Now her guardian has sued the trampoline park owners for
more than US$6 million damages to cover medical and lifetime expenses alleging
the accident was caused by their negligence, an allegation that forms the heart
of the civil suit and which needs the judge to decide on the evidence
presented.
The 17-year-old gymnast was tipped to reach the top
echelons of the sport, having already represented her country with distinction
in regional and international competitions.
Last week the High Court ruled in favour of continuing with
the civil trial, denying the trampoline park owners” bid to quash the lawsuit
by Rebecca”s guardian Mr Ross Conlon seeking over US$6 million in damages.
The Trampoline Park”s lawyer, Advocate Tawanda Zhuwarara,
applied for absolution from the instance at the close of Mr Conlon”s case,
arguing that Mr Conlon”s claim was based on gross negligence by the trampoline
park, but evidence led focused on negligence.
He also said no amendments were made to the claim hence the
court could not grant the greater part of the claim for gross negligence as it
was not pleaded.
Advocate Thabani Mpofu, Mr Conlon’s lawyer, countered
saying Trampoline Park owed a duty of care to patrons as a matter of public
policy. He said breach of duty requires establishing fault, which can be based
on negligence or intention.
He said no distinction was made between negligence and
gross negligence in fault requirement.
In his ruling Justice Paul Siyabona Musithu said absolution
was not applicable in the present case, finding that Mr Conlon had set out a
prima facie case, satisfying aquilian action requirements.
Aquilian action is a legal action for damages due to
negligence or intent and requires proof of fault, damages and causation.
“In conclusion, it is the court’s view that this is not the
kind of matter that is susceptible of absolution,” he said.
“Once the plaintiff sets out a prima facie case which
substantially satisfies the requirements of the aquilian action, then the court
must be slow in closing the door in the face of the plaintiff based on
absolution,” he said.
Courts should be cautious in dismissing claims based on
absolution, the judge said.
“The courts have accepted that claims of this nature are
prone to innumerable imponderables which require the court to assume so many
roles for it to meticulously deliver justice to the parties,” he said.
Justice Musithu said the court might make arbitrary,
globular awards when mathematical assessment is impossible.
“It is for the foregoing reasons that the court determines
that there is no merit in the application for absolution from the instance at
the close of the plaintiff’s case.
The application must therefore be dismissed,” ruled the
judge ordering the civil trial to resume on dates to be agreed upon by the
parties in consultation with the Registrar of the High Court.
The civil trial will proceed to determine liability and
damages and Mr Conlon must provide evidence to support claims. At the end of
the trial the court will assess damages based on fairness and reasonableness.
Rebecca, who is affectionately known as “Becky” in local
gymnastics circles was adopted by her parents at just six weeks old while
weighing only 1,8kg but beat all odds.
She became a member of the Zimbabwe national gymnastics
team at the age of seven before becoming a national champion in her age group
two years later.
Her biggest breakthrough came at the age of 10 when she won
gold in KwaZulu Natal before being scouted to join the South Africa gymnastics
team under their Olympic coach.
At 11 she became the top gymnast in Africa for her age and
was then selected to train in Europe in preparation for the Olympics.
She later returned home not wanting to leave her family and
chose to stay in Zimbabwe. Herald
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