There have lately been a lot of news articles regarding children, elderly people and the public in general that has been mauled by vicious dogs.
Homeowners should therefore be aware that they can attract liability and if you own a dog that protect your premises, always make sure that your dog is inside your premises and that you have the necessary liability insurance in place.
If someone is bitten by your dog, that person can institute a liability claim against you as the owner of the dog under the actio de pauperie for harm caused by domesticated animals.
Under this actio, a victim of a dog bite can claim damages from a dog owner without having to prove fault.
In a recent Eastern Cape High Court matter of Cloete v Van Meyeren, the Plaintiff instituted a claim for damages against a dog owner under the actio de pauperie.
The Plaintiff was attacked when three dogs escaped from the owner’s property, after a third party intruder had opened the locked gate.
The dog owner denied liability as he has not opened the locked gate, but the Plaintiff did not do anything to provoke the dogs and was lawfully present in the public road when the attack took place. The Plaintiff lost his left arm and instituted a claim of R2.4 million. The Court found in favour of the Plaintiff on the separated issue of liability in the judgment.
The above defence of actio de pauperie was confirmed in the judgment of Lever v Purdy 1993 (3) SA 17 (AD) where a dog owner was absolved of liability on the basis that the control of the animal had been delegated to a third party and that the third party failed to adopt reasonable precautionary measurements to prevent the animal from injuring the victim when he could and should have done so.
In order to succeed with the recognised defence, a dog owner would have to prove that he delegated control of the animal and that the controller was negligent in exercising control over the dog.
Should this defence succeed, the victim may have a claim in delict against the controller under the actio legis aquilae.
In the case on hand, namely the Cloete case, it was argued on behalf of the dog owner that the recognised defence should be extended to include negligence of an intruder, who did not exercise control over the dogs, but merely left the gate open. The argument finds support in the dictum of Le Roux v Fick (1879) 9 Buch 29 where it was said that, “… an actio de pauperie lay in all cases of damage caused by animals when the damage was brought about through the fault of the party issuing the animal or some third party.”
The Judge acknowledged that in the Cloete case, the extensive finds some support in Le Roux v Fick, the Court ultimately held that the extension of the pauperian defence to include a defence founded on a third party’s negligence who was not in control of the dogs is not justified by logic nor by the existing rules in respect of pauperian liability.
The above is an extract of an article that appeared on Bizcommunity.com and was written by Willie van Wyk, a Director and Marissa van der Westhuizen, a candidate attorney at Cliffe Dekker Hofmeyr.
