Pauperien liability: Strict liability reigns supreme again

December 1st, 2020
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Van Meyeren v Cloete [2020] 4 All SA 358 (SCA)

It is a trite principle of South African law that the owner of a domesticated animal is liable for the damage caused by their animal. We also know the owner can escape liability in appropriate circumstances. In the case of Van Meyeren, the Supreme Court of Appeal (SCA) was called on to decide whether the negligence of the third party not in control of the animal can exonerate the owner from liability.

Facts of the case

While walking on the street passing Mr van Meyeren’s (the appellant’s) home, Mr Cloete (the respondent), was suddenly and viciously attacked by the appellant’s dogs. The attack was so bad that the respondent’s left arm had to be amputated. It was not clear how the dogs managed to escape through the allegedly locked gate thus enabling them to cause harm to the respondent. The appellant alleged that there must have been an intruder who interfered with the locks, which enabled the dogs to escape his home and to cause harm to the respondent.

The actio de pauperie

In the unanimous judgment, Wallis JA laid the foundation with a proper characterisation of the actio de pauperie in South African law. He held that the essence of this principle is that ‘the owner of a dog that attacks a person who was lawfully at the place where he was injured, and who neither provoked the attack nor by his negligence contributed to his own injury, is liable, as owner, to make good the resulting damage’.

The liability of the owner is based on ownership alone and fault in his part is not a prerequisite, and strict liability attaches to him by virtue of his ownership thereof. In the premises, the court provided two reasons to support its characterisation of the principle:

  • Firstly, in instances where both the owner of the dog and the victim are not at fault, it is only fair that the owner makes good the damage because, by the virtue of his ownership, he is the source of the risk.
  • Secondly, adoption of fault as a requirement for owner’s liability would amount to the adoption of scienter test; this is English common law principle that provided that the strict liability for the animal’s damages follows the owner if he knew of the animal’s proclivity to engage in the conduct that caused damage. However, as the court held, such a qualification does not and has never been part of our law.

Be that as it may, the owner of the animal can still escape liability in appropriate circumstances. There are two defences that are intrinsic to the actio de pauperie, namely:

  • Firstly, where the injured party was in a place where they were not entitled to be. The obvious example would be that of a housebreaker bitten by a watchdog.
  • Secondly, where the injured party or a third party provoked the attack by provoking the animal and the animal acted as any animal would in the circumstance.

The onus of establishing the defence rests on the owner of the animal. It is important to note that in both defences, the owner escapes liability on the strength of someone else’s behaviour directly causing the animal to inflict harm, in instances where he as the owner has no control.

The Lever defence

In the case of Lever v Purdy 1993 (3) SA 17 (A), Mr Lever left his vicious dog in the custody of a Mr Cohen, while he was on an overseas trip. Mr Cohen invited Mr Purdy to help with a television satellite. The latter asked the former to lock the dog away before he arrived, and this was not done. On his arrival, Mr Purdy was attacked and badly injured by the dog.

On Mr Lever’s return from the overseas trip, Mr Purdy sued him for damages. The court had to look at whether Mr Lever could escape liability on the ground of Mr Cohen’s negligence, even though he had not actively provoked the dog to attack Mr Purdy. The court held that Mr Lever could escape liability in the circumstances. Therefore, an additional exception to escape pauperien liability was approved in circumstances where the negligence of a third party in control of the animal resulted in damage.

This is precisely the defence that the appellant tried to rely on in the present case. Firstly, the appellant tried to argue that control of the animal by the third party is not a prerequisite for this defence. The court held that this submission misconstrued the purpose of pauperien liability because it does away with the essential need of a direct link between the third party’s conduct and the behaviour of the animal that caused the harm in order for the owner to be exonerated from liability.

The court held that the negligent action of a third party, as was the case here, of leaving the gate open, thus enabling the dog to escape and cause damage, is an extrinsic factor that has nothing to do with the dog’s behaviour and is not directly linked to it. It was further held that such negligence did not prompt the dog’s vicious nature. At best it created an opportunity for the vicious nature of the animal to manifest itself but it is not intrinsically linked to it.

In the premises, the court held that the assumed intruder had no responsibility towards the appellant, and he did nothing in relation to the dogs except to create an opportunity for them to escape. Therefore, it cannot be validly argued that the responsibility for the dogs passed from the appellant to the intruder in the same way as it had passed from Mr Lever to Mr Cohen, which in the circumstances would have been a prerequisite for the appellant to escape liability.

The court went on to say that the appellant did not dispute that the requirements of pauperien liability had been satisfied, but he sought to escape liability by emphasising the basis of lack of fault in his part. Once again this does not accord with pauperien liability, which attaches strict liability to the owner for the conduct of the animal. Fault of the owner is not a prerequisite nor is it a defence to pauperien liability.

Conclusion

This case has once again reemphasised the old age principle that the owner of the dog is strictly liable for the behaviour of their dog. The court will only let them escape such liability in the clearest cases where someone else’s culpable behaviour directly causes the dog to inflict harm.

Mdumseni Gambushe LLB (UKZN) is a candidate legal practitioner at Venns Attorneys in Pietermaritzburg.

This article was first published in De Rebus in 2020 (Dec) DR 29.

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