Litigation attorneys very often deal with claims for damage caused by animals and pets, including attacks by dogs. Victims may be able to claim compensation by means of litigation and more specifically action proceedings.
Damages caused by animals are usually based on either the Actio de Pastu, Actio de Pauperie, or the Legis Aquiliae.
The Actio de Pastu is available to the owner of land who suffered damages as the result of the grazing and the concomitant trampling of his crop and very seldom applies to injuries caused by pets such as dogs.
The Action de Pauperie makes an owner of a domesticated animal liable for damages caused by the animal without the owner’s fault or any negligence on his part. In succeeding with a claim for damages the Plaintiff must prove that (1) that ownership of the animal vested in the defendant at the time of the infliction of the injuries, (2) The animal was acting contrary to the nature of domesticated animals generally and (3) the conduct of the animal caused the plaintiff damage, which must relate to property (eg another dog) or person. Important to note is that the liability of the owner of the domesticated animal is independent of any fault on his part. As an alternative when struggling to prove ownership of the animal or that the animal acted contrary to its nature the plaintiff may institute the action legis aquiliae, which is based on the negligence of a person.
When Can I Claim Damages?
Damages may be claimed in respect of real damages to any property, medical treatment, and even for emotional shock suffered by onlookers as per the judgment in FOURIE v NARANJO AND ANOTHER 2008 (1) SA 192 ©.
In order to evade liability for damages, the defendant will have to prove that (1) the animal was provoked by the plaintiff or another person or animal or (2) a third party in charge or control over the animal negligently failed to prevent the animal from injuring the victim or (3) the unlawful presence of the plaintiff on the premises at the time of the incident or (4) the plaintiff knew of the risk of sustaining injury from the animal and voluntarily accepted that risk.( Volenti non fit inuira).
The nature and scope of the second defense do however necessitate further exploration. The court previously required a third party to have performed a positive action in moving the animal to cause the damage. This principle was revisited in the matter of LEVER v PURDY 1993 (3) SA 17 (A).
In the present case, the respondent had been bitten by a dog belonging to the appellant. The incident occurred whilst the appellant was temporarily overseas and one C was left in charge of the appellant’s home and his dog. C had summoned the respondent to the house and had advised him that there was a vicious dog on the premises. Respondent had requested C to lock the dog away before his arrival at the house, which they agreed would be between 6.30 and 7 pm that evening. However, when the respondent arrived at the house and preceded onto the premises, the dog, which had not been locked away, bit him.
Several defenses were raised by Lever in his plea but the defense relevant for purposes of this appeal was that Purdy was bitten by the dog ‘as a result of the second defendant’s negligence.
The learned judge revisited Roman and Roman-Dutch authorities and distinguished between two categories of the so-called “third persons.”
The first category comprises those instances in which a third party, as a mere outsider, through his culpable conduct caused the animal to inflict the injury upon the victim, for example where the animal was provoked by him (D 9.1.1.6); or where he hit or wounded the animal (D 9.1.1.7). This first category of texts may be supplemented by texts dealing with Aquilian liability of such a third party, for example where the third party scared a horse which a slave was riding, with the result that the slave was thrown into a river and died (D 9.2.9.3); and where someone annoyed a dog and accordingly caused it to bite the victim (D 9.2.11.5). The distinguishing feature of this category is that the culpable conduct of the third party consisted of some positive act such as provoking, striking, wounding, scarring, or annoying the animal. The first category provided a defense for the owner in the past.
The second category relates to those instances in which a third party in charge or control of the animal by his negligent conduct failed to prevent the animal from injuring the victim. The relevant texts are the following, “Take the case of a dog which, while being taken out on a lead by someone, breaks loose on account of its wildness and does some harm to someone else: If it could have been better restrained by someone else or if it should never have been taken to that particular place, this action will not lie and the person who had the dog on the lead will be liable.”
What is the causative position concerning the negligent conduct of the third party in the second category of texts?
Here, the third party happens to be in charge or control of the animal. Take the instance of a muleteer who is in control of his team of mules which he, on account of his inexperience or weakness, cannot restrain from running away (impetus) and injuring the victim. His failure in exercising proper, ie reasonable, control over the mules provided them with the opportunity to continue their flight and run over the victim. He is guilty of negligent conduct which resulted in the injury to the victim. He will incur Aquilian liability whereas the owner of the mules will be exonerated from pauperi in liability. The muleteer did not by any positive act cause the mules to run away. The question of causality regarding the conduct of the controller or handler of a dog is determined in the same manner by the application of the same legal principles. By his negligent conduct, he fails to exercise proper, ie reasonable, control over the dog in his care. He accordingly provides the dog with the opportunity to injure the victim. As a result of his negligent conduct, he fails to prevent the dog from biting the victim. He did not by any positive act cause the dog to bite. His negligent conduct likewise renders him liable under the lex Aquilia, whereas the owner of the dog will be exonerated from pauperien liability.
The learned judge, in passing, visited the scenario where a guest would leave a gate open, causing the dog to escape and subsequently injuring another, and expressed his doubt whether these principles will also apply in such circumstances. After consideration of various authorities, no case with similar facts could be found. We are of the opinion that such a person, albeit not on the instruction of the owner, took control over the animal once he took control over the gate. This is nothing more than an opinion, which cannot be substantiated at the hand of any authorities.
You should also note that every person must mitigate (limit) his damages as far as it is possible. An interesting question that now arises is, whether veterinary costs in the amount of R20,000-00 are justified to be spent on a dog with a fair value of R500.00. Animal lovers will tend to argue that the value of any animal exceeds its real monetary value by far. Legally speaking a pet remains a simple asset with a monetary value. Only time will tell whether the courts will acknowledge the emotional value of pets in the future.
