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[2006] ZASCA 96
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Walker v Redhouse (393/05) [2006] ZASCA 96; [2007] 4 All SA 1217 (SCA); 2007 (3) SA 514 (SCA) (31 August 2006)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE
NO:393/05
Reportable
In
the matter between
HOWARD
WALKER Appellant
and
SANDRA
REDHOUSE Respondent
CORAM
:
MTHIYANE and LEWIS JJA and MALAN AJA
HEARD:
22 August 2006
DELIVERED
:
31 August 2006
Summary:
Pauperian liability for injuries sustained while horse
riding excluded by indemnity signed by rider.
Neutral citation: This case may be cited as
Walker v
Redhouse
[2006] SCA 95 (RSA)
.
JUDGMENT
LEWIS JA
[1] Horses will be horses. That is why their owners, on permitting
others to ride them, generally try to avoid the risk of liability
should accidents happen and the riders are injured. This is such a
case. The appellant, Mr Howard Walker, owns a guest farm at
Walkersons Estate in Mpumalanga. One of the leisure activities
offered to guests is horse riding. The respondent, Ms Sandra
Redhouse,
an English visitor to South Africa, went with her partner,
Mr Allan Winkelman, to stay at the lodge. She and Winkelman were
invited
to go horse riding with a member of staff, Ms Karlien Malan.
They accepted the offer, as did two other guests, Mr and Mrs Naudé.
Redhouse and Winkelman met Malan at the stables. Before mounting a
horse Redhouse was asked to sign an indemnity form. She did
so. In
the course of the ride the horse bolted, and Redhouse fell off and
was dragged on the ground by the horse because her one
foot was
caught in the stirrup.
[2] When Redhouse sued Walker for damages resulting from injuries
sustained when she fell off the horse, named Maverick, and was
dragged along the ground, he raised as a defence the terms of the
indemnity. It is this that forms the kernel of the appeal before
us,
which lies with the leave of the court below (the Pretoria High
Court, per Bosielo J). Bosielo J found that Walker was liable
under
the
actio de pauperie
for the damages suffered. The quantum of
damages was not determined, the issues of liability and quantum
having been separated
by the court at the request of the parties.
[3] The pauperian action lies against the owner of a domestic or
domesticated animal which has caused damage. Liability is strict
–
based simply on the ownership of the animal.
1
But the owner will be liable only if the animal has acted
contra
naturam sui generis
– contrary to the nature of the class
of animals.
2
The indemnity signed by Redhouse was pleaded as a defence to the
action. And it was argued in the court below that the indemnity
excluded liability under the pauperian action (as well as under
alternative claims based on negligence or contractual beach). Yet
it
did not feature in the judgment of Bosielo J save for a cursory
mention. The court concluded that Walker was liable under the
pauperian action because Maverick had acted
contra naturam
,
and did not discuss the effect of the indemnity at all. Walker
argues on appeal that the court below erred in failing to consider
the effect of the indemnity. The appeal thus turns on the meaning and
effect of the indemnity, for if it does exclude liability
under the
pauperian action then there is no need to determine whether such
liability was correctly found to have been present.
[4] The indemnity reads:
‘
Walkersons Stables
Terms and Conditions
I hereby confirm that neither Walkersons or Critchley
Hackle, or any member of their staff shall be liable to me, my estate
or dependants
for any loss or damage sustained as a result of my
death or injury to my person or property in the course of my horse
riding about
the property of Walkersons.
I acknowledge that I am aware of the risks involved in
horse riding and accept such risks.’
It is signed and dated (6 January 2001) by Redhouse. The terms of the
indemnity are not in dispute. It is only their interpretation
that is
placed in issue.
[5] Walker contends that the indemnity excludes his liability, as
owner of the horse, for the injuries sustained by Redhouse. Redhouse,
on the other hand, argues that the indemnity does not cover any risks
other than those which normally arise in the course of horse
riding:
Maverick had acted
contra naturam sui generis
, and thus
Redhouse had not assumed the risk that befell her. Before considering
the respective interpretations of the indemnity
contended for by the
parties it is useful to consider in brief the evidence led at the
trial. Redhouse testified as did Winkelman.
Malan and Mr Naudé
gave evidence for Walker. I shall not deal with the evidence in any
detail since I consider it unnecessary
for the decision of the
matter.
[6] The lodge arranged for Malan, who was in charge of leisure
activities, and who is an experienced rider, to take the four guests
for what was called an ‘outride’ on Walker’s
property. They went to the stables at the appointed time, and were
required to sign indemnities before being given helmets and allowed
to mount the horses allocated. Malan testified that she had
given the
guests a briefing on how to ride, bearing in mind that they were
novices. (Redhouse claimed to have ridden as a child,
but that she
had told Malan that she had not been on a horse for 15 years prior to
the incident. Naudé had also ridden as
a child, but regarded
himself as inexperienced.) Naudé confirmed that she had told
them various things about riding. Redhouse
and Winkelman, on the
other hand, denied that Malan had given them any instructions.
[7] The guests all rode on their mounts in a paddock and then went
off on the ride. Malan herself led the ride, Redhouse following
and
Winkelman bringing up the rear. The horses walked for about 30
minutes before Malan stopped on a dam wall to see that all the
guests
proceeded safely through a dip. Redhouse stopped next to Malan. Just
before Redhouse stopped, according to Malan and to
Naudé,
Maverick stumbled but then regained his footing and came to a stop
next to her. Malan thought he might have been
frightened by a small
animal. Redhouse denied that Maverick had been frightened or had lost
his footing.
[8] Malan and Naudé gave similar accounts of what followed.
Redhouse stood up in the stirrups, leaning forward and clinging
to
Maverick’s neck. She had let go of the reins. The horse ran off
– bolted – cantering at first and then galloping.
Both
heard Redhouse scream as Maverick took off. Naudé had heard
her shriek even before she stood up and let go of the reins.
Winkelman, who was behind Malan and Redhouse when Maverick took off,
said that while he had not seen Maverick bolt, he had seen
the horse
galloping with Redhouse in the stirrups, leaning forward. He had
thought at the time that she was ‘showing off’.
[9] According to Redhouse she had fallen off Maverick, but one foot
had been stuck in the stirrup and she had thus been dragged
for a
while before she managed to free the foot, hence the extent of the
injuries alleged. She was assisted by men fishing nearby,
who took
her back to the lodge, from where she was taken to a local clinic.
[10] The essential point of dispute is whether Maverick bolted for no
reason, or whether he was startled and instinctively ran
off. The
evidence of Malan and Naudé, who was an independent witness,
being a guest at the lodge at the same time as Redhouse,
shows that
Maverick was startled by something; that Redhouse reacted, that she
stood up in the stirrups and placed her arms around
the horse’s
neck, losing control by letting go of the reigns. Winkelman’s
evidence supports the version that she had
leaned forward, standing
in the stirrups. Redhouse’s denial that the horse was startled,
that she stood up and that she held
on to Maverick’s neck, is
thus in direct contrast with that of the three witnesses to the
events. It is true that there are
differences between them on various
aspects and on the sequence of events. But the scene was a moving one
and they were in different
positions. The inherent probability is
that Maverick lost his footing, Redhouse was startled, cried out,
stood up, lost hold of
the reins, and frightened the horse into
bolting.
[11] If so, Maverick cannot be said to have acted
contra naturam
.
He reacted as horses do when startled or frightened. This was indeed
the evidence of an expert witness called for Walker. But
even if
Maverick had acted
contra naturam
, argues Walker, he had
contracted out of pauperian liability. Redhouse contends, on the
other hand, that the indemnity does not
exclude liability for loss or
injury caused by a horse which has not behaved as horses typically
do. The argument of Redhouse is,
in summary, that the phrase in the
indemnity ‘in the course of my horse riding’ relates to
the activity for which she
contracted – to ride under
supervision on a suitable horse. If this is so, the argument goes,
then Redhouse’s injuries
were not sustained in the course of
horse riding.
[12] Counsel for both parties agreed that the indemnity is to be
interpreted in the light of the background circumstances.
3
These included, argued counsel for Walker, the fact that Walker
wished to protect himself from liability for any loss or damage;
that
the activity of horse riding was purely for entertainment and thus
‘elective’; that horses are potentially dangerous
animals, and not machines; and that riders are individuals with
different temperaments and abilities. The mix of horses and riders
is
thus risk-laden, and yet the owner faces strict liability should a
horse act
contra naturam
. The very purpose of the indemnity is
thus to protect the owner from liability in such a risky situation.
[13] While conceding that indemnity provisions should be construed
restrictively,
4
Walker contends that the provision in question is couched in
unambiguous language and has a wide import. It embraces ‘any
loss or damage . . . sustained as a result of . . . injury to my
person . . . in the course of my horse-riding about the property
of
Walkersons’. There is no restriction, on the wording, in
respect of the cause of the injuries for which liability is excluded.
Any injury which results from horse riding is covered. And while an
exemption clause will be construed against the person in favour
of
whom it has been made (
contra proferentem
) when ambiguous, one
should not strain the meaning of the language to find the ambiguity.
[14] Dealing with the proper approach to the interpretation of
indemnity clauses, this court said in
Durban’s Water
Wonderland (Pty) Ltd v Botha
:
5
‘
The correct approach is well established. If the
language of the disclaimer or exemption clause is such that it
exempts the
proferens
from liability in express and unambiguous terms, effect must be given
to that meaning. If there is ambiguity the language must
be construed
against the
proferens
.
(See
Government of the Republic of South
Africa v Fibre Spinners & Weavers (Pty) Ltd
1978 (2) SA 794
(A) at 804C.) But the alternative meaning upon which
reliance is placed to demonstrate the ambiguity must be one to which
the language
is fairly susceptible; it must not be “fanciful”
or “remote” (cf
Canada Steamship
lines Ltd v Regem
[1952] 1 All ER 305
(PC) at
310C-D
[1952 AC 192]).
’
[15] The ambiguity for which Redhouse argues is that the word ‘any’
qualifies ‘loss or damage’. It does
not cover injuries
sustained where a horse has acted
contra naturam
because the
provision is silent on the question of what causes the injury. Thus
one must have regard to the surrounding circumstances:
these include
the fact that the guests who participate in organized horse riding do
not have specialist knowledge of horses and
their behaviour. Guests
would not be aware that horses act untypically. They would foresee
only ordinary risks.
[16] Counsel for Redhouse placed great reliance for this argument on
Lawrence v Kondotel Inns (Pty) Ltd
6
in which Findlay AJ found that an exemption clause did not exclude
liability under the pauperian action where a horse had bolted,
thus
acting, in his view,
contra naturam
. In construing the clause
in question (which simply stated that ‘all riders ride at their
own risk: if any accident should
occur’ the defendant hotel
would not be held responsible) Findlay AJ said:
7
‘
It seems to me that what was here envisaged were
the normal or usual occurrences which might occur such as a horse
stumbling if
it caught its foot in a pothole or shying suddenly or
being startled by some sudden event. It is possible that this type of
risk
could also have extended to incidents during the ride such as
inexperienced riders unintentionally jostling one another. Had a
rider been injured by brushing against a fence post or tree in the
course of the ride or been unseated by the horse stumbling or
being
jostled in the circumstances in which I have described, it seems to
me that those were the sort of events contemplated by
the parties. I
do not think that the clause is intended to cover misconduct on the
part of the animal had it, for example, turned
and bitten the rider
or bolted as it did. I would have expected language in the clause
warning the rider more expressly that the
horses had a tendency to be
frisky or to bolt on an intermediate ride and that riders should
therefore not undertake these rides
unless they were capable of
controlling their horses.’
[17] Whether a horse (or any other animal) can be considered guilty
of misconduct is a matter that need not now be decided. The
court in
Lawrence
held that when a horse ridden by a young child, who
could not control it, had bolted, and the child had fallen, been
dragged, and
seriously injured, the hotel was liable because the risk
of bolting had not been contemplated by the parents of the child: the
horse had broken out of line and acted
contra naturam
. The
exemption clause did not therefore constitute a defence to the claim.
[18] Findlay AJ found support for his decision that the bolting of a
horse is
contra naturam
in texts of the Roman Dutch jurists
Voet
Commentarius ad Pandectas
9.1.5 and Grotius
Introduction
to Dutch Jurisprudence
3.8.12 which commented on pauperian
liability arising when horses were harnessed and supposed to be under
the control of a driver.
There could be no distinction, he said,
between a horse harnessed to a cart and one being ridden. Again,
whether this is correct
need not be decided.
Lawrence
is
distinguishable from this case because the wording of the exemption
provision was quite different, as were the circumstances.
And whether
an animal has acted unnaturally must in each case be a question of
fact. There is no exhaustive or closed list of circumstances
in which
it can be said that an animal has acted either
secundam
or
contra naturam
. A horse may well bolt quite naturally when
frightened by a rider, or for some other reason.
[19] Redhouse nonetheless contends that the wording of the indemnity
in issue in this case does not cover liability for injury
caused in
abnormal circumstances not contemplated by the parties: it is not
injury from ‘any cause whatsoever’. In
my view, this
interpretation strains the wording of the indemnity. It requires
words to be read in which limit the causes of injury.
There is
nothing to suggest that that was the intention of either of the
parties. The indemnity provides that Walkerson’s
stables shall
not be liable for loss sustained ‘as a result of my injury . .
. in the course of my horse riding . . .’.
The language clearly
covers all liability resulting from, or caused by, the activity of
riding a horse, whether or not the injury
is caused by a horse acting
out of character. This interpretation is consistent with the second
sentence of the indemnity in which
Redhouse acknowledged that she was
aware of the risks involved in horse riding and accepted them. The
extent to which such a provision
may be enforceable (for example
where the person indemnified has contracted out of liability for the
negligent performance of a
contract
8
)
does not arise here. There was certainly no evidence of negligence or
any wrongdoing on the part of Walker or his staff.
[20] Accordingly I consider that even if Walker were liable to
Redhouse on the pauperian action he has effectively contracted out
of
such liability. The indemnity is a complete defence to the claim.
[21] The appeal is upheld with costs including the costs occasioned
by the employment of two counsel. The order of the court below
is set
aside and replaced with the following:
‘The Plaintiff’s claim is dismissed with costs.’
C H Lewis
Judge of Apeal
CONCUR
:
Mthiyane
JA
Malan AJA
1
See 1 Lawsa 2 ed para 464.
2
See
Loriza Brahman v
Dippenaar
2002 (2) SA 477
(SCA).
3
Reliance was placed in this regard on
Van
der Westhuizen v Arnold
2002 (6) SA
453
(SCA), paras 13 and 23.
4
See
Afrox Healthcare
Bpk v Strydom
2002 (6) SA 21
(SCA);
Durban’s Water Wonderland (Pty)
Ltd v Botha
1999 (1) SA 982
(SCA);
First National Bank of SA Ltd v
Rosenblum
2001 (4) SA 189
(SCA) and
Johannesburg Country Club v Stott
2004 (5) SA 511
(SCA).
5
Above at 989G-J.
6
1989 (1) SA 44
(D).
Lawrence
was approved in
Visagie v Transsun
(Pty) Ltd
[1996] 4 All SA 702
(Tk) at
719c-720d.
7
At 54E-G.
8
See in this regard the judgment of Harms JA
commenting on
Afrox Healthcare
above, in
Johannesburg Country Club v
Stott
above, para 12, and contra
Marais JA paras 14-16.