Small Claims Court OF NOVA SCOTIA
Citation: Sullivan v. MacLean, 2023 NSSM 66
Date: 20231010
Docket: 523677
Registry: Halifax
Between:
Allyn Meredith Sullivan
Claimant
v.
James Freeman MacLean and J. MacLean Hauling
Defendants
Adjudicator: |
Darrel Pink |
Heard: |
October 3, 2023, at Halifax, Nova Scotia |
Counsel: |
Claimant – Self-represented Defendant – Joselyn Campbell |
Decision: |
October 10, 2023 |
By the Court:
[1] Secret is a show horse. On July 31, 2022, Secret’s leg was badly injured while she was being transported in a horse trailer driven by the personal Defendant and owned by the corporate Defendant. The Claimant asserts that the Defendant must be responsible for hurt caused to Secret and the resulting veterinary and related expenses of $4125.92.
[2] On July 31, 2022, the Claimant and others were moving four horses from a Restless Pine Farm in Hammonds Plains, Nova Scotia to the show jumping ring of the Halifax Lancers on Bell Road in Halifax. She had never used the hauling services of the Defendant but retained them for this trip.
[3] The arrangement was oral. The Claimant agreed to pay the Defendant his usual charge for transporting the horses. There was no written contract.
[4] The Defendant arrived early in the morning. The four horses were loaded on the Defendant’s horse trailer by their owners or handlers. The Defendant’s practice is to have this done by owners as opposed to himself, as they are familiar with the horse’s disposition and the horse’s anxiety will be minimized. A lead is tied to the trailer to minimize movement.
[5] Once loaded a gate or fence is erected next to the horse to act as a partition. The horse is standing during transport. When the four horse were loaded the trailer’s gate was closed.
[6] The Claimant and the Defendant described the loading process as normal and uneventful.
[7] Mr. MacLean, accompanied by his stepson, hauled the trailer to its destination, a trip of about 30 minutes. En route he said he heard a noise from the trailer when he was on Quinpool Road. Given the proximity of their destination he chose not to stop to investigate the cause of the noise, but to carry on to the Lancers property.
[8] When Secret was unloaded by the Claimant, she immediately saw a large gash on Secret’s left hind leg. Blood was ‘everywhere’. The depth of the gash revealed the horse’s bone. First aid was administered, and a pressure bandage was applied immediately.
[9] The horse’s veterinarian was called. The horse was sedated, and the Defendant immediately transported her back to her farm, where she was attended by the vet and treatment commenced.
[10] The wound was too deep to suture. There was a serious risk of infection that could have cost Secret her life. Medical treatment was provided and Secret was confined to stall rest for two months. Her veterinarian made regular visits. Over that period Secret recovered.
[11] The Claimant seeks recovery of the expenses associated with Secret’s treatment.
[12] The Defendant outlines facts regarding the transportation substantially the same as those related by the Claimant.
[13] His business is horse transportation. He has been doing so for many years. The trailer used was aluminum. He confirmed there are no sharp edges in the trailer or on the fence separating the horses.
[14] The sound he heard while in transit appeared to be a horse kicking, but he was not certain. Nor did he explain why a horse would kick while in transit, unless she was spooked. He knew of nothing that might have caused that to occur.
[15] A claimant has the onus of presenting evidence that proves on the balance of probability that damages result from a breach of a duty owed to her, as Secret’s owner, by the Defendant. The Claimant must show that the Defendant was negligent, or breached his duty of care, and that negligence caused harm to Secret. If negligence is proven the damages are the losses that result from it, the cost of veterinary care.
[16] It is clear that Secret was healthy and ready for a show jumping event when she was loaded onto the Defendant’s trailer. It is also clear while being transported something caused a serious cut in her hind leg. The issue here is did the Defendants fail to do something which breached their duty of care to the Claimant and her horse?
[17] There was no evidence of the what occurred in the trailer that resulted in the cut. No one was present to see the injury occur. Secret’s veterinarian did not testify, but the Claimant indicated she believed the Vet could not assert with certainty what occurred.
[18] Without evidence of what occurred toe Claimant’s assert the doctrine of res ipsa loquitor – ‘the thing speaks for itself’ ought to be applied.
[19] This maxim used to provide that absent direct evidence, breach of the standard of care could be inferred where there was no other reasonable explanation for the accident. Procedural rules would then come into play. The Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator), [1998] 1 SCR 424 has now eliminated its application. The trier of fact is to weigh the circumstantial and direct evidence (if any) of negligence, decide whether a prima facie case has been established on a balance of probabilities by the Claimant, and then determine whether the Defendant has produced evidence negating that of the Claimant.
[20] The court is called upon, at the close of all the evidence, to decide whether the Claimant has met her burden of proof on the balance of probabilities standard.
[21] Though the injury to Secret was serious and regrettable, the evidence, when viewed in its entirety, does not disclose that the Defendant breached the duty of care owed when transporting horse. He undertook the task and used the requisite standard of care expected of a prudent horse hauler.
[22] No one will ever know what caused Secret to be injured. What is known is that her hurt was not the result of any fault of the Defendant.
[23] The claim is dismissed.
Darrel Pink, Small Claims Court Adjudicator