Tomasi v Bhangazi Horse Safaris CC

• Jurisdiction: South Africa
• Judge: Van Heerden AJ
• Judgment Date: 20 February 2009
• Docket Number: 8496/2007
• Court: Durban and Coast Local Division
• Hearing Date: 20 February 2009
• Citation: 2009 JDR 0155 (D)

Van Heerden AJ:

1)

On the 2nd March 2006, during the course of the morning, plaintiff, Mr. Dicky Tomasi and his companion Orrietta Callegaro found themselves at a public car park, immediately adjacent to the beach at St. Lucia, KwaZulu Natal. They were from Italy and on holiday in South Africa, for the third time in so many years. They had arrived in St. Lucia two weeks earlier and the day before, whilst walking on the beach, they encountered a number of people enjoying a horse ride. Plaintiff was interested and approached the lady who, to him, appeared to be in charge of the ride. She explained to plaintiff that he and his companion were welcome to join a ride scheduled for the following day and, if they were inclined to do so, should be at the car park at a specified time. Arrangements were then made to that effect.

2)

In the event the next day, as arranged, plaintiff and his companion arrived at the car park. All of this is common cause. It is also common cause that not long afterwards plaintiff had sustained a serious injury in the process of which he lost his right eye when

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kicked in the face by a horse named Chester. Almost all of the other events preceding and leading up to the accident are by and large in dispute. It is common cause, however, that immediately after the accident plaintiff, then a pensioner aged 68, was taken to hospital in Empangeni where his right eye was removed. He was the following morning transferred to Entabeni hospital in Durban where further neuro surgery was performed on him.

3)

Plaintiff in due course instituted action against the owners of the horse, Bhangazi Horse Safaris CC, who conducts and operates horse back safaris and rides in the greater St. Lucia Wetland Park, Northern KwaZulu Natal. In his particulars of claim plaintiff alleges that he was kicked by Chester and by doing so Chester acted contra naturem sui generis or because of some inner vice. In the alternative plaintiff alleges that defendant attracted an ex delicto duty of care in respect of plaintiff to, inter alia, properly and skilfully supervise and oversee plaintiff's interaction with Chester and to render such assistance as was necessary at the time plaintiff attempted to mount the horse. It was further alleged that the duty of care which defendant allegedly attracted extended to the taking of reasonable and necessary steps to prevent the risk of injury to plaintiff in consequence of possible panic, excitement and/or agitation on the part of the horse occasioned by the unruly and aggressive behaviour of three dogs (under control of defendant's servants) in it's immediate vicinity at the time plaintiff attempted to mount the horse. Plaintiff alleged that defendant failed in its said duty in both aforesaid respects.

4)

Defendant denied the aforesaid allegations and alleged, in return that plaintiff prior to the accident, in any event, indemnified the defendant in writing from liability for the kind of liability and damage respectively alleged and claimed by plaintiff.

5)

In his opening address Mr Pammenter, who appeared for plaintiff, confirmed the intention of the parties to proceed on liability only and I duly made such an order in terms of the provisions of Rule 33(4).

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He also confirmed that plaintiff would indeed proceed with the matter on the basis foreshadowed in the pleadings.

The plaintiff's ex delicto claim.

6)

In his evidence plaintiff mentioned that four people were to go on the horse ride that fateful morning. He said there was a French couple, his companion and him. He testified that the French couple mounted their horses first whereupon he, together with employees of defendant, assisted Ms Callegaro to mount her horse. Plaintiff testified that he thereafter attempted to mount his horse but failed in his first attempt because the stirrups were adjusted too high. He testified that as he was about to do so again, three dogs which he had noticed on the beach the previous day in the company of the riders, arrived at the scene. He testified that they were involved in what to him appeared to be a play fight, growling and barking and in the process landed up underneath Chester. At that point in time, plaintiff said, he was standing next to the horse, on its left-hand side, and facing it. He said that as he was bending slightly forward and to his right to see what was going on underneath his horse, Chester made a sudden movement with his left rear leg and kicked him in the face, causing the injury alluded to above.

7)

Ms Callegaro, plaintiff's companion, corroborated plaintiff's version in every respect, more specifically in relation to the dogs landing up beneath Chester, growling and barking. I should add that both plaintiff and Ms Callegaro testified that when they arrived at the car park, the dogs were present but keeping themselves busy some distance away from where the horses were waiting to be mounted.

8)

Ms Rebecca Sebag-Montefiore, now 25 years old, testified for the defendant. She said she was employed by defendant as a Horse Manager approximately three years before the incident took place. She confirmed that she was the person the plaintiff had spoken to the previous day on the beach. She confirmed that on that day her three dogs accompanied her on the ride, as they did on almost a

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daily basis. She described the dogs as a Jack Russell and a Fox Terrier, two small but fully grown animals, and a cross Wiemaraner puppy of about six months. She conceded that the dogs were present at the car park on the day in question but testified that they were sniffing around some overflowing rubbish bins, some distance away from where the horses were gathered. She denied that they were play fighting anywhere near the horses. Ms Montefiore testified that she was so positioned at the time of the incident that she could clearly see the events unfold. She mentioned that by the 2nd March 2007 she had already given notice of her resignation to defendant and that the person she was teaching to take over as horse manager from her, Mr Sakhile Mthabela, was to manage the ride that morning under her supervision. She confirmed that plaintiff failed in his first attempt to mount Chester and that he attempted to do so again. At that stage, according to her, Mr Mthabela was holding the reins of Chester and standing in front of the horse. Another assistant, one Themba Khubeka, was standing on the off- side (right hand side) of Chester, holding the stirrup on that side in order to stabilise the saddle so as to ease the passage of plaintiff onto the horse. Ms Montefiore described how Chester, at the moment plaintiff was in the process of mounting, suddenly moved forward and bucked slightly. She testified that plaintiff in the process lost his balance and fell backwards to the ground. It was during this that the left rear hoof of Chester made contact with the plaintiff's face and caused the injury. She testified that the whole incident took place in a short space of time and that she was unsure of whether, in the process of bucking, Chester's hoof made contact with the plaintiffs face as it was going up or coming down. She said the incident happened too fast for her to be certain. Ms Montefiore was however adamant that at the critical time the dogs were nowhere near Chester and most definitely not barking and growling in a mock-fight directly underneath Chester.

9)

Mr Mthabela corroborated the evidence of Ms Montefiore in almost every material respect. He testified, however, that as plaintiff landed near Chester's left rear leg the latter gave a "small kick" to

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the side, which resulted in Chester's left rear hoof making contact with plaintiff's face. Mr Mthabela, like Ms Montefiore, was however adamant that at the time of the incident no dogs were present in Chester's immediate vicinity and he was certainly not startled by them.

10)

It soon became apparent that the whereabouts of the dogs in question became an issue in the determination of the question whether defendant attracted any delictual liability. In this regard the court is faced with mutually destructive versions. The thrust of plaintiff's case in this regard is that the dogs were present directly underneath Chester and that they played a critical roll in the conduct and reaction of Chester. Defendant's version is that the dogs were nowhere near Chester at the critical moment and played no part in the unfortunate incident.

11)

The said mutually destructive versions cannot co-exist. In the matter of National Employers' General Insurance Co Ltd versus Jagers 1984(4) 437 (ECD) guidance is given on how to determine issues in such circumstances. At 440 D-G the full bench, through Eksteen AJP expressed itself as follows:

"It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his...