The possibility of liability claims for dog owners (& their insurers)
Dogs are regarded as man’s best friend and have become an integral part of many people’s lives.
Actio de pauperie
Actio de pauperie means that there may be liability without fault. This is also known as strict liability, which denotes a form of liability without fault on the part of the wrongdoer. An example of this form of strict liability pertains to damage caused by a domesticated animal.
Under the actio de pauperie, a victim of a dog attack can claim damages from the owner of the dog without having to prove fault. This exact issue had to be determined in a recent Eastern Cape High Court matter of Cloete v Van Meyeren with case number 732/2017.
In this matter, Mr Cloete claimed damages in the amount of R2, 4 million from Mr van Meyeren, the owner of the dogs, under the actio de pauperie due to losing his arm. At the time of the dog attack, Mr Cloete was walking down the street in which Mr van Meyeren’s property is located. As Mr Cloete passed Mr Meyeren’s home, he heard the sounds of dogs running behind him where after he was viciously attacked and pulled to the ground by Mr van Meyeren’s three dogs. Mr Cloete had done nothing to provoke the attack and was lawfully present in the public street where the attack occurred.
Defence raised by Mr van Meyeren
Mr van Meyeren denied liability and negligence on any basis and stated that his dogs were kept behind locked gates, the dogs’ access to the road being impossible under normal circumstances and that an intruder had broken the locks of the gates and left the gates open and therefore no fault could be attributed to him.
In light of the defence raised by My van Meyeren, the court had to revisit the history of the actio de pauperie with specific reference to one of the recognised defences available to dog owners.
Extension of the defence
It was further argued on behalf of Mr van Meyeren that the recognised defence should be extended to include negligence of an intruder, who did not exercise control over the domesticated animal, but merely left the gates open. Support for this argument can be found in the dictum of Le Roux v Fick (1879) 9 Buch 29 where it was stated that “…an actio de pauperie lay in all cases of damages caused by animals when the damages brought about through the fault of the party using the animal or of some third party.” The possibility of extending the recognised defence was also mentioned obiter in the Lever v Purdy 1993 (3) SA 17 (AD) at 26 case.
The court in the Cloete matter acknowledged that the proposed extension finds some, albeit weak, support in Le Roux v Fick, the court held that an extension of the pauperian defence, to include a defence founded on a third party’s negligence who was not in control of the dogs, is not justified by logic nor by the existing rules in respect of pauperian liability.
The issue of liability and quantum was separated in the Cloete matter and the court held Mr van Meyeren liable for such loss as would be proved or agreed upon at a later stage. Mr van Meyeren was ordered to pay the costs. The court further held that there were no facts present in the matter, either pleaded or proven, that brought into operation the concept of culpable conduct of a third party (such as the intruder) causing a domesticated animal to act contra naturam sui generis and thus absolving the owner of the pauperian liability. Furthermore, the intruder relied on was not in charge or in control of the dogs and thereafter failed by negligent conduct to prevent the dogs from injuring Mr Cloete.
An application for leave to appeal was heard on 21 February 2019, however, leave to appeal was denied.
Dog owners (and by extension their insurers) must therefore be very vigilant of their dogs and ensure that their dogs do not bite or attack any individuals in order to prevent a claim based on the actio de pauperie being instituted against them (and possibly by extension their insurers) as a victim can claim damages from the dog owner without having to prove fault (or negligence) of the dog owner.
Disclaimer – this article is for information purposes only and cannot be construed as legal advice
Author: Tarryn Howard
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