April 12, 2019
BlissDangerous” (Internet meme)
Our law will generally hold you liable for damages only if someone else can prove that you caused them loss/damage/injury through your “fault” (intent or negligence). That seems fair and logical – if it’s your fault, you pay.
If however the loss was caused by your animal/s, you are in a much more dangerous position – you can be sued on a “no fault” or “strict liability” basis. And that’s a sobering prospect. It means that bad behaviour by Maxie the Mongrel, Skollie the Cat, Daisy the Cow, or even (per an old 1926 case) your “domesticated” swarm of bees, could leave you with a bill for millions without your being in any way careless or at fault.
Ignorance of that risk is very definitely dangerous rather than bliss.
A recent High Court case illustrates.
R2.3m claimed by a dog attack victim
- The claimant was walking down a public street, minding his own business and with every right to be where he was, when three large “Pitbull type” dogs attacked him, viciously and without provocation.
- He was very seriously bitten and ultimately had his left arm amputated at the shoulder. He escaped more serious injury or even death only through the courage of a passer-by who fought the dogs off (and was himself attacked for his trouble).
- The victim claimed R2,341m in damages from the dogs’ owner.
- The dogs had no history of biting or attacking people and were treated as house dogs. They had the run of the owner’s house and garden/yard, which was walled and fenced off from the street. Access to the street was via a gate which was (said the dogs’ owner) normally kept locked, and was on the day in question double-padlocked.
- An intruder, claimed the owner, had in his and his family’s absence broken the gate open and left it open – giving the dogs access to the street and to their victim.
Liability and the law
- The victim was unable to prove that the dogs’ owner rather than an intruder had left the gate open, so had failed to show that the owner had been negligent in any way.
- But, held the Court, the owner was still accountable on the basis of an old Roman law – the “pauperian action” or actio de pauperie – which makes you strictly liable for the consequences of your domesticated animal’s behaviour. The thinking behind this ancient law incidentally was that “an animal (being devoid of reasoning) is incapable of committing a legal wrong” and there have been suggestions that it be scrapped in our modern law. But as of now it is still very much enforced by our courts, and you remain at risk.
- Pauperian liability is a complicated subject (involving much Latin and learned judicial interpretation of ancient laws) and you will need specific legal advice if you find yourself on either side of a claim. But in a nutshell you are liable only if your domesticated animal (different rules apply to wild animals) acted from “inward excitement or vice” and against its natural behaviour.
- You do also have several defences available to you, such as the victim contributing to his/her loss through their own actions (provoking an attack or trespassing for example) or – the defence raised in this case – where the loss results from the negligence of another person. Again, a complicated subject needing specific legal advice, but out of interest let’s have a look at how the Court in this case dealt with the particular defence raised.
- The defence in question is available if you can prove that a third party had control of the animal but negligently failed to exercise that control properly. The dog owner in this case asked the Court to extend that defence to cover his situation where the intruder had no control over the dogs, but negligently gave them the opportunity to attack the victim.
- The Court refused, holding that the defence only applies where the third party has control of the animal. The dog owner must therefore pay the victim whatever level of damages he can prove. So – bottom line – you are liable even when the fault lies with someone else, and even when you are completely without fault, unless that other person had control of the animal at the time.
First step obviously is to reduce the risks your animals pose to others. Then check that your insurance will cover you if you are sued. Disclaimers of liability need careful wording to afford any hope of protection.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.