Article by: Durban Lawyer - Fawzia Khan
The legal principle in play is the class of action known as “actio de pauperize”, which says that the owner of a domestic animal is strictly liable for the harm that the animal causes to another person when it acts contrary to its nature and from inward excitement or vice. Thus the owner of the animal is liable at the time when the injury or damage was caused. It’s also important to prove that the animal acted contrary to its nature i.e. what is referred to as being contra naturam sui generis, where it must be seen as being an uncharacteristic behaviour of a domesticated animal in a human environment.
The defences to a claim to an actio de pauperize are that the plaintiff provoked the animal and was then bitten or that the plaintiff was not lawfully allowed to be on the property of the owner of the animal when he/she was attacked by the animal. A person confronting an animal in a particular situation must possess the necessary mental and intellectual capacity to be able to understand and avoid the danger of being harmed. A child under the age of 9 is irrebutably presumed to be doli incapax (i.e. lacking mental capacity).
Our courts have not applied the principle of an animal acting contra naturam consistently. In the Grahamstown High Court, a 5-year boy who was attacked by a Bull Mastiff dog, while sitting on a wall bordering the dog owner’s property from another neighbour’s property had a claim brought for damages by his mother on his behalf against the owner of the dog. The child was seriously injured on his upper thigh. The court cited the case of Green v Naidoo saying that the conduct of the person who was attacked by the animal need not necessarily be based on fault. Thus where the conduct of a child younger than 10 years is such that it provokes a dog sufficiently, then it would not be considered that the animal acted contra naturam sui generis, if it bit the child.
In the present case, the court had to decide whether the child’s presence on the boundary wall of the Defendant’s property constituted provocation and whether the child was lawfully present on the wall when he was attacked. Having regard to all the particular facts of the case, in May 2018 the court ruled that there was nothing to suggest that the child did anything more than sit on top of the boundary wall. He did not enter the defendant’s property nor did he do anything to provoke the dog. The court ruled that a well-behaved dog would not have attacked the child and found that the dog acted contra naturam. The court found that given the age of the child he was incapable of having the mental and intellectual capacity to understand the danger he was in. Judgment was given in favour of the Plaintiff against the owner of the dog, for the injury caused to her minor son.
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