Persons and organisations involved in holding potentially dangerous events and activities such as skydiving, and which may involve minors, should take heed of a recent decision of the [.] Court in E de Kock (plaintiff) v Witbank Skydiving Club (first defendant) and K Elliot (second defendant.) The court was obliged to examine the consequences of a skydiving jump that went wrong and where the injured person was a minor. The facts were briefly the following:
On the 17th of May 2008 the plaintiff completed her first static line skydiving jump at the Witbank Skydiving Club. On landing, she was injured. She sued the first defendant under whose auspices she underwent the skydiving training and her instructor as second defendant who was responsible for her de facto instruction and who also accompanied her on her first jump. The plaintiff’s claim was couched in delictual terms. She alleged that at the time of the incident she was a minor. The plaintiff alleged that there at all times rested an onus on the defendants to take steps to ensure that a minor, such as herself, would not participate in skydiving jumps without having obtained the necessary permission and training. She alleged that the second defendant acquiesced in her completing an application form pertaining to skydiving instruction whilst knowing that she was at the time a minor. It was also alleged that inasmuch as she did not have the necessary permission or authority from her parent or guardian, her training and subsequent jump should not have been permitted by the club and its instructor. She did not allege that her training nor the jump itself was conducted in a negligent manner.
In a special plea filed on behalf of the first and second defendants, they relied on an “indemnification and consent” form with which the plaintiff had familiarised herself. The form incorporates terminology to the effect that the plaintiff acknowledged that parachuting is potentially hazardous and that by participating she put herself at risk of injury and indeed death. The form also incorporated an indemnity in favour of the two defendants. In their plea to the merits, the first and second defendants pleaded that the plaintiff had represented to them that she had the consent of her guardian to participate in the first jump giving rise to the injury. They also relied on the signed indemnification and consent form. In the alternative, the defendants pleaded that the plaintiff was fully aware of the risks and dangers of participating in sky jumping activities and that she voluntarily consented to the associated risks (volenti non fit injuria).
The consent / indemnity form received the court’s scrutiny. The evidence revealed that it was a printed form consisting of two parts. The first provided for the furnishing of personal details as well as the signing of the indemnity. The second provided a space for the furnishing of the consent of a minor’s parent or guardian. It also incorporated a declaration confirming an acknowledgement that parachuting and skydiving is a potentially hazardous activity and, by participating, persons put themselves at risk. It further indemnified the first defendant against claims.
In respect of the first part of the form, the plaintiff inserted her details i.e. first name, surname, etc. and signed the indemnity. The second part was completed by a person unrelated to the plaintiff (one Jackie Rossouw) who, however, did not complete the portion indicating her relationship to the plaintiff, nor did she complete the portion in which she should have given her permission for the plaintiff to participate in a first jump. The evidence led at the trial made it clear beyond doubt that Rossouw was not the guardian of the plaintiff and was merely another student at the Witbank Skydiving Club.
The court was clearly impressed with the evidence of the second defendant, the instructor. He had vast experience spanning 30 years as a parachutist / instructor starting with his career in 1977 in the British Parachute Regiment. Over many years he trained thousands of students and received amongst others, the “chief instructor of the year” award from the Parachute Association of South Africa in 2004. He had nothing to do with the completion of the form. He was merely briefed for the day as instructor as he had been many times before. More importantly, the plaintiff did not allege or plead a claim against him based on the manner in which he completed the instruction nor the jump itself. Based on the evidence before it, the court thus dismissed the claim against the second defendant and focused on the case against the first defendant.
The court then examined the position in regard to voluntary assumption of risk with emphasis on minor children. The court found that, both factually and objectively, the plaintiff had not obtained assistance or consent from her parent or guardian. It was common cause that the person who signed the indemnity after the plaintiff had done so was not the plaintiff’s legal guardian and could not furnish the necessary assistance or authority. The court concluded that it was necessary for such assistance to have been given in the first instance to enable the defendant to rely on the defence based on voluntary assumption of risk. It held that the defendant had a legal duty to ensure that the plaintiff received the appropriate consent and assistance from her parent or guardian. The court found that this requirement assumed the character of a legal duty in the first defendant’s sphere of operations and then asked:
“Has the first defendant breached this legal duty? It is clear from the evidence which I have extensively referred to above, that the first defendant, although it requires consent to be given and an indemnification to be completed, did so for formality’s sake only and not substantively. The fact that the first defendant’s manifest officer even deems it appropriate to complete a form ex post facto for the sole purpose of complying with the first defendant’s requirements that forms must be completed, confirms this.”
The court continued:
“He made no effort to ascertain any verification of the identity of Jackie Rossouw or even of her own age. He made no enquiries from Jackie Rossouw as to her version of her relationship to the plaintiff. His explanation as to what a “guardian” could be, falls far short, not only of any proper court awarded or other form of guardianship, but even short of whether Jackie Rossouw was in any manner “in control” of the plaintiff or acting in the stead of her parents. He blandly relied on the explanation given by the plaintiff (by then a known minor) as to whether Rossouw was her guardian or could in fact qualify as such.”
The court concluded that the first defendant was negligent of the duty as pleaded.
An interesting question posed during the judgment was whether the defendants could rely on the plaintiff’s misrepresentation applying the principles of estoppel i.e. whether the plaintiff could be legally prevented from relying on the lack of consent of her parent or guardian. As the court correctly pointed out:
“This issue has attracted some debate in analogist circumstances where an unassisted minor has fraudulently misrepresented his majority and contractual capacity.”
Having considered case law on the matter, the court expresses the following view:
“In my view the answer lies in the following: whilst a doli capax minor (a minor with full legal appreciation of his or her conduct) (my underlining) may be held liable for committing a delict, i.e. wrongful act where he is prejudicing another party, those acts should be distinguished from acts where the age of majority should operate to protect those minors who may unilaterally think that they are doli capax enough to consent to the risk of injury to themselves. I am further fortified in this view in that my reading of the whole content and tenor of the Children’s Act and the subsequent case law regarding the best interests of children, all emphasize the need for the protection of “young persons”. This protection should also be in respect of their obligations and liabilities against themselves or their own conduct, if not in general, then certainly in respect of the present case and the risk of injury inherent in the activities presented by the first defendant. I therefore find that the defence of estoppel cannot be relied on by the defendants.”
In a further attempt to avoid liability, it was argued on behalf of the first defendant that there was no factual / causal connection between the injuries sustained by the plaintiff and the conduct of the first defendant. It is convenient to quote from the judgment in this regard:
“In the present instance one need not speculate whether the injury would have ensued had there been proper consent for the mere participation in the potentially risky sport of skydiving and the potentiality of a novice minor injuring herself is exactly what could have been prevented by insistence on legally competent consent. There was no evidence of any attempt to get hold of the plaintiff’s mother or any other indication as to whether she would have granted or refused her consent. As facts stood “on the day” the plaintiff would not have gone up in the aircraft and performed a student “first jump” had it not been for the first defendant’s negligent breach of its duty. … I therefore find that the injury, manifesting exactly the risk foreseen by the first defendant, is causally sufficiently closely related to the defendant’s breach.”
In the result the plaintiff succeeded with her action against the first defendant, having failed to establish a liability on the part of the second defendant.
The judgment is an interesting example of the need to make enquiries regarding the legal status of a contracting party. Based on the facts in question, the court held that there was a need on the part of a party contracting with a minor to ascertain whether she was duly assisted in concluding a contract. Had the first defendant made the enquiry it would have realised that it was dealing with a contracting party whose capacity to do so was legally imperfect. Had the enquiry been conducted, the plaintiff would not have participated in the skydiving exercise and would not have been injured.
Back to top