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| horses will be horses |

Horses will be horses was exactly what the learned Lewis JA commented in his decision in the case of Walker v Redhouse. Redhouse, the Plaintiff, tried to claim damages via the Actio de Pauperie, an action to claim damages from the owner of a domesticated animal.  The Defendant, Walker, however claimed that he contracted out of any liability by way of an indemnity form.

 

The High Court found the Plaintiff liable to the Respondent in terms of the action de pauperie for bodily injuries she had sustained while horse riding.

 

The accident happened whilst the Plaintiff, an English tourist, and her partner were on holiday in South Africa. The incident happened on a game farm, which provided for horse riding as one of their leisure activities.

 

Prior to embarking on the ride, the Plaintiff and her partner signed an indemnity clause indemnifying the Defendant from any liability arising out of any damage or injuries sustained in the course of horse riding.

 

Shortly into the ride the Plaintiff’s horse momentarily lost its footing, thereby unseating the Plaintiff. The Plaintiff sustained serious injuries as a result of the horse dragging her over the rugged terrain and instituted a claim for damages against the Defendant. The High Court erroneously, without even considering the indemnity form signed, found in favour of the Plaintiff, on the grounds that the horse acted contrary to its nature and awarded damages in terms of the actio de pauperie.

 

This decision was reversed on appeal finding that Walker contracted out of any liability which he might have incurred on grounds that Redman signed an indemnity, which operated as a complete defence in favour of Walker. The learned judge commented on the indemnity form stating that the language clearly covered all liability resulting from, or caused by, the activity of riding a horse, whether or not the injury is caused by a horse’s acting out of character.

 

The reasoning behind the judgment on appeal was 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 are thus risk laden, and yet the owner faces strict liability should a horse act contrary to its nature. The very purpose of the indemnity is thus to protect the owner from liability in such a risky situation.

 

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delport ward & pienaar

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