By Kristen Wagner

Incidences of dog attacks and dog bite injuries are on the rise in South Africa (SA). In the months of August and September, four separate dog attack incidents were reported in national news, in terms of which, these fatal dog attacks left two minor children dead. In instances such as these, it is important for both the victim(s) and for domestic animal owner(s) to understand the principles of liability without fault and the legally recognisable defences available.

Understanding the principle of ‘strict liability’

In terms of the law of delict in SA, a wrongdoer who caused damage can typically only be held delictually liable if there was fault (either in the form of intent or negligence) on his or her part (Neethling & Potgieter Neethling – Potgieter – Visser Law of Delict 6ed (Durban: LexisNexis 2010) at 355). Over time, instances of liability without fault emerged and were subsequently recognised in terms of common law, legislation and in terms of judgments handed down by South African courts.

Liability without fault, also known as ‘strict liability’ denotes a form of liability without fault on the part of the wrongdoer. One such solidified instance of strict liability in South African law pertaining to damage caused by domestic animals is that of the actio de pauperie. The actio de pauperie has entrenched a form of strict liability as, although the domestic animal is the direct cause of the damage, the domestic animal owner bears sole compensatory responsibility for any such damage.

Requirements under the actio de pauperie and relevant defences

The primarily noxal character of the actio de pauperie can be traced back to the Law of the Twelve Tables in terms of which it was first recognised that a prejudiced individual may claim delictual damages from the owner of a domestic animal, where the domestic animal caused damage. Initially restricted to cases concerning cattle (pecudes), the actio was extended to cover instances concerning domestic animals such as dogs (Milena Polojac ‘Actio de pauperie: Anthropomorphism and rationalism’ (2012) 18(2) Fundamania 119 at 143). Despite academic criticism, the actio de pauperie remains firmly entrenched in South African law (see O’Callaghan NO v Chaplin 1927 AD 310).

As delineated in Fourie v Naranjo and Another 2008 (1) SA 192 (C) there are said to be four requirements for a claim under the actio de pauperie to be successful, namely:

• The wrongdoer/defendant must be the owner of the domestic animal when the damage was inflicted. Merely exercising control over the animal will not ordinarily attract liability under the actio de pauperie. If the defendant is able to prove that the animal was under the control of a third party at the time of the incident and the third party negligently failed to prevent the attack, this requirement will not be satisfied and as such this may serve as a valid defence to the actio de pauperie (Neethling & Potgieter (op cit) at 358).
• The animal must be a domesticated animal. A distinction must be maintained between wild animals, which are presumed to be dangerous or ferocious by nature (ferae naturae) and domestic animals which are regarded as being tame in nature. It is important, however, not to afford too narrow an interpretation of the term ‘domestic animal’ as the actio may still be applicable in cases concerning cattle, horses, bees and even (determinable on a case-by-case basis) domesticated meerkats (Klem v Boshoff 1931 CPD 188).
• The animal must have acted contrary to its nature (contra naturam sui generis) when inflicting the damage. This requirement entails an objective stance being adopted in order to determine whether the animal acted contrary to the behaviour that may reasonably be expected of an animal in the applicable genus (Loriza Brahman en ’n Ander v Dippenaar 2002 (2) SA 477 (SCA) at 485). This requirement is qualified further, however, as the animal must have caused the damage spontaneously and as a result of inward vice/excitement (sponte feritate commota). This requirement will not be satisfied if the defendant can prove that the animal reacted to external stimuli and not due to internal vice. Defences that may be raised by the defendant pertaining to this requirement and which exclude liability include vis maior (an unforeseeable intervening force of nature), provocation or culpable conduct on the part of the prejudiced person/claimant, provocation or culpable conduct on the part of a third party or provocation by another animal (Neethling & Potgieter (op cit) at 358). The onus is placed on the defendant to prove the existence of a valid defence. In addition to the defences listed, the action may also be dismissed if the defendant can successfully prove that the prejudiced party voluntarily assumed risk (the defence of volenti non fit iniuria). The defence of volenti non fit iniuria considers the plaintiff’s subjective state of mind in order to determine whether the danger, which materialised was apparent to and appreciated by the claimant (Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A)). Assenting to risk may be expressed verbally or may be implicit in the conscious conduct of the claimant. In addition, the defendant may be absolved from liability if he or she is able to adduce evidence of the terms of an existing indemnity between himself or herself and the claimant in terms of which the claimant indemnified the defendant against any damage that may arise as a result of the behaviour of the animal. In circumstances where the defendant adduces evidence of such indemnity, the Consumer Protection Act 68 of 2008 will have to be consulted to ensure that the strict requirements pertaining to disclaimers have been adhered to.
• The victim or prejudiced person or his or her property must have been lawfully present at the location where the damage was inflicted. Courts’ interpretation of this requirement differ as some judgments make reference to the claimant having a ‘lawful purpose’ while others require a ‘legal right’. There appears to be a preference for the ‘legal right’ approach as it may be difficult to ascertain the ‘lawful purpose’ of property. The defendant may be absolved of liability in this instance if he or she can prove that the claimant had no legal right to be on the property as he or she is, for example, an intruder or a thief.

Both special damages (which may include, for example, damage to property and future medical expenses), as well as general damages (which may include pain and suffering, loss of amenities of life, disability and disfigurement) may be claimed in terms of the actio de pauperie.

In addition to seeking relief in terms of the actio de pauperie, the plaintiff may plead in the alternative under the lex Aquilia based on the negligence of the defendant. In order for the plaintiff to prove negligence on the part of the defendant, the plaintiff will need to prove the requirements set out in the ‘reasonable person test’ as articulated in Kruger v Coetzee 1966 (2) SA 428 (A), namely:

• Whether a diligens paterfamilias in the position of the defendant would –

– foresee the possibility of his or her conduct causing injury to another or to the property of another and leading to subsequent patrimonial loss; and

– take reasonable steps to guard against this occurrence.

• However, the defendant failed to take such steps.

Summation

Considering that the number of dog bite cases reported has increased rapidly in 2016, it is pertinent for the potential victim(s) and dog owner(s) to have an in-depth understanding of the law applicable to dog bite cases. In addition to the defences set out above, it may also be advantageous for dog owners to consider taking out personal liability insurance to cover any unfortunate circumstances such as these.

Kristen Wagner BA Law and Psychology (Rhodes) LLB (UJ) (cum laude) is a candidate attorney at Clyde & Co LLP in Johannesburg.

This article was first published in De Rebus in 2017 (Jan/Feb) DR 23.