People often underestimate the responsibility that goes with owning a pet. Not only are you responsible for the wellbeing of the animal but you can also be held liable for harm caused by the animal to another person or his/her property.
Damages caused by a domesticated animal can be claimed from the owner of that animal by means of the actio de pauperie in terms of which the complainant would have to prove the following:
• Ownership of the animal vested in you at the time of the infliction of the injuries or cause of the damage;
• The animal was domesticated;
• The animal acted contrary to the nature of a domesticated animal (contra naturam sui generis) in causing the harm;
• That the conduct of the animal caused the complainant’s damage.
The actio de pauperie provides for strict liability implying that it is not necessary for a complainant to prove that there was any fault on your side. In this instance liability is based on mere ownership of the animal and not on negligence of the owner. As was stated in Veiera v Van Rensburg 1953 (3) SA 647 (T) (on page 651):
“The owner of the dog that bites is liable, not because of any negligence on his part, even though he has been careful, and even though he has never known the dog to bite before. His liability is based simply upon his ownership.”
If the animal had therefore acted contrary to its nature (contra naturam sui generis), you can be held liable for the resulting damages. Unfortunately, it appears as though there is no exhaustive test for the question of when does the law consider that a domesticated animal had acted contrary to its nature. It appears to have become common cause that when a household pet bites a person, the animal is regarded as having acted contrary to its nature unless the animal had been provoked. It has been suggested that if an animal acts in a manner that could not have been reasonably expected and without any fault on the part of the owner, the owner would be liable for damages caused by the animal. Suffice it to say that it would depend on the circumstances of each case to establish whether the animal had acted contrary to its nature.
You, as the owner of the animal have the onus to prove that you have a good defence against the claim. These defences would include the following:
• That the animal was provoked by the culpable conduct of the claimant or the conduct of another animal;
• A third party in charge of or in control of the animal negligently failed to prevent the animal from doing harm;
• The unlawful presence of the claimant on your premises. In other words the claimant had no legal right to be there;
• The claimant knew of the risk of sustaining injury from your animal and voluntarily accepted that risk.
• You may be absolved from liability depending on the terms of an existing indemnity between yourself and the claimant.
As an alternative to the actio de pauperie the claimant can also hold the owner of an animal liable by means of the normal delictual action (actio legis Aquiliae) in which case the claim would be based on the owner’s negligence. If the owner could reasonably have expected or anticipated that certain behaviour of his animal could cause damage and he failed to take any precautions to guard against such damage the owner would be liable on the ground of fault.
By: Aneen De Wet (LL.B, LL.M)