Hold your horses: Delictual liability flowing from a failure to prevent wandering livestock

May 1st, 2021
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De Pontes v Kegge (ECP) (unreported case no 1773/2018, 26-1-2021) (Ronaasen AJ)

By Zinhle Mokoena and Nokulunga Bulo

In the recent judgment of De Pontes, the court determined whether a livestock owner has a duty of care to a motorist to take reasonable steps to prevent animals under their control from straying onto a public road and whether a livestock owner is liable for the harm caused by an animal as a result of the breach of such duty of care. The court also had to decide whether a person injured as a result of a stray animal can be said to have contributed to the cause of the harm occasioned to the person.

On 25 June 2017 at approximately 6am, the plaintiff in the matter, was travelling from Seaview, Port Elizabeth to the Volkswagen Factory in Uitenhage. He noticed a vehicle approaching from the opposite direction, which, he said, was travelling rather fast. He glanced at the vehicle as it approached him, possibly taking his eyes off the road for a moment, immediately after which, an impact occurred. The plaintiff recalled seeing a creature’s ‘eye’ moments before his vehicle struck a horse belonging to the defendant. As a result of the accident, the plaintiff suffered bodily injuries, but survived, unlike the horse, whose injuries resulted in it being euthanised.

Under cross-examination during the trial of the matter, the plaintiff confirmed that he travelled to Uitenhage frequently for work, using the same road approximately three to four times per week. He knew the road well. The plaintiff confirmed that, at the time of the collision, it was still dark and patches of mist were visible.

The defendant conceded that the horses were kept in a fenced enclosure behind a gate, locked with a carabiner, and that anyone could have opened the gate on the day of the collision. The defendant further admitted that he owed a duty of care to the plaintiff to prevent the horse from escaping onto the public road.

The court held that, when assessing the conduct of the defendant, the issue was whether a reasonable person in the position of the defendant would have taken further precautions to prevent his horses from straying onto the road. The court noted that the enclosure for the defendant’s horses was secured by just one gate, which did not have a lock or an automatic closing mechanism to ensure that it could not be left open. It was probable that the gate was left open by someone who had accessed the property on the day in question. The court remarked that the identity of the person responsible for leaving the gate open was irrelevant. The owner of the horses was responsible for taking reasonable steps to prevent his animals from escaping and straying onto a public road.

The court accordingly found that the defendant’s failure to secure the gate with a lock, amounted to a breach of a duty of care, which the defendant owed to the plaintiff and, as a result, his negligence was causally linked to the collision and the injuries the plaintiff sustained.

In determining whether the plaintiff negligently contributed to the collision, the court considered the driving conditions on the day in question. The collision occurred during the early hours of the morning, and it was still dark and misty. The horse was haplessly in the road at the time of the impact. The court found that the plaintiff’s ability to see clearly would likely have been affected by the mist on the road. The plaintiff accordingly, was in no position to take reasonable steps to prevent the collision from occurring and was not in any way negligent.

The plaintiff had, however, admitted taking his eyes off the road to glance at a vehicle travelling in the opposite direction before suddenly seeing the eye of the horse with which his vehicle collided. The court apparently did not believe that this demonstrated a degree of negligence on the part of the plaintiff, even though a failure to keep a proper lookout when driving a vehicle is an established ground of negligence in our law. Had the court found otherwise, the damages awarded to the plaintiff would have been reduced in proportion to the degree of negligence of both parties.

This judgment should serve as a cautionary tale to livestock owners, who must ensure that their animals do not stray into public spaces where they may cause harm to members of the public. The court re-emphasised the principle that livestock owners owe a duty of care to the public and should take additional precautionary measures to ensure that their animals are kept in a secure space if these additional measures can be achieved easily and inexpensively.

Considering the risk of liability which inherent in owning livestock, livestock owners should ensure that they are covered with the necessary insurance to mitigate any losses that a member of public may suffer as a result of their animals straying into public spaces.

Zinhle Mokoena LLB (UJ) is a legal practitioner at Fairbridges Wertheim Becker Attorneys who was assisted by Nokulunga Bulo in the Johannesburg Office. This article was supervised by legal practitioners Ayanda Nondwana and Matthew van der Want.

This article was first published in De Rebus in 2021 (May) DR 36.

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