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Defences to liability for dog bites

17 September 2020 Donald Dinnie, Norton Rose Fulbright
Donald Dinnie, Norton Rose Fulbright

Donald Dinnie, Norton Rose Fulbright

The owner of a dog that attacks a person who neither provoked the attack nor by their negligence directly caused their own injury is liable, as owner, to make good the resultant damages.

Based on Roman law, for nearly 200 years the law in South Africa has been accepted that owners of animals are strictly liable for harm done by domesticated animals.

People are entitled to walk in the streets without having to fear being attacked by domesticated animals such as dogs and where such attacks occur, they are, in most circumstances, able to look to the owner of the animal for recompense without having to prove negligence or deliberate wrongdoing on the owner’s part.

In 1927, the Appellate Division in O’Callaghan N O v Chaplin rejected the argument that the Roman-Dutch pauperien action (strict liability for harm caused by animals) should be abolished because it was not based on fault.

In 2020 the Supreme Court of Appeal in Van Meyeren v Cloete, has confirmed that the law has not changed.

The pauperien action provides a remedy in cases where, otherwise, persons injured would be remediless. It is right that the owner, not the innocent sufferer, should bear the loss.

The O’Callaghan court identified two circumstances in which the owner would not be liable:

  • Where the injured party was in a place where they were not entitled to be. For example, a housebreaker bitten by a watchdog, or the animal was chained to restrain it and the injured party ventured within reach;
  • The injured party or a third party provoked the attack by goading or provoking the animal.

The Appellate Division in Lever v Purdy recognised a third exemption to the strict liability of the owner of a domestic animal, that is where a third party (who is not the owner) in charge or control of the animal by their negligent conduct failed to prevent the animal from causing harm to the victim.

In the Van Meyeren matter the dog owner sought to escape strict liability where his dogs had escaped from his property and attacked the plaintiff about his business in the public street, by arguing that intruders on the defendant’s property had allowed the dogs to escape. As in all these types of cases, the defendant expressed great surprise that their normally placid animal had attacked and nearly killed the plaintiff, describing the animals as ‘house dogs that had the run of his home and garden and, at night, slept on his son’s bed’. The very fact that the animal acts contrary to its domestic nature is grounds for liability

The court said that on a review of the law there is no clear authority to extend an owner’s exemption for harm caused by the animal, to instances where a third party’s negligence is involved, if the third party does not have custody or control of the animal.

The actions of the victim or a third party can exonerate the owner of an animal from liability only if those actions directly caused the incident in which the victim was harmed in circumstances where the owner could not prevent that harm from occurring. That is why provocation by the victim or the negligent failure of a third party to control an animal in their custody or under their control exonerates an owner.

On the facts of the case any assumed intruder had no responsibility to the defendant in relation to their dogs. They did nothing in relation to the dogs. They allegedly interfered with the locks on the gate enabling the dogs to go into the street and attack the plaintiff. Responsibility for the dogs had not passed from the defendant to the intruder.

Apart from declining to develop the law to extend the defence, the court found that there was no proper basis to accept the defendant’s version of events. The onus of proof lay with the defendant. There is no obligation on a court to accept an improbable explanation of events merely because no other positive explanation is proffered, or the alternative seems to the court, even less probable. In this case there were two possibilities. The one was that the gates to the defendant’s property were insufficiently secured to keep the dogs inside the property. The other was the defendant’s explanation that there must have been an intruder. The fact that the trial judge could not reject the defendant’s evidence does not mean that the trial judge was obliged to accept it. The issue was whether on a balance of probabilities the defendant’s version was the only explanation for the dogs escaping. Unless that conclusion could be reached, the defendant did not discharge the onus of proof and that defence would have failed even if the law had been developed.

 

First published by: Financial Institutions Legal Snapshot

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