Tomasi v Bhangazi Horse Safaris CC (8496/2007) [2009] ZAKZHC 11 (20 February 2009)

Tomasi v Bhangazi Horse Safaris CC (8496/2007) [2009] ZAKZHC 11 (20 February 2009)

The court found that the plaintiff failed to prove negligence on the part of the defendant or its employees. The evidence established that the horse's conduct was unexpected and that reasonable steps were taken to supervise and assist the plaintiff. However, under the actio de pauperie, the court held that the plaintiff discharged the onus of proving that the horse acted contrary to the nature of domesticated horses, thereby establishing strict liability. The indemnity form completed by the plaintiff was not signed in a manner that authenticated its contents or signified assent to its terms, and thus did not constitute a binding contract exempting the defendant from liability. The...

Citation
[2009] ZAKZHC 11
Parties
Plaintiff: Dicky Tomasi; Defendant: Bhangazi Horse Safaris CC
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
20 February 2009
Case Number
8496/2007
Procedural Posture
Civil Trial / Liability Only; Rule 33(4) Separation
Outcome
Plaintiff succeeds under the actio de pauperie; defendant is liable for damages to be proven.
Judges
Van Heerden AJ
Legal Topics
Actio De Pauperie, Negligence, Indemnity Clause, Contractual Exemption, Personal Injury
Delict Land and Property Actio De Pauperie Negligence Indemnity Clause Contractual Exemption Personal Injury

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 18 Party arguments 2
Sign in to unlock

Parties

Dicky Tomasi

Plaintiff

Bhangazi Horse Safaris CC

Defendant

Procedural Posture

Civil Trial / Liability Only; Rule 33(4) Separation

Legal Issues

  1. 1 Whether the defendant is liable for the plaintiff's injuries under delictual principles.
  2. 2 Whether the defendant is liable under the actio de pauperie for injuries caused by a domesticated animal.
  3. 3 Whether the indemnity form signed by the plaintiff exempted the defendant from liability.

Ratio Decidendi

The court found that the plaintiff failed to prove negligence on the part of the defendant or its employees. The evidence established that the horse's conduct was unexpected and that reasonable steps were taken to supervise and assist the plaintiff. However, under the actio de pauperie, the court held that the plaintiff discharged the onus of proving that the horse acted contrary to the nature of domesticated horses, thereby establishing strict liability. The indemnity form completed by the plaintiff was not signed in a manner that authenticated its contents or signified assent to its terms, and thus did not constitute a binding contract exempting the defendant from liability. The...

Court Disposition

Plaintiff succeeds under the actio de pauperie; defendant is liable for damages to be proven.

Orders

  • Defendant is ordered to pay to plaintiff such damages as he may subsequently prove.
  • Defendant is ordered to pay the costs of action to date hereof.