To be successful with the actio de pauperie against the owner of a domestic animal that injured or harmed a person, you have to establish that the animal acted ferociously or contrary to its nature and that the conduct of the animal caused the damages suffered by the person.
In April 2011, the appellant’s husband was bitten by the respondent’s dog while on the respondent’s property. He was treated at a hospital for his injuries, but died ten days after his admission as a result of Type 1 Hepatorenal syndrome. He also suffered from a pre-existing medical condition, liver cirrhosis with signs of portal hypertension and ascites as well as multiple oesophageal varices.
In the judgment of Van Deventer v Botha (1523/2014) [2019] ZAFHC 110 the court restated the principles of the actio de pauperie and the appellant had to prove that:
- the ownership of the dog vested in the respondent at the time the damage was inflicted;
- the dog was a domesticated animal;
- the dog acted contrary to the nature of domesticated animals and in particular dogs; and
- the conduct of the dog caused the appellant’s damage.
Strict liability can be defined as liability which does not depend on actual negligence or intent to harm. The court also stated that the liability of the respondent as the owner of the dog, is clearly independent of any fault, including negligence, on his part – an exact example of strict liability.
The actio de pauperie will only be available against the owner of a dog who injured the plaintiff by acting ferociously or contrary to its nature. In the event that the animal did not act contra naturam sui generis – contrary to its nature – the actio de pauperie will not be available against the owner of the animal. The plaintiff will then have to rely on the negligence of the owner or any person in charge of or in control of the domestic animal in terms of the actio legis acquiliae.
The next important question to answer relates to the requirement of causation. Did the conduct of the domestic animal cause the plaintiff’s damage? In the matter of Minister of Police v Skosana 1977 (1) SA 31 (A) the court stated that causation in the law of delict gives rise to two rather distinct problems – factual causation and legal causation. Factual causation relates to the question whether the negligent act or omission caused or materially contributed to the harm that gave rise to the claim. Legal causation requires a sufficient link between the negligent act or omission and the harm suffered.
Defences, that will limit or exclude liability, available to the owner of the domestic animal are an unforeseeable intervening force of nature, provocation on the part of another person or animal, negligence of a third party in charge of or in control of the domestic animal and unlawfulness of the plaintiff’s presence. The defendant has the onus to prove the existence of a valid defence in the specific situation.
The trial judge in Van Deventer v Botha was not persuaded that the dog bite caused the death of the deceased given his pre-existing medical history. The trial court dismissed the plaintiff’s claims on both the actio de pauperie and the alternative claim actio legis acquiliae. On appeal the judge found that the trial court erred in concluding that causation was not proved. The fact that the deceased was ill even before the dog bite, does not constitute a reason to dismiss a claim for lack of proving causation. The dog bite started a chain reaction that eventually resulted in the death of the deceased. The judgement was set aside on appeal and the defendant was liable for payment to the plaintiff of all her proved or agreed damages.
Compiled by: Lize-Mari Viljoen: (B. Com Law, LL.B., Dip. Fin. Plan.); source: https://www.lexisnexis.co.za/
LEXISNEXIS SUMMARY:
Van Deventer v Botha
Case Number: | A211/2018 |
Judgment Date: | 04 / 07 / 2019 |
Country: | South Africa |
Jurisdiction: | High Court |
Division: | Free State, Bloemfontein |
Bench: | JP Daffue, M Mathebula, PJ Loubser JJ |
Keywords:
Personal Injury/ Delict – Actio de pauperie – Liability for damage caused by dog
Mini Summary:
In April 2011, the appellant’s husband was bitten by the respondent’s dog while on the respondent’s property. He was treated at a hospital for his injuries, but died ten days after his admission.
The appellant instituted action against the respondent but her action was dismissed. On appeal, two questions had to be decided. The first was whether the respondent’s dog had acted contrary to the nature of domesticated animals and dogs in particular when it attacked and bit the deceased several times and if so, whether the attack and resultant injuries caused or materially contributed to his death in hospital ten days later.
Heldthat an owner of a domesticated animal, such as the dog in casu is liable for damage caused by the animal without requiring proof of negligence. The appellant had to prove that ownership of the dog vested in the respondent at the time the damage was inflicted; the dog was a domesticated animal; the dog acted contrary to the nature of domesticated animals and in particular dogs and the conduct of the dog caused the appellant’s damage. The last two elements were in contention in this case.
There was no onus on the appellant to show that the dog acted out of perversity or inherent viciousness, but merely that the conduct was foreign to the domesticated nature of the particular class of animals which caused the damage. Appellant was also not required to explain the peculiar behaviour of the dog. The contra naturam sui generis requirement requires some unpredictable action from the domesticated animal. Action that is to be expected as part of the animal’s natural behaviour does not qualify. Provocation, as pleaded by the respondent, serves as a defence to the action. However, the respondent in this case failed to prove provocation by the deceased. The negligence of a third party in charge of or in control of the animal may present a possible defence to the owner of the domesticated animal, but such defence was not pleaded in this matter. A final possible defence in casu was that the deceased’s presence on the smallholding was unlawful. The court found that defence to be without merit.
The fourth element to be proven to be successful with the actio de pauperie is causation. It had to be determined whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim (factual causation). The second requirement is a sufficient link between the negligent act or omission and the harm suffered, or put otherwise, legal causation. The court found that causation in this case had been established.
The trial court erred in finding against appellant the appeal was upheld.