer sonder enige vermelding van 'n ooreenkoms as voorvereiste vir die toepassing van die verweer. Die suggestie dat daar in sommige sake 'n verwarring was tussen 'n ooreenkoms om nie te eis nie en 'n verweer van volenti, word nie gestaaf deur 'n verwysing na die sake wat in dié verband genoem word nie. Van der Merwe & Olivier, op. cit. op bl. 95; Morrison v Angelo Deep Mines Ltd., 1905 T.S. op bl. 781; Munarin v Peri-Urban Areas H.B., 1965 (1) SA op bl. 552C. Dit is die regsgevolg van 'n vrywillige toestemming tot die risiko van benadeling dat die eiser sy eis vir skadevergoeding op grond van nalatigheid verbeur, maar dit is nie korrek om 'n ooreenkoms tot dien effekte as voorvereiste van die verweer van volenti te postuleer nie. Van der Merwe & Olivier, op cit. op bl ; Strauss, op cit. op bl , In die tweede plek, alhoewel die Hof a quo beklemtoon het dat die vereiste toestemming betrekking moes hê

5 op die besondere gevaar wat uiteindelik die skade veroorsaak het, word aangevoer dat die Hof a quo verkeerd gegaan het in die verdere beskouing dat daar 'n onderskeid getrek moes word tussen die moontlikheid van skadeberokkening as gevolg van blote fisiese faktore, aan die een kant, en, aan die ander kant, die moontlikheid van skadeberokkening as gevolg van die nalatigheid (van watter graad of aard ook al) van die bestuurders van die voertuie, en deur te bevind dat die eiser toegestem het tot eersgenoemde en nie tot laasgenoemde nie. Die beswaar teen hierdie benadering is dat dit geen ruimte laat vir 'n oorweging van verskillende vorme of grade van nalatigheid nie, maar veronderstel dat alle vorme of grade van nalatigheid in dieselfde kategorie val. Hierdie indeling van aanvaarde en nie-aanvaarde risikos deur die Hof a quo het die Hof daarvan weerhou om raak te sien dat die wyse waarop hierdie botsing plaasgevind het, gepaardgaande met die vorm en graad van nalatigheidwat dit veroorsaak het, juis net so 'n klaarblyklike en opsigtelike risiko was as die ander voorbeelde van gevalle waar die Hof wel bereid sou gewees het om 'n afleiding van vrywillige 1973 (4) SA p768 toestemming te maak. In die derde plek het die Hof a quo te veel gewig geheg aan die vraag na die waarskynlikheid van 'n voorval soos wat plaasgevind heten die eiser se verwagting dat dit sou gebeur. Dit kan nooit 'n vereiste van hierdie verweer wees dat die eiser die waarskynlikheid van die verwesenliking van die risiko inderdaad moes verwag het nie. Al wat vereis word is dat die eiser die risiko moes begryp het en vrywilliglik toegestem het daartoe, deur die kans te vat dat dit wel verwesenlik sou word. Strauss, op. cit. op bl. 32. Op die basis dat die eiser hier die moontlikheid van nalatigheid van die bestuurders besef het, soos die Hof a quo tereg bevind het, is die verdere afleiding uit die omstandighede onvermydelik, dat die eiser vrywilliglik verkies het om homself te onderwerp aan die moontlikheid van die besondere vorm van nalatigheid wat hier inderdaad voorgeval het. In die alternatief tot die verweer van volenti kan aangevoer word dat, uit hoofde van die omstandighede waaronder die botsing plaasgevind het, soos hierbo bespreek, van der Schyff inderdaad nie in 'n juridiese sin nalatig was ten opsigte van die eiser nie, omdat die genoemde omstandighede enige sorgsaamheidsplig ('duty of care') van van der Schyff teenoor die eiser uitgeskakel het. Van der Schyff se optrede en wyse van bestuur was niks meer as wat inherent was in die omstandighede van die wedren nie, en daarom het hy geen versigtigheidsplig teenoor die eiser verbreek nie. Vgl. McKerron, Law of Delict, 7de uitg., bl. 36; Nettleship v Weston, supra op bl. 589F - 591C. Die sorgsaamheidsplig waarna hier verwys word het nie betrekking op die voorsienbaarheidskriterium van nalatigheid nie, maar wel op wat genoem kan word die beleidsaspek van die begrip van 'n 'duty of care'. Vgl. McKerron, op. cit. op bl. 35; Union Government v Ocean Accident & Guarantee Corp. Ltd., 1956 (1) SA op bl Indien die verweer van volenti misluk en dit bevind word dat van der Schyff nalatig was, dan kom die alternatiewe verweer van die eiser se bydraende nalatigheid ter sprake. Dit word aangevoer dat die Hof a quo ten volle geregverdig was om te bevind dat die eiser ook nalatig was. A. Chaskalson, S.C. (with him C.Z. Cohen), for the respondent: The first question is whether the defence of 'voluntary assumption of risk' is applicable on the facts of the present case. It is well established that this type of defence must be applied 'cautiously and with circumspection' and the onus of proving that the defence is applicable is on the first defendant. Netherlands Insurance Company of SA Ltd. v Van der Vyver, 1968 (1) SA atp. 421G - H; Waring & Gillow v

6 Sherborne, 1904 T.S. at p It is only if the alleged wrong falls squarely within the risk assumed, that the defence is applicable: Durban City Council v SA Board Mills, 1961 (3) SA at pp. 406D - F, 407B - C; Rosseau v Viljoen, 1970 (3) SA at p. 418B; Mandelbaum v. Bekker, 1927 CPD at p. 377; Rootes v Shelton, (1967) 116 C.L.R. 383; Bondarenko v Sommers, (1968) 69 S.R. (N.S.W.) 269 (C.A.). It can be inferred from van der Schyff's admission that he was obliged to have regard in his driving to the safety of the other persons who participated in the race, and from his dishonest denial of a collision coupled with an attempt tofabricate an exculpatory explanation, that he was well aware that he had 'broken the rules' and that he was at fault in that regard. S. v Nkomo, 1966 (1) SA at p. 833; S. v S., 1971 (2) SA at p (4) SA p E - G; Galante v Dickinson, 1950 (2) SA at p. 465; Minister of Justice v Seametso, 1963 (3) SA at pp. 535F - 536B. The first defendant failed to establish the defence of voluntary assumption of risk: Netherlands Insurance Company of SA Ltd. v Van der Vyver, supra at p. 421C - H; Durban City Council v SA Board Mills, supra at pp. 406D - F, 407B - C; Stolzenberg v Lurie, 1959 (2) SA at p. 74A - B; Rosseau v Viljoen, supra; Rootes v Shelton, supra; Bondarenko v Sommers, supra. Cf. Cleghorn v Oldham, (1927) 43 T.L.R. 465; Slater v Clay Cross Ltd., (1956) 2 All E.R. at pp. 627G - 628B; Wooldridge v Sumner, (1962) 2 All E.R. at pp. 982I - 983F, 989A - B; I; Nettleship v Weston, (1971) 3 All E.R. 581 (C.A.); Glanville Williams, Joint Torts and Contributory Negligence (1951), secs , and in particular pp. 296, 303, 307-8, ; Restatement of the Law, 2nd ed., p. 573 paras. (h) and (i) and illustration 7). It this is a case of voluntary assumption of risk, then it will be necessary to decide the question left open in Lampert v Hefer, N.O., 1955 (2) SA 507, namely, whether it is merely an example of contributory negligence or whether it is a separate and distinct defence. See Lampert v Hefer, N.O.,supra at pp. 508E - H, 515A. 'Voluntary assumption of risk' has been said to be related to the defence of volenti non fit injuria. Rosseau v Viljoen, supra at p And is usually treated as being the same as, or an example of volenti non fit injuria, Lampert v Hefer, N.O., supra at p. 508E. The earliest reported case in South Africa in which the defence of volenti non fit injuria is referred to seems to be Waring & Gillow v Sherborne, 1904 T.S The judgment refers only to English authorities but Waring and Gillow v. Sherborne was approved by the Appellate Division in Union Government v Mathee, 1971 AD 688, and has been accepted as being correct ever since then. In Mathee v Union Government, supra, it was said that the defence was 'distinct from contributory negligence, though in practice it may sometimes cover the same ground', and reference was made to the remarks of BOWEN, L.J., in Thomas v Quartermaine, 18 Q.B.D. at p. 697, where volenti non fit injuria was said to involve an absence of a duty of care. The judgment of FAGAN, J.A., in Lampert v Hefer, N.O., shows the confusion in the classification of the volenti defences which existed in According to Glanville Williams there was a similar confusion in England before the introduction of the Apportionment Legislation in See Glanville Williams, supra pp ; Nettleship v Weston, supra at pp See also Restatement of the Law, 2nd ed., Torts, vol. 2, pp As the matter is still open the element of 'consent' in a defence of voluntary assumption of risk requires proof of an express or implied agreement under which the injured party agreed to submit to the negligence which was committed or to the infliction of an

7 intentional assault upon himself and to waive any claim for injury resulting therefrom. And that the 'risk cases' which do not fall into this category should be classified as contributory negligence. Such a classification would have the advantage of protecting the rights of dependants, and ensuring that persons injured by the negligence of others are compensated therefor. Negligence can never be divorced from the facts and the conduct of the injured person and the alleged wrongdoer will always be relevant 1973 (4) SA p770 to determine whether or not there has been negligence. But once negligence has been proved the negligent person should be liable for the consequences of his misconduct, unless he can prove an undertaking to release him from the consequences thereof, or a prior undertaking not to hold him liable therefor. This seems to be the way the law is developing in England, Canada and New Zealand. Charlesworth on Negligence, 4th ed., chap. 25; Salmond on Torts, 15th ed., pp ; Glanville Williams, supra; Nettleship v Weston, supra at p. 588; Burnett v British Waterways Board, (1973) 2 All E.R. at p. 635; Morrison v Union Steamship Co. of New Zealand Ltd., 1964 N.Z.L.R. 469; Car and General Insurance Corporation Ltd. v Seymour, 1956 Canada Law Reports (Supreme Court of Canada) 322. Therefore, even if the plaintiff voluntarily assumed the risk of negligence in the sense that he knew and appreciated that Conradie and van der Schyff might be negligent during the race, unless he actually consent to such negligence being committed, his conduct should be classified as contributory negligence, and not as conduct which deprives him of all right to claim damages. The true cause of the plaintiff's injury was the manner in which the two vehicles were driven, and not the plaintiff's presence in one of them. If the driver's conduct was not reasonably foreseeable when the plaintiff agreed to go with Conradie, then it cannot be said that he submitted to such conduct or that he was negligent in not guarding against it. His presence in the car provided the occasion for his injuries - but was not a cause of them. The cause was the reckless manner in which the vehicles were driven round the bend. This was not an 'inherent risk' in going along as a passenger; it was a new and supervening cause for which the plaintiff was not responsible, and in relation to which he could take no avoiding action. S.S. Singleton Abbey v S.S. Paludina, 1927 A.C. at pp ; South British Insurance Co. Ltd. v Smit, 1962 (3) SA 826. If it should be held that the plaintiff knew or ought to have known that there was a risk of the drivers behaving as they did, then MARAIS, J., erred in reducing the plaintiff's damages by as much as one third. Shield Insurance Co. Ltd. v Theron, N.O., 1973 (3) SA 515; South British Insurance Co. Ltd. v Smit, 1962 (3) SA 826. Moreover, the apportionment should have been based on the extent to which the negligent acts or omissions were causally linked to the plaintiff's injuries, and not to the 'blameworthiness' of the parties to the incident. South British Insurance Co. Ltd. v Smit, supra at pp. 835H to 836D. In the circumstances the plaintiff's damages should not have been reduced by more than 10 per cent. Davies v Swan Motor Co. (Swansea) Ltd., (1949) 2 K.B If the defence of voluntary assumption of risk is construed widely so as to cover cases where no express or implied contract has been proved, then conduct giving rise to such a defence constitutes 'fault' within the meaning of the Apportionment of Damages Act. If an express or implied contract to absolve the 'wrongdoer' from liability has been proved, then the Act will not apply, because the contractual rights of the 'wrongdoer' are preserved by sec. 4 (1) (b) of the

8 Act. But in cases where a contract has not been proved the Act is applicable, and the assumption of the risk operates only to reduce the claim; 1973 (4) SA p771 and not to bar it. The South African apportionment legislation seems to have been based on the comparable English legislation contained in the Law Reform (Contributory Negligence) Act, But the narrow definition of fault in sec. 4 of the English Act was not followed. The word 'fault' can therefore be given its ordinary meaning, which would include (but not be confined to) contributory negligence. King, N.O. v Pearl Insurance Company Ltd., 1970 (1) SA 426, in so far as it holds that sec. 1 (3) of the Apportionment of Damages Act defines fault as far as a plaintiff is concerned, is incorrect. For the ordinary meaning of the word 'fault' in the context in which it appears in sec. 1 of the Act, see Oxford English Dictionary. There is no reason why in the case of a plaintiff, 'fault' should be construed narrowly so as to apply only to 'contributory negligence'. The object of the Act was to do away with the 'all or nothing' approach, and to protect plaintiffs whose own fault would previously have denied them the right to recover damages. This object would be met by construing 'fault' as applying to all misconduct which would have given rise to a defence at common law. In King, N.O. v Pearl Insurance Co. Ltd., supra, the Court was concerned with a suggestion that the Act had in effect prejudiced injured persons in certain respects by creating a new defence which would not have been available at common law (at p. 465F). The actual decision (if correct) is consistent with the submission that 'fault' should be construed in the manner set out above. The suggested construction would be consistent with the apparent object of the legislation. Cf. King, N.O. v Pearl Insurance Co. Ltd., supra at pp. 464F to 465A, and can be justified on the basis that 'fault' was used in its ordinary sense, and that the reference insec. 1 (3) to contributory negligence was introduced ex abundante cautela. Cf. Santam Versekeringsmaatskappy v Kemp, 1971 (3) SA at pp. 322C - 323A; The Restatement of the Law, supra at p Apart from the decision in King, N.O. v Pearl Insurance Co. Ltd., supra, this question has not previously arisen for consideration. Cases such as South British Insurance Co. Ltd. v Smit, supra, were not concerned with this question, and statements in such judgments equating fault to negligence should be construed as applying only to the facts of the cases, where, the only misconduct in issue was 'negligence', and not as deciding that fault could only mean negligence. Botha, S.C., in reply. Cur. adv. vult. Postea (September 24th). Judgment OGILVIE THOMPSON, C.J.: On 14th January, 1968, respondent was grievously injured as a result of a collision between a 1964 Fiat 1500 motor car, driven by one Conradie and wherein respondent was a passenger, and a 1961 Vauxhall Cresta motor car, driven by one van der Schyff, and of which appellant was the statutory third-party insurer. In respect of his injuries so sustained, respondent was, after a contested trial in the Witwatersrand Local Division, awarded

9 damages in the sum of R against Conradie and appellant jointly and severally. Against 1973 (4) SA p772 that judgment, appellant now appeals to this Court. No appeal has been lodged by Conradie who appeared in person, but neither called nor gave any evidence, at the trial. The respondent (to whom I shall refer as the 'plaintiff') has cross-appealed against that portion of the trial Court's judgment finding him equally to blame for the collision together with van der Schyff and Conradie: plaintiff seeks an increase in the amount of the award to R (being the aggregate of the agreed damages) or, alternatively, to R , being the agreed aggregate damages less 10 per cent. The judgment of the trial Court is fully reported (vide 1973 (2) SA 186), and I shall repeat the facts only in so far as is necessary to point the legal issues arising for decision in this appeal. The above-mentioned collision occurred while the Vauxhall and the Fiat were engaged, for a stake of R10, in a race - not inappropriately designated 'dicing' by its devotees - over a public road and in which it was, to the knowledge of all the participants (including plaintiff), contemplated that whenever practicable both vehicles would be propelled at their respective highest attainable speed. The public road chosen as the 'race track' for this contest was Rondebult Road - said by the learned trial Judge to be 'an open country road' - near Boksburg. In the direction in which the cars were racing, Rondebult Road takes a sharp left-hand bend - the only bend in the course selected for the race, whose winning post was well beyond the bend - and it was at this bend that the collision occurred. Rondebult Road has a tarmac surface approximately 22 feet wide and runs straight for about 11/2 miles before reaching the above-mentioned bend. For a further description of this bend and of the manner in which plaintiff sustained his injuries, I quote the following from the judgment of the learned Judge a quo: 'The bend in question is at the bottom of a gentle incline of 1 in 35 and a sign warning of the curve in the road is at the near side of the road. The bend is in any event visible in its entirety for some considerable distance to motorists approaching, as did the two competitors, from the Boksburg end of the Rondebult Road. In the shallow hollow the road turns to the left through some 40º at a comparatively short radius, making the bend rather sharp - which is the reason for the warning road sign. The road surface has no noticeable camber to assist drivers in taking the change of direction. The surface appears to be such that skidding is unlikely in normal conditions. In... (this bend) the Fiat left the tarred surface at a speed of about 70 miles per hour, probably faster, the driver lost control, the car careered through the veld over an uneven and stony surface, overturned, smashed through a farm gate and crashed into a transformer station of brick and concrete. At the farm gate the plaintiff, who was the passenger in the Fiat, was hurledout of the vehicle and severely injured. Almost four years later he gave his evidence in court from a wheel chair. He is permanently paralysed from the seventh cervical vertebra downwards. No harm came to the two persons in the Vauxhall, but the driver of the Fiat was picked up a considerable distance from the wreck of his car; he was unconscious but not as seriously injured as the plaintiff. He is now the second defendant.' As already mentioned, Conradie neither gave nor called any evidence at the trial. His plea that

10 he lost control of the Fiat because of a failure of its steering mechanism remains entirely unsubstantiated. Van der Schyff's evidence that the Fiat had left the road while it was still well behind the Vauxhall was rejected by the trial Court, which accepted plaintiff's version of the fateful occurrence. That version, inter alia, included 1973 (4) SA p773 a statement that, immediately before contact between the two vehicles occurred, there was a space of approximately two to three feet between the right side of the Vauxhall and the left side of the Fiat. The learned trial Judge's examination of the evidence relating to the conflicting versions of van derschyff and plaintiff is to be found at pp. 187F to 191C of the report. For the purposes of this appeal, it suffices to cite the following further extracts from his judgment: 'When the two cars were partly alongside each other in the bend, with the Fiat on the outside (its incorrect side) trying to overtake the Vauxhall, the Vauxhall swerved towards the Fiat and its right hand rear came fairly forcibly into contact with the left flank of the Fiat. The latter thereafter went out of control off the road. The inference is irresistible that it was this movement to the right of the Vauxhall that sent the Fiat on its fateful course... The plaintiff, as stated above, ascribes the collision to a surmised skid of the rear of van der Schyff's car and, failing evidence to the contrary, this theory will have to be accepted as the one that is probably true'. None of the above findings were questioned before us. Nor was the correctness of MARAIS, J.'s, conclusion that the two drivers (van der Schyff and Conradie) were negligent and 'equally to blame for the collision' in any way challenged by counsel for the appellant, who, while suggesting en passant that Conradie had been more at fault than van der Schyff, stated that that aspect was immaterial to his contensions. Inasmuch as Conradie is not before us, I refrain from any comment regarding the degree of his fault in comparison with that of van der Schyff. It suffices to say that, in attempting to overtake the Vauxhall on the bend at such a high speed, Conradie was obviously gravely negligent. As to van der Schyff, by 'dicing', pursuant to his agreement and wager with Conradie and with a passenger in each car, along this public road he was deliberately participating in a hazardous, and indeed unlawful, activity. The evidence indicates that as the Vauxhall approached the bend in this relatively narrow public road it was probably travelling in the vicinity of 90 miles per hour. Van der Schyff did reduce speed somewhat before entering the bend, and it apparently was that reduction which enabled Conradie to narrow the gap between the two vehicles to about one yard as they entered the bend. On the learned trial Judge's credibility findings van der Schyff must at all material times, both before and on the bend, have been aware of the relative positions of the two competing vehicles which, at the critical stage on the bend and immediately prior to the Vauxhall's further acceleration next mentioned, were travelling at approximately 70 m.p.h. Plaintiff testified that the Vauxhall's above-mentioned skid to its right coincided with a further increase in the Vauxhall's speed. It is thus in the highest degree probable that it was this further acceleration which caused the Vauxhall's rear to skid to the right and make contact with the Fiat. In the light of all the aforegoing, the likelihood of a collision between the cars on the bend and resultant injury to their occupants would have been foreseen by a reasonable man driving the Vauxhall. The appeal accordingly falls to be decided upon the premise that the averment that

11 van der Schyff's negligence causally contributed to plaintiff's injuries was duly established at the trial. In addition to a plea denying negligence on the part of van der Schyff, appellant pleaded (for the full details see p. 188 of the report) 1973 (4) SA p774 in the Court below that plaintiff was in any event not in law entitled to recover from it because (i) he had voluntarily assumed the risks entailed in the race; or, alternatively, (ii) he had been contributorily negligent in participating in the race with full knowledge of its unlawful and hazardous nature. The further allegation in the plea that plaintiff had acted as referee was not established at the trial; nor was it satisfactorily proved that plaintiff knew of the R10 wager on the race. For the reasons to be found at pp. 191C to 195C of the report, MARAIS, J., held that the first of the above defences was not made out, but that plaintiff had been contributorily negligent in that he had 'failed to avoid what would have appeared to a reasonable man to be a distinct risk of harm to life or limb'. Expressing the view that plaintiff had been 'in it' with van der Schyff and Conradie, the learned Judge decided that it would be fair if plaintiff 'shared the blame equally with them'. Plaintiff's damages having been agreed in the sum of R , MARAIS, J., accordingly granted judgment, with costs, in the sum of R against the two defendants jointly and severally. The main argument advanced on behalf of the appellant in this Court was that the defence of voluntary assumption of risk should have been upheld, with the resultant total rejection of plaintiff's claim. In the alternative, counsel for appellant submitted that if, contrary to his main submission, only contributory negligence on the part of plaintiff falls to be assessed, MARAIS, J.'s, above-mentioned apportionment, being primarily based upon the number of the main participants in the race, is illogical and insupportable; and that an appropriate apportionment would be an equal division between plaintiff, on the one hand, and, on the other hand, the two defendants jointly and severally. Before us counsel for the plaintiff supported the learned Judge a quo's rejection of the defence of voluntary assumption of risk, submitted that plaintiff's conduct amounted only to contributory negligence and, further, that the trial Court's apportionment was so unduly favourable to the defence as to warrant interference by this Court. Developing this last submission, counsel for the plaintiff argued that the predominant cause of plaintiff's injuries was the manner in which the cars had been driven, and urged upon us that, in respect of his contributory negligence, plaintiff's damages should have been reduced by no more than 10 per cent. An alternative submission advanced by counsel for the plaintiff was that, even if this Court should, contrary to his above-stated submissions, hold the defence of voluntary assumption of risk to be established against plaintiff, in the premises such voluntary assumption nevertheless falls within the concept of 'fault' as that term is used in sec. 1 of the Apportionment of Damages Act, 34 of 1956, and that, consequently, plaintiff's claim would not be wholly defeated but be subject only to reduction on apportionment pursuant to the provisions of sec. 1 (a) of that Act - the

12 appropriate amount of such reduction being, counsel submitted, the aforementioned 10 per cent. The rule that no injury is committed against one who consents is as old as Digest, (see McKerron, Law of Delict, 7th ed., p. 67, and the authorities collated in Macintosh & Scoble, Negligence in Delict, 5th ed., p. 55). In modern times this rule is conveniently, and more 1973 (4) SA p775 usually, expressed in the maxim volenti non fit injuria, which was said by DE VILLIERS, C.J., in Bennett v Morris, 10 S.C. 223 at p. 227, to be a maxim of the English law. That statement was repeated by DE VILLIERS, C.J., in Davids v Mendelsohn, 15 S.C. 367, but was there correlated with Digest, , which deals with contributory negligence. However that may be, the defence indicated by the maxim is undoubtedly recognised in our law. The maxim comprehends a wide field. In its simplest forms - of which express consent to a surgical operation or the tacit consent of participants in a contact sport such as rugby football afford clear illustrations - the defence gives rise to little or no difficulty. In practice it is the application of this volens defence in what are conveniently known as 'risk' cases which presents problems. In such cases the defence is variously designated the 'voluntary assumption', 'voluntary acceptance', or 'voluntary encountering' of risk, or risk of injury. Strauss, 'Aspekte', infra, p. 34, mentions other designations; but whatever designation is employed, the defence remains essentially that of volenti non fit injuria. In certain types of risk cases the existence of a specific already known danger is brought to the notice of the person who is subsequently injured. (Spires v Scheepers, 3 E.D.C injury by an aggressive ostrich - affords an illustration; the cases relating to entering upon premises known to be dangerous afford other examples). Into yet another category fall those cases - usually called the 'rescue' cases - wherein a person, actuated by a spontaneous endeavour to succour another, is himself injured as a result of having encountered a previously existing danger, e.g., endeavouring to extract an accident victim from a burning motor car. For a discussion of how such cases are regarded in the English law, see, e.g., Clerk & Lindsell, Torts, 13th ed., para. 104, and Winfield, Torts, 8th ed., p In the present case the issue raised by the appellant's main contention is that plaintiff, having elected to participate - albeit only as a passenger, but with full knowledge of what 'dicing' entailed - in the contest, must be regarded as having voluntarily assumed the risk of being injured in the race and is, accordingly, disentitled to any redress. The present is thus neither a 'rescue' casenor one of assuming a known and already existing danger. Unless the context indicates otherwise, what follows is, accordingly, not to be regarded as being of direct application to either of those two last-mentioned types of cases. In addition to the three decisions already mentioned, the defence of volenti non fit injuria has not infrequently arisen for consideration in the Provincial Divisions. See, inter alia, Waring & Gillow Ltd. v Sherborne, 1904 T.S. 340; Mandelbaum v Bekker, 1927 CPD 375; South African Railways v Cruywagen, 1938 CPD 219; National Meat Suppliers (Pty.), Ltd. v Cape Town City Council, 1938 CPD 498; Stolzenberg v Lurie, 1959 (2) SA 67 (W) ; Broom and Another v The Administrator, Natal, 1966 (3) SA 505 (D). In none of these cases was the nature of the defence very fully considered. A more comprehensive examination of the defence is, however,

13 to be foundin the persuasive judgment of VAN WINSEN, J., in Rosseau v Viljoen, 1970 (3) SA 413 (C). Various South African writers (e.g. McKerron, op. cit., pp. 67 et seq.; Macintosh & Scoble, op. cit., pp. 55 et seq.; Van dor Merwe and 1973 (4) SA p776 Olivier, Die Onregmatige Daad, 2nd ed., pp. 92 et seq.) devote some consideration to the defence. The volenti doctrine is exhaustively examined by Prof. Strauss in his doctoral thesis entitled 'Toestemming tot Benadeling as Verweer in die Strafreg en die Deliktereg', of which an abridged edition is also available in an University of South Africa publication under the title 'Aspekte van die Begrip, Toestemming' in die Strafreg en die Deliktereg' (and to which I, for convenience, refer as 'Aspekte'). So far as this Court is concerned, the defence of volenti non fit injuria was mentioned, and shortly disposed of, in Union Government v Matthee, N.O., 1917 AD 688 at p. 703; received rather fuller examination, but met with the same fate, in Durban City Council v SA Board Mills Ltd., 1961 (3) SA 397 (AD) at pp ; and was again not upheld in Netherlands Insurance Co. of SA Ltd. v Van der Vyver, 1968 (1) SA 412 (AD) at p But only in Lampert v Hefer, N.O., 1955 (2) SA 507 (AD), has volenti non fit injuria, in that aspect particularly relevant to the present case, received close consideration. In Lampert v Hefer, N.O., supra, the plaintiff had, while travelling as a passenger in a side-car driven by one Hefer, been injured in an accident caused by Hefer's negligence and in which he himself was killed. In an action instituted in the Transvaal Provincial Division by the plaintiff against Hefer's executor, that Court upheld the defence of volenti non fit injuria on the ground that when plaintiff entered the side-car to commence the fatal journey Hefer was, to plaintiff's knowledge, in a highly intoxicated state. Plaintiff's application for leave to appeal in forma pauperis against the judgment of the Provincial Division was refused. In refusing relief, this Court expressed its disagreement with the decision of ASQUITH, J., in Dann v Hamilton, (1939) 1 K.B. 509, where, on virtually identical facts, the defence of volenti non fit injuria was not sustained. Delivering the main judgment of this Court, FAGAN, J.A., after quoting extensively from various authorities, said (at p. 512H) the following: 'The confusion which my quotations show to exist in the classification of this type of defence may well increase the difficulty, while at the same time rendering more imperative the necessity, of seeking to obtain clarity on the principles involved in it.' The learned Judge of Appeal went on (vide pp ) to illustrate how the respective defences of volens and of contributory negligence may often overlap and, after considering the evidence and stating that 'serious intoxication in the driver of a motor-vehicle must always involve a risk of accident', reached the conclusion (vide p. 514H) that the plaintiff 'must have or should have appreciated that risk, even though he and she had been lucky before'.

14 In expressing his agreement with FAGAN, J.A.'s conclusion that the application must be dismissed, SCHREINER, J.A., added some further remarks concerning the volens defence. These included an allusion to potential problems regarding claims by dependants and (at p. 508F) the following observation: 'Upon further consideration it may be found more convenient to treat consent cases of the risk-kind always as examples of contributory negligence or, conceivably, as a third category distinct from and standing on the same level of classification as the permission to assault category on the one hand and that of contributory negligence on the other.' 1973 (4) SA p777 Lampert v Hefer, N.O., was of course decided before the Apportionment of Damages Act, 34 of 1956, at a time when the all-or-nothing rule of the commonlaw of contributory negligence was still of universal application. In consequence, although the volenti defence 'is a defence distinct from contributory negligence' (Matthee's case, supra at p. 703), it was not vital to found the decision in Lampert v Hefer, N.O., supra, explicitly upon either volenti or upon contributory negligence. Having regard to the somewhat detailed analysis of the plea to be found at pp. 509 and 513A - C of the report, it is, I think, fair to say that the general tenor of the judgments is to decide against the applicant on the volenti ground. It is however noteworthy that, before concluding his judgment with the remark that the applicant 'must have known and appreciated the risk and elected to encounter it', SCHREINER, J.A.,had also made some reference (vide p. 509C - D) to the question of contributory negligence, which latter would appear to have been equally embraced in FAGAN, J.A.'s above-cited conclusion at p. 514H of the report. The ambivalence discernible in the two judgments is underlined by the circumstance that FAGAN, J.A., went out of his way (vide p. 515A) to express his concurrence in SCHREINER, J.A.'s judgment, while the third member of the Court (GREENBERG, J.A.)is recorded as having concurred in both judgments. Writing in 20 Tydskrif, 138 at pp. 141, 144, Prof. Schwietering expressed the opinion that the true defence in cases like Lampert v Hefer, N.O., supra, is not volenti non fit injuria but contributory negligence. As in Lampert's case, supra, no question arises in the present case regarding dependants. Passing allusion was made to their position in Matthee's case, supra at p There exists a considerable weight of authority to the effect that, if established, the volens defence eliminates any duty of care - or, as some writers prefer to put it, negatives the commission of any actionable unlawful act - and, consequently, that it would operate entirely to exclude any claim by dependants (see, e.g., McKerron, op. cit., pp. 70 to 73; Strauss, 'Aspekte', p. 60; Van der Merwe and Olivier, op. cit., pp ; Schwietering, op. cit., p. 144; and cf. also Salmond, Torts, 15th ed., p. 665, and Walker, The Law of Delict of Scotland, 1966 ed., vol. II, p. 731). Contrary views are however not entirely lacking (see Macintosh & Scoble, op. cit. pp. 62 et seq. and Price, 66 S.A.L.J., pp , and 1952 Tydskrif, p. 80). Bearing in mind the peculiar nature of the dependants' action in our law, I express no opinion on this controversy, and wish to record that nothing in this judgment should be regarded as leaving the position of a possible claim by dependants anything but open for future decision as and when it should arise.

15 Counsel for the plaintiff invited us to lay down that in the present case, and indeed in all risk cases of the present type, the injured party's conduct should be treated, not as falling within the volens doctrine, but as contributory negligence only. Apart from such support for it as may be found in Lampert v Hefer, N.O., supra, this submission is in general accord with what appears to be the tendency in some other jurisdictions. Thus in Imperial Chemical Industries Ltd. v Shatwell, 1965 A.C (4) SA p (where, on facts readily distinguishable from those of the present case, the defence of volenti non fit injuria was ultimately upheld) Lord PEARCE, after referring (at p. 686) to the 'inglorious role' which the defence formerly played in master and servant cases, and saying that in modern times the defence had become more rare because 'it usually overlapped contributory negligence', went on to add that: 'Since contributory negligence has ceased to be a total defence and it has become possible to produce a fair result by apportionment, the reluctance to find the total defence of volenti non fit injuria became more marked.' Substantially the same point is made by learned writers. To refer to only three. Glanville Williams, Joint Torts and Contributory Negligence, after contrasting the volens defence with contributory negligence, remarks (at pp ) that the cases, inter alia, indicate that this defence 'rarely applies in negligence actions' and adds: 'In almost every negligence action of modern times where the defence of volens has been raised, it has failed. This is because the cases in which a person truly consents to run the risk of another's negligence are altogether exceptional.' Fleming, The Law of Torts, 4th ed., commences his chapter on voluntary assumption of risk by drawing attention (vide p. 239) to the fact that the defences of volens and contributory negligence often overlap. After remarking that, prior to the introduction of apportionment, both defences operated to defeat a plaintiff entirely, he goes on to say that, express waivers apart, the Courts have tended to 'impose ever stricter requirements for the defence of volenti to the point where it is now but rarely successful'. Prosser, Law of Torts, 4th ed., pp. 439 et seq., examines assumption of risk in American law at some length. In the concluding paragraph of his learned discussion he summarises his views (at p. 457) thus: 'All this goes to say, however, not that there is no such defence as assumption of risk, but that in many cases, at least, where it overlaps and coincides with contributory negligence, the rules of that defence should be applied to it.' Then, after venturing a prediction that the defence of volenti is not likely to disappear entirely, Prosser ends the chapter by saying that volens is, however, 'by no means a favoured defence, and it is likely to be at least limited and restricted in the future'. As appears from what I have already said, the defence of volenti non fit injuria has long been

16 recognised in South Africa. The respective criteria for the defence of volens and for that of contributory negligence are, theoretically, radically different. The former entails a subjective enquiry related to the particular plaintiff, while the latter calls for an objective enquiry inconformity with the standard of the bonus paterfamilias. In my opinion, neither the circumstance that certain practical difficulties (to which I make fuller reference below) are inextricably involved in the above-mentioned subjective enquiry nor the observations (previously alluded to herein) made in Lampert v. Hefer, N.O., supra, afford any sufficient warrant for hereafter treating all risk cases of the present type as constituting contributory negligence only. While the volens defence and that of contributory negligence no doubt sometimes overlap, I see no adequate reason for depriving a defendant of the complete defence of volens in risk cases of the present type, provided always that the facts sufficiently establish the requisites of that defence, and provided further that, as was stated in Sherborne's case, supra at p. 344, and reiterated in Netherlands Insurance Co. Ltd. v. Van der Vyver, supra at p. 421, the volenti defence is always applied with caution and circumspection (4) SA p779 I am therefore unable to accede to plaintiff's counsel's submission that we should treat the present case as falling outside the volens doctrine. I accordingly proceed to address myself to the enquiry as to whether the volens defence was - as is contended on behalf of appellant - established. This in turn entails an initial enquiry regarding what, as a matter of law, has to be established. That the onus of establishing this defence rests upon appellant, is common cause. Nor is it disputed that the essential elements of the defence were correctly stated in INNES, C.J.'s well-known succinct summary of 'knowledge, appreciation and consent' (vide Waring & Gillow v Sherborne, supra at p. 344).The overall enquiry is undoubtedly one of fact to be determined in relation to the circumstances of the particular case (Strauss, 'Aspekte', p. 52). Little or no difficulty is encountered regarding the first two of the above-mentioned essential elements; but it is in relation to the requisite of 'consent' that problems of considerable difficulty present themselves. It is well established that knowledge and appreciation alone do not constitute such consent; as is sometimes said, the maxim is volenti non fit injuria, and not scienti non fit injuria. Where express consent exists, it becomes a matter of construction to determine what precisely is embraced by such consent. In cases, like the present, where the contention is that the risk of injury was accepted, the enquiry however revolves around the ambit of the implied consent to be ascribed to the complainant, and with specific regard to the question of whether the supervening injury was sustained in consequence of a risk falling within that ambit. As Fleming, op. cit. p. 244, remarks, 'the central problem to which divergent answers continue to be given is what justifies the conclusion that a particular risk has been assumed'. The divergence here mentioned by the learned author is well illustrated by the decisions in various jurisdictions concerning accidents occasioned by drunken drivers of vehicles. In

17 Lampert v Hefer, N.O., supra, this Court disagreed with the view which had been taken in Dann v Hamilton, supra, and expressed approval of the standpoint adopted in the Australian case of Insurance Commissioners v Joyce mentioned at p. 511 of the report of Lampert's case. On somewhat similar (although not identical) facts, the Supreme Court of Canada subsequently reached a different conclusion, holding that the volens defence had not been established, but only contributory negligence. At least one member of the Court (RAND, J., at p. 328) expressly disagreed with Joyce's case and affirmed his agreement with Dann v Hamilton. (See Car & General Insurance Corporation Ltd. v Symons & Maloney, 1956 S.C.R. 322). Glanville Williams, op. cit., p. 308, concludes the passage fully cited by MARAIS, J., at pp of the report by saying that to establish the volens defence 'there must have been an express or implied bargain between the parties whereby the plaintiff gave up his right of action for negligence'. At p. 314 the learned author sums up his views by suggesting that 'there must be some sort of intercourse or communication between the plaintiff and defendant from which it can reasonably be inferred that the plaintiff has given an assurance to the defendant that he waives any right of action that he may have in respect of the conduct of the defendant' (4) SA p780 This approach is adopted in many of the English decisions. For instance, in Nettleship v Weston, (1971) 3 All E.R. 581 (C.A.), and, although the other members of the Court expressed themselves in somewhat different terms, Lord DENNING, M.R., (in effect reiterating a view he had indicated more than once in earlier cases) said at p. 587H: 'Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waiveany claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him.' A similar tendency would appear to be favoured in New Zealand. See Morrison v Union Steamship Co. of New Zealand Ltd. and Another, 1964 N.Z.L.R. 468 (C.A.), wherein TURNER, J., at pp , concluded an extensive review of English and Commonwealth authorities by saying: 'I am of the opinion that in the absence of express agreement, or at least of some transaction or intercourse between the parties which may be short of contract, but from which the plaintiff's assent may be clearly inferred, the maxim volenti non fit injuria cannot now be invoked in respect of negligent acts of the defendant which are still in the future at the time when the plaintiff is said by his conduct to have shown himself volens.' Reference to the Restatement of the Law, 2nd ed., Torts, chap. 17A, para. 496, pp , read together with the relevant appendix, reveals that assumption of risk, in its various forms, has frequently been considered by the American Courts. Here too a considerable divergence of judicial view is discernible in the different jurisdictions, and the position is further complicated by different legislative provisions - inter alia, the so-called host-guest relationship created by statute in some of the States and which regulate, in varying degrees, the rights as between the

18 driver of a vehicle and his passengers (see American Jurisprudence, 2nd ed., p. 35, para. 47, and cf. Strauss, 'Aspekte', p. 47). Without a detailed and accurate knowledge of such provisions, the Restatement must, I consider, be regarded as of but slight persuasive assistance in relation to the problems arising in the present appeal. It is however of some passing interest to note that in it are to be found references to decisions which appear to lend direct support to both sides of the conflicting contentions in this appeal. The particular facet of the enquiry presently under consideration is discussed, with special reference to the drunken driver cases, in certain portions of a learned article by D.M. Gordon in 82 L.Q.R. 62, but it would not appear to have received any detailed examination in our own law. Accepting that the overall enquiry is whether the complainant has been shown - the onus being upon the defence - to have consented to the risk of injury (Van der Merwe and Olivier, op. cit., p. 92), considerable obscurity surrounds the nature and the extent of the proof required to establish such consent. Strauss, 'Aspekte', p. 32, advances the opinion that such consent is to be inferred whenever the complainant has knowingly exposed himself to danger; but in a footnote he quotes Bohlen as taking a somewhat divergent view. In my judgment, Strauss states the position too widely. On the other hand, I do not consider that in our law it is incumbent upon a defendant advancing the defence of 'volens' to go so far as to prove the 'express or implied bargain' favour by Glanville Williams. Such a 'bargain' - as also the 1973 (4) SA p781 learned author's paraphrase of 'some sort of intercourse or communication between the plaintiff and defendant' - connotes a bilateral consensus which, soit seems to me, places an unduly heavy onus upon the defendant, and is not in accord with the general tenor of our own decisions. Gordon, op cit., p. 71, opines that 'the term volens should not be taken to suggest a subjective test; an objective test is what is really wanted'. This cannot, in my opinion, be accepted as a wholly satisfactory solution; for, as already indicated, under our law the enquiry is basically a subjective one, and in such an enquiry foresight is a cardinal feature. I am accordingly of opinion that, if it be shown that, in addition to knowledge and appreciation of the danger, the claimant foresaw the risk of injuryto himself, that will ordinarily suffice to establish the 'consent' required to render him volens - provided always that the particular risk which culminated in his injuries falls within the ambit of the thus foreseen risk. The inherent difficulty that the central factum probandum - viz. the consent to the particular risk which occasioned the supervening injuries - is basically a subjective enquiry can, I suggest, only be bridged by way of inference from the proved facts. In the nature of things, direct evidence will seldom, if ever, be available; and manifestly the negative ipse dixit of the claimant himself can by itself usually carry but little weight. The Court must, in my view, thus perforce resort first to an objective assessment of the relevant facts in order to determine what, in the premises, may fairly be said to have been the inherent risks of the particular hazardous activity under consideration. Thereafter the Court must proceed to make a factual finding upon the vital question as to whether or not the claimant must, despite his probable protestations to the

19 contrary, have foreseen the particular risk which later eventuated and caused his injuries, and is accordingly to be held to have consented thereto. The foregoing appears to me to afford a practical method of dealing with what is admittedly a somewhat difficult problem, to be in general conformity with our decisions in so far as they touch this point (see, e.g. Mandelbaum's case, supra at p. 377), and, more particularly, to be in accord both with the vital conclusion of SCHREINER, J.A., in Lampert v Hefer, N.O., supra at p. 509E, that the applicant 'must have known and appreciated the risk and elected to encounter it', and with the view of VAN WINSEN, J., at p. 418A - C of Rosseau v Viljoen, supra, that an enquiry is, inter alia, required regarding - 'the question of whether - and this is a subjective enquiry - an inference arises from all the evidence that plaintiff must have understood and accepted such risk'. Turning now to a closer examination of the facts of the present case in the light of the principles indicated in the preceding paragraph, it is obvious that 'dicing' is a hazardous undertaking. The plaintiff had (as a passenger) 'diced' with Conradie on previous occasions. He knew Conradie's Fiat, and before the start of the contest he saw van der Schyff's Vauxhall. He was aware of the chosen 'race track' over which these two far from new cars were to compete, and he knew of the existence of the bend in the Rondebult Road. Against the background of these admitted facts, counsel for appellant, directly challenging the correctness of the distinctions drawn by 1973 (4) SA p782 MARAIS, J., at pp of the report, argued that the speed and manner of taking the bend, the Vauxhall's skid, the collision between the vehicles and plaintiff's resultant injuries were all risks inherent in this 'dicing' contest, and that, in the premises, all the elements of the volens defence had been established. That the two drivers would, in the heat of the contest, take the bend in the manner they did and thereby cause a collision was, said counsel for appellant, a risk so inherent in the hazardous 'dicing' over the chosen course as necessarily to have been foreseen, and consented to, by the plaintiff. These are cogent arguments meriting most careful consideration. 'Dicing' is manifestly a hazardous activity. While it is highly probable that - youth being what it is - the plaintiff never in fact gave any serious consideration to the dangers entailed, I entertain no doubt that, bearing in mind his prior experience with Conradie, plaintiff must be held to have been volens in relation to the risks ordinarily inherent in 'dicing' - for instance, a burst tyre. On the other hand, it is, I consider, clear that, merely by participating in the 'race', plaintiff cannot be held to have assumed the risk of injury resulting from grossly negligent behaviour on the part of one of the drivers - for example, removing both hands from the steering wheel while driving at 90 m.p.h. Conduct of that kind clearly falls outside the ambit of the hazards which may be said to be necessarily inherent in 'dicing' and in respect of which a participant may fairly be regarded as 'volens'. In this connection, I agree with the observation of Lord BRAMWELL, which was cited

20 with approval by DAVIS, J., in the National Meat Suppliers case, supra at p. 505, that - 'A man may be volens to encounter the natural dangers of a business, but not those superadded by negligence.' The same idea is, I think, well expressed by Millner, Negligence in Modern Law, p. 111 in fine, thus: 'It is further to be observed that the cases in which the assumption of risk principle is operative are ordinarily instances of risks inherent in the situation. They are not risks produced by another's negligence, but the unforeseeable, or at least unpreventable, incidents of the situation.' Generalisations of this nature are of course not of absolute universal application, as the drunken driver cases serve to illustrate. In my opinion the true rationale of the drunken driver cases lies in the obvious and notorious correlation between extreme intoxication and negligent driving. The passenger who sets out upon a journey with a driver who is to his knowledge heavily under the influence of liquor may hope that no accident will supervene, but he can hardly be heard to say that he did not assume the risk of injury caused by negligent driving resulting from the driver's intoxication. As stated earlier in this judgment, plaintiff's injuries were caused by the negligent driving of van der Schyff and Conradie as they proceeded around the bend in the road. It is in respect of the risk of injury caused by that negligence that appellant must, on a balance of probabilities, show that plaintiff was volens (Rosseau's case, supra at p. 418D; Broom's case, supra atp. 519G and cf. Street, The Law of Torts, 4th ed., p. 164; Restatement, Torts, 2nd ed., pp ). The cardinal question accordingly remains: can the events that happened - the negligence of the drivers in rounding the bend as reflected in the speed and juxtaposition of the cars around the bend, van der Schyff's acceleration 1973 (4) SA p783 and consequent skid resulting in a collision between the two-fast-moving vehicles - rightly be regarded as risks so inherent in this particular 'dicing' contest as must have been foreseen and, consequently, consented to by plaintiff? The evidence does not, in my opinion, afford any decisive answer to the question last-posed above; but there exists, in my view, a slight balance in plaintiff's favour. For his assertions to the effect that he neither contemplated nor assumed the risk that van der Schyff and Conradie would drive negligently around the bend are in some measure supported by the only other witness, namely van der Schyff. The latter, although insisting that he always had the Vauxhall under control on the bend, freely agreed that he never was under the impression that, because he was engaged in a 'dicing' contest, he was entitled to disregard the safety of any of the participants in the race or to drive in a manner which would expose them to danger. Reprehensible though 'dicing' undoubtedly is, driving in a negligent manner during such a 'race' is not necessarily and inevitably an inherent incident of the contest. Whether or not the plaintiff consented to the risk of injury through the negligent driving of van der Schyff and/or Conradie during the race is admittedly a question of fact. Cf. Letang v Ottawa Electric Railway Co., 1926