“During June 2019, I was walking down the street I live in, when my neighbours' dogs attacked me without any provocation. It would seem that my neighbours' gate was left open which enabled the dogs to attack me. I have suffered injuries which injuries necessitate me to go to the hospital on a weekly basis, excluding other medical treatment. Who is held liable for my damages and what can I claim?”
The Actio de pauperie action makes an owner of a domesticated animal liable for damage caused by that animal, without requiring negligence.
This means that the essentials that a Plaintiff must proof to be successful with his/her claim is as follows:
- The ownership of the animal vested in the defendant at the time of the infliction of the damage i.e. that the dogs belonged to the neighbours.
- That the animal was a domesticated animal.
- That the animal acted contrary to the nature of domesticated animals generally in causing damage to the Plaintiff, for example, for a dog to bite, an ox to gore or a horse to kick would be contrary to the animal’s domesticated nature.
- Causation – in other words, that the conduct of the animal caused the Plaintiff’s damages.
Take note that for example sheep or cattle grazing, an attacked animal defending itself, a horse kicking in pain and a ram jumping over a fence to cover a neighbour’s ewe all act according to their nature and not contrary to it and as such liability cannot be established.
There is further no onus on the Plaintiff to explain the peculiar behavior of the animal.
The liability of the owner of the domesticated animal is independent of any fault on the owner’s part. It is advisable to claim in the alternative in delict. Thus for example should the plaintiff be unable to prove the defendant’s ownership or that the animal acted contra naturam suam, the Plaintiff may nevertheless be able to prove negligence on the part of the defendant in failing to control the animal.
In a recent matter Schmidt v Smith and Another, the court once again confirmed the trite principle that to succeed with your claim against an owner of a dog who attached you, no negligence are to be proven by you.
It was further held that:
“In Green v Naidoo and Another, Satchwell J dealt with foreseeability of harm at paragraphs 37 and 38. She found that in all cases dealing with Aquilian liability for the dog's actions, "our courts have had regard to the history of the animal's interaction with humans, other animals and the world in deciding whether or not the owner of the animal ought to have foreseen the reasonable possibility of harm".
Wessels JA remarked in O'Callaghan's case, that "If a person keeps a dog, he ought in law to be held to know the character of the animal".