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2022 MarsdenLR 522
HIGH COURT MALAYA IPOH
ISKANDAR POLO CLUB IPOH – Appellant
Versus
NOR YATIMAH OSMAN – Respondent
[Civil Suit No: AA-11B-5-05-2020]
The Magistrates' Court lacks jurisdiction to make declaratory orders, and exclusion clauses protecting club liability in equine sports are valid and enforceable under contract law.
Headnote:(A) Subordinate Courts Act 1948 (Revised 1972) – Jurisdiction of Magistrates' Courts to grant declaratory orders – The High Court found that the Magistrates' Court exceeded its jurisdiction by declaring cl 22 and the Certificate of Exclusion of Liability as a nullity. – It was concluded that the reliance on the exclusion clauses was permissible and not against public policy. (Paras 6, 17, 43)
(B) Vicarious Liability – The respondent failed to prove that the alleged employee, D1, was an agent or servant of the appellant to establish vicarious liability. (Paras 45, 54)
(C) Volenti Non Fit Injuria – The court found the respondent had voluntarily assumed the risk of injury by riding in the stables contrary to club rules. (Paras 59)
Facts of the case: The respondent, an ordinary member of a polo club, sued the club after suffering injuries from a fall caused by the horse being startled by an object on the premises. (Paras 3, 4, 8)
Findings of Court: The Magistrates' Court's order declaring the club's exclusion clauses as null was overturned, and the appellant upheld its right to rely on these clauses. (Paras 6, 43)
Issues: Whether the Magistrates' Court had the jurisdiction to make a declaratory order and applicability of exclusion clauses. (Paras 1, 6)
Ratio Decidendi: The High Court reasoned that exclusion clauses are valid unless they contravene public policy, and determined that the respondent had accepted the risk associated with horse riding. (Paras 30, 43)
Result: Appeal allowed; Magistrates' Court decision set aside.
JUDGMENT
[1] Query: Whether the Magistrates' Court has the power to grant declarations when the Subordinate Courts Act 1948 (Revised 1972) expressly omits it but the Rules of 2012 allows it.
Introduction
[2] The appellant is a club formed with the principal object of inter alia promoting, organising and encouraging polo and equine sports and the respondent is an ordinary member of this club.
[3] Arising from a fall from the horse she was riding, the respondent sued the appellant for damages for the injuries suffered by her.
[4] The appellant relied on cl 22 of its Constitution and a Certificate of Exclusion of Liability where the respondent had agreed that the appellant shall not be liable whilst the respondent is on its premises whether riding or not.
[5] After a trial, the Magistrates' Court made an Order that the said cl 22 and Certificate of Exclusion of Liability is a nullity, found the appellant to be vicariously liable for negligence and awarded damages to the respondent with costs.
[6] The appellant appealed to the High Court which found inter alia that the Magistrates' Court has no power to declare cl 22 of the appellant's Constitution and the Certificate of Exclusion of Liability to be a nullity and the Order of the learned Magistrate was set aside with costs to the appellant.
[7] The respondent did not appeal against the decision of the High Court but upon request of learned counsel for the appellant, these grounds are prepared to set out the reasons for the decision made.
Background Facts
[8] After riding the horse named Annabelle ("Annabelle") in the morning of 20 October 2018 and enroute to the stables at about 9:30 AM, the horse was startled and lunged to the side causing the respondent to fall and suffered injuries.
[9] The respondent sued two parties; one unidentified man who is named as the 1st defendant by the name of John Doe ("D1") and who is said to be an agent, servant or employee who works at the premises of the appellant, with the appellant being the second defendant.
[10] The respondent alleged that D1 had pushed a trolley in front of the respondent who was on Annabelle startling the horse and causing it to jump to the side resulting in the respondent falling down and suffering personal injuries.
[11] The respondent asserted that the appellant being the owner of the stables owes a duty of care to its members including the respondent and the appellant had failed to ensure that that its agents, servants or employees are at all times sensitive to the surrounding environment.
[12] The appellant denied that D1 was its employee and given the unpredictability of the nature of a horse, it asserted it should not be liable especially when the respondent, as a member of the appellant is bound by both its Constitution, namely cl 22 thereof, and the Certificate of Exclusion of Liability dated 5 January 2014 executed by the respondent.
[13] After a trial at the Magistrates' Court, on 13 May 2020, the claim by the respondent was allowed and the learned Magistrate ordered D1 and the appellant to jointly and severally pay the respondent a sum of RM20,279.50 as special damages comprising RM2,279.50 for specialist medical care or charges, RM10,000.00 for future medical care and RM8,000.00 for pain and suffering for a future operation. Interest was ordered to accrue on the special damages at 5% p a from the date of the filing of the Writ (4 March 2019) until the date of judgment and interest thereon at 5% p a on the judgment debt from the date of judgment until full settlement and costs of RM5,212.00.
[14] It was also ordered that cl 22 of the appellant's Constitution and the Certificate of Exclusion of Liability dated 5 January 2014 is a nullity.
Appeal To The High Court
[15] Aggrieved, by notice of appeal dated 19 May 2020 the appellant appealed to the High Court.
[16] Although the appellant had in its Memorandum of Appeal and Supplemental Memorandum of Appeal raised 23 grounds of appeal, they can be summarised as follows
