Merryweather and Another v Scholtz and Another (7965/2009) [2021] ZAWCHC 125 (22 June 2021)

Merryweather and Another v Scholtz and Another (7965/2009) [2021] ZAWCHC 125 (22 June 2021)

The court found, on a balance of probabilities, that the Third Defendant, Oliver Scholtz, wrongfully and intentionally spear tackled the First Plaintiff, Andrew Merryweather, causing the catastrophic spinal injury. The self-defence version advanced by Oliver was rejected as improbable, unsupported by the evidence, and failing to meet the requirements for lawful self-defence. The expert evidence, particularly from the biomedical experts, supported the Plaintiff's version that a spear tackle was the more probable cause of injury. The Fourth Defendant, Oliver's father, was not found liable for costs, as there was no evidence of control or financial benefit from the litigation. The...

Citation
[2021] ZAWCHC 125
Parties
Plaintiff: Andrew Merryweather; Plaintiff: Nicholas Merryweather; Defendant: Oliver Scholtz; Defendant: Gerard David Peter Scholtz
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 June 2021
Case Number
7965/2009
Procedural Posture
Civil Trial / Merits and Costs Determination After Rescission of Default Judgment
Outcome
Plaintiff's claim against the Third Defendant succeeds on the merits. The Third Defendant is liable for damages and costs. The Fourth Defendant is not liable for costs. No special costs order is granted.
Judges
Y S Meer
Legal Topics
Aquilian Action, Bodily Injury, Self Defence, Dolus Eventualis, Expert Evidence, Costs Liability
Delict Aquilian Action Bodily Injury Self Defence Dolus Eventualis Expert Evidence Costs Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Andrew Merryweather

Plaintiff

Nicholas Merryweather

Plaintiff

Oliver Scholtz

Defendant

Gerard David Peter Scholtz

Defendant

Procedural Posture

Civil Trial / Merits and Costs Determination After Rescission of Default Judgment

Legal Issues

  1. 1 Whether the injuries sustained by the First Plaintiff were caused by the Third Defendant's wrongful and intentional conduct.
  2. 2 Whether the Third Defendant acted in self-defence or exceeded the bounds of reasonable defence.
  3. 3 Whether the Fourth Defendant is liable for costs as co-defendant.

Ratio Decidendi

The court found, on a balance of probabilities, that the Third Defendant, Oliver Scholtz, wrongfully and intentionally spear tackled the First Plaintiff, Andrew Merryweather, causing the catastrophic spinal injury. The self-defence version advanced by Oliver was rejected as improbable, unsupported by the evidence, and failing to meet the requirements for lawful self-defence. The expert evidence, particularly from the biomedical experts, supported the Plaintiff's version that a spear tackle was the more probable cause of injury. The Fourth Defendant, Oliver's father, was not found liable for costs, as there was no evidence of control or financial benefit from the litigation. The...

Court Disposition

Plaintiff's claim against the Third Defendant succeeds on the merits. The Third Defendant is liable for damages and costs. The Fourth Defendant is not liable for costs. No special costs order is granted.

Orders

  • The First Plaintiff's claim against the Third Defendant succeeds on the merits.
  • The Third Defendant shall pay the First Plaintiff's costs in this action and in the appeal on a party and party scale.