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[2019] ZAGPPHC 63
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Mostert v Jones (61617/2016) [2019] ZAGPPHC 63 (8 March 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
REVISED.
Case No: 61617/2016
8/3/2019
In
the matter between:
SUSANNA
ELIZABETH JOHANNA MOSTERT
Plaintiff
and
GEORGE
ARTHUR JONES
Defendant
Date
of Hearing: 30, 31 October 2018, 2 November 2018
Date
of Judgment: 8 March 2019
JUDGMENT
BARNES
AJ
Introduction
1.
The
plaintiff sues as a result of an attack upon her by a Boerboel dog
owned by the defendant. The plaintiff suffered serious injuries
as a
consequence of the attack and was hospitalised for 33 days.
2.
The
plaintiff contends that the attack was caused by the negligence of
the defendant.
3.
The
plaintiff pleads
inter alia
that
the defendant failed to take steps to safeguard persons lawfully
present on his property from any possible attack on them by
the dog.
4.
The
defendant denies that he was negligent in any way and contends that
the plaintiff voluntarily assumed the risk of injury by
the dog,
alternatively that the attack was the result of the plaintiff's
negligence.
5.
The
parties agreed to separate merits and quantum and the sole issue for
determination before me is accordingly the question of
negligence.
The
Evidence for the Plaintiff
The Plaintiff, Ms Susanna
Mostert
6.
The
plaintiff, Ms Susanna Mostert, is a retired nurse, mother and
grandmother.
7.
At
the time of the Boerboel attack, the plaintiff was a tenant on the
defendant's property , together with her extended family.
8.
The defendant's property is located in
Andean, in the North West of Pretoria. It is sizable, some 2 hectares
in extent, and houses
the defendant's horticultural business as well
as two large residential homes. One of these is occupied by the
defendant and his
wife. The other is rented out by the defendant. On
7 November 2015, the plaintiff and her extended family ("the
Mosterts")
concluded a rental agreement with the defendant in
respect of the second home and moved onto the defendant's property.
9.
The
plaintiff testified that while signing the rental agreement, the
defendant informed her that he kept a Boerboel, named Rocky,
as a
guard dog. The defendant told her that he kept Rocky caged from 06:00
in the morning to 19:00 in the evening, when he was
let out in order
to guard the property. Rocky was then caged again at 06:00 every
morning. The defendant told the plaintiff that
while Rocky could be
intimidating, he was not aggressive and would not bite. Nevertheless,
said the defendant, if the Mosterts
had any problems with the dog,
they should let him know.
10.
The Mostert's house had an enclosed back
garden, while the front of the house abutted the common property. The
space between the
Mostert's house and the defendant's house was
unfenced and the two houses shared a driveway. This meant that, when
not caged, Rocky
had access to the entire property including the
front of the Mostert's house, with the exception only of the
Mostert's back garden.
11.
The plaintiff understood that Rocky's
cage was located near the back door of the defendant's house. The
plaintiff had not seen the
cage.
12.
The plaintiff testified that soon after
her family's arrival on the property, the defendant's wife, Mrs Terry
Jones, befriended
them. It was common cause that Mrs Jones visited
the Mosterts on a regular basis and accompanied them to church on
occasion.
13.
Tragically, in 2004, Mrs Jones had
suffered a diabetic coma and had been left mentally disabled as a
result. It was accepted by
both parties that Mrs Jones was not fit to
testify in the trial as a consequence.
14.
The
plaintiff testified that Mrs Jones told her that she had been bitten
by Rocky and was terrified of him.
15.
The plaintiff gave evidence about her
and her family's encounters with Rocky during their first few weeks
on the property in November
2015. The plaintiff testified that early
on Friday mornings, she would wheel the dustbins down the driveway to
the main gate for
garbage collection. She did so before 06:00 when
Rocky was uncaged . The plaintiff testified that Rocky would "mock
charge"
her. She would command him to "lie down" and
he would obey, briefly, only to resume the "mock charge"
thereafter.
This pattern would repeat itself. The plaintiff testified
that she felt that she could control Rocky on these occasions and was
not afraid of him.
16.
The plaintiff testified that she had had
a great deal of experience with dogs was not afraid of them.
17.
The plaintiff testified, however, that
the other members of her family were afraid of Rocky and that their
fear intensified as Rocky
increasingly displayed aggressive
behaviour.
18.
The
plaintiff related three incidents in this regard: one in which Rocky
had attempted to bite her son and another in which Rocky
had
attempted to bite her husband. Both had narrowly escaped being bitten
by the dog. In the third incident, Rocky had effectively
held the
plaintiff’s daughter-in-law and another family member hostage
in their home, by snarling and charging at them when
they had
attempted to leave the house in order to go for a jog.
19.
The
plaintiff testified that by early December 2015, a little under a
month after they had moved onto the property, her family felt
that
the situation with Rocky had become intolerable. The plaintiff
testified that while she personally was not afraid of Rocky,
she
agreed with her family that something needed to be done. Accordingly,
on Friday 4 December 2015, the plaintiff spoke to the
defendant in
the presence of her daughter-in-law, Ms Jessica Mostert. The
conversation took place at the Mosterts' home. The plaintiff
relayed
the above incidents involving Rocky to the defendant and said that
her family was afraid of the dog and that something
had to be done
about the situation. The plaintiff testified that the defendant
responded by giving an undertaking that he would
keep Rocky caged
until he could find a permanent solution. I will refer to this as
"the Friday conversation."
20.
The plaintiff testified that she and her
family did not see or hear Rocky on the night of Friday 4 December
2015 as they usually
did, and therefore assumed that he had been
caged in accordance with the defendant's undertaking.
21.
Prior to the week-end of 4 and 5
December 2015, Mrs Jones had accompanied the Mosterts to church on
two Sunday evenings.
22.
On the evening of Saturday 5 December
2015, Mrs Jones accompanied the plaintiff and members of her family
to a church function.
They all returned at about 21:00, in the church
mini-bus which the Mostert family drove. The Mosterts usually dropped
Mrs Jones
near the front door of the defendant's house. On this
occasion, Mrs Jones told the plaintiff that the defendant had
instructed
her to use the back door. This entailed a walk round the
defendant's house of some distance in semi-darkness. Mrs Jones was
agitated
and anxious and told the plaintiff that she was afraid of
Rocky. The plaintiff assured Mrs Jones that Rocky would be caged but
Mrs Jones remained anxious. The plaintiff accordingly accompanied Mrs
Jones round the defendant's house to a point near the defendant's
swimming pool, several metres from the back door. Rocky was caged and
Mrs Jones entered the house without incident.
23.
On
the evening of Sunday 6 December 2015, Mrs Jones accompanied the
plaintiff and members of her family to church. On their return
in the
church mini-bus, at around 21:00, Mrs Jones again told the plaintiff
that the defendant had instructed her to enter the
house via the back
door. Again, Mrs Jones was anxious and told the plaintiff that she
was afraid of Rocky.
24.
As
she had done the night before, the plaintiff assured Mrs Jones that
Rocky would be caged, but nevertheless accompanied her round
the
defendant's house.
25.
The plaintiff testified that it was
dark. At a point near the defendant's swimming pool. the plaintiff
stumbled and Mrs Jones caught
her arm. The plaintiff recovered her
footing, looked up and saw the dog.
26.
Rocky stood in front of them, barking
aggressively. The plaintiff instructed Mrs Jones not to move. They
stood dead still.
27.
The plaintiff saw the outside lights at
the back of the defendant's house come on. The defendant walked out
of the back door and
stood behind a tree.
28.
The plaintiff shouted at the defendant
to call his dog or it would bite one of them. The defendant's
response was to yell at them
to go into the side gate. The plaintiff
asked where it was. She got no response.
29.
The
plaintiff again shouted at the defendant to call his dog. He did not.
Rocky attacked the plaintiff, biting her several times
on her right
leg. The plaintiff shouted that Rocky was biting her and again yelled
at the defendant to call him. He did not.
30.
Rocky
let go of the plaintiff and moved off, only to return and lunge at
the plaintiff's throat. The plaintiff put up her right
arm to protect
herself and the dog bit it several times. The plaintiff hit Rocky
over the head with her cell phone. Finally, he
let go and moved off.
31.
The plaintiff and Mrs Jones retreated to
the Mosterts' home. The defendant phoned the plaintiff's husband and
asked that his wife
be sent home. The defendant made no attempt to
find out exactly what had happened or to establish how serious the
plaintiff's injuries
were. Nor did he offer any apology for the
incident.
32.
The plaintiff was taken to hospital
where she spent 33 days. She underwent 4 operations.
33.
In
cross examination, it was put to the plaintiff that the defendant had
told her that Rocky was dangerous and had instructed that
his home
was not to be approached after 19:00 in the evenings without prior
arrangement. The plaintiff denied this. She testified
that said the
defendant had consistently told her that while Rocky could be
intimidating, he was not aggressive and would not bite.
She denied
that she or her family had been instructed not to approach the
defendant's house after 19:00 without prior arrangement.
She
testified further that, in any event, she had believed that Rocky
would be caged on the night of Sunday 6 December 2015, by
virtue of
the defendant's undertaking on Friday 4 December 2015 that he would
keep the dog caged until he could find a permanent
solution.
34.
It
was put to the plaintiff during cross examination that the Friday
conversation had not taken place and, in particular , that
the
defendant had given no undertaking to keep Rocky caged. The plaintiff
maintained her version regarding the Friday conversation.
35.
It
was put to the plaintiff that the defendant had not kept Rocky caged
on the night of Friday 4 December 2015 and had let him out
at 19:00
as usual. The plaintiff responded that she and her family had not
seen or heard Rocky on the night of Friday 4 December
2015, as they
usually did, and had therefore assumed that he had been caged in
accordance with the defendant's undertaking given
earlier that day.
36.
It was put to the plaintiff that the
reason Rocky had been caged on the night of Saturday 5 December 2015
was because the plaintiff
had sent the defendant an SMS asking if Mrs
Jones could accompany them to a church function that evening and if
Rocky could be
kept caged until after their return. The plaintiff
denied this. She testified that she had sent the defendant an SMS
much earlier
in November 2015 asking if Mrs Jones could accompany the
family to church and that thereafter Mrs Jones had done so on her own
accord. The plaintiff denied that she had specifically requested the
defendant's permission for Mrs Jones to accompany them to the
church
function on Saturday 5 December 2015. The plaintiff maintained that
the reason Rocky was caged on the night of Saturday
5 December 2015
was because of the defendant's undertaking made on Friday 4 December
2015.
37.
Finally, it was put to the plaintiff
that on the night of Saturday 5 December 2015, the defendant had left
the front porch lights
on and the front door unlocked for Mrs Jones
and that she had entered through the front door. The plaintiff denied
this. She repeated
her testimony that Mrs Jones had said that the
defendant had instructed her to use the back door and that she had
accompanied Mrs
Jones round the defendant's house to a point near the
swimming pool, several metres from the back door, through which Mrs
Jones
had entered.
Ms Jessica Mostert
38.
The next witness for the plaintiff was
Ms Jessica Mostert, the plaintiff's daughter-in-law and a member of
the Mostert family living
on the defendant's property.
39.
Ms Mostert testified that she was afraid
of Rocky. She confirmed the incident during which she and another
family member had effectively
been held hostage in their home by
Rocky, who had snarled and charged at them each time they had
attempted to leave the house to
go for a jog. Ms Mostert was also
aware of the incidents in which Rocky had attempted to bite her
husband and her father-in-law.
40.
Ms Mostert confirmed the Friday
conversation between the plaintiff and the defendant and confirmed
that she was present. Ms Mostert
testified that the plaintiff had
relayed the incidents involving Rocky to the defendant and that the
defendant's response had been
that Rocky was just trying to
intimidate them and would not bite, but since they were uncomfortable
he would keep Rocky caged until
he could put up a fence.
41.
Under cross examination, Ms Mostert
conceded that the defendant may not have stated that he would put up
a fence. He may have said
that he would find a permanent solution and
she may have assumed that, by that, he meant put up a fence
42.
Ms Mostert testified that she did not
attend the church function on Saturday 5 December 2015. She could
therefore give no direct
evidence pertaining to whether Mrs Jones had
entered the defendant's house via the front or back door on her
return.
43.
Ms Mostert did attend the church service
on the evening of Sunday, 6 December 2015. She testified that on
their return in the church
mini-bus, Mrs Jones told them that the
defendant had instructed her to enter the house via the back door. Ms
Mostert testified
that Mrs Jones was unhappy about this and told them
that she was afraid of Rocky.
44.
That concluded the case for the
plaintiff.
The
Evidence for the Defendant
The
Defendant, Mr Jones
45.
The defendant testified that there is a
high crime rate in the Andean area and that there had been a number
of break-ins on his
property. For this reason, said the defendant, he
kept Rocky as a guard dog. He testified that Rocky is aggressive and
dangerous
and that in order to protect the workers he employs in his
horticultural business as well as the tenants on his property, he
keeps
Rocky caged during the day.
46.
The defendant testified that he informed
all his tenants, including the Mosterts, that Rocky was a guard dog,
not a pet, and that
he was aggressive and not to be approached. The
defendant testified that he informed the Mosterts that Rocky was
caged from 6:00
in the morning to 19:00 in the evening when he was
let out in order to guard the property. He informed them that his
home was not
to be approached after 19:00 in the evenings without
prior arrangement and that they should let him know if they required
him to
keep Rocky caged after 19:00 for any reason.
47.
The defendant testified that he had
received a request to keep Rocky caged during Ms Mostert's wedding
which was due to take place
at the Mostert's home in early December
2015 and that he had agreed to do so. This was common cause between
the parties.
48.
The defendant testified that he received
an SMS from the plaintiff on Friday 4 December 2015 asking if his
wife could accompany
them to a church function on the evening of
Saturday 5 December 2015 and asking if he would keep Rocky caged
until after their
return. The defendant testified that he had
responded that that was in order and that he would keep Rocky caged
as requested.
49.
The defendant testified that he was not
aware of any incidents where Rocky had behaved aggressively towards
the Mosterts. If they
had happened, they had not been brought to his
attention. The defendant denied that the Friday conversation had
taken place or
that he had given the plaintiff an undertaking to keep
Rocky caged.
50.
The defendant gave evidence about his
wife. He explained that she had gone into a diabetic coma in 2004
which had left her permanently
mentally disabled. The defendant
testified that, on a good day, she has the mental capacity of a 10
year old. He testified that
she had been in two different homes for a
year and six months respectively but had to be removed because of her
aggressive behaviour.
The defendant testified that he takes care of
his wife. This entails preparing all her meals and ensuring that she
is fed, bathed
and clothed every day. Their relationship, said the
defendant, is like that between a parent and a child. The defendant
testified
that his wife sometimes roams the streets and that while
this concerned him, there was little he could do about it. He could
not
lock his wife up, said the defendant.
51.
The
defendant denied that his wife was afraid of Rocky. He testified that
he and his wife have a loving relationship with the dog.
As for the
contention that his wife had been bitten by Rocky, the defendant
sought to play this down. He testified that his wife
had been holding
a kitten and that Rocky had snapped at it and broken the skin on his
wife's arm. The defendant had taken his wife
to hospital for a
tetanus shot.
52.
The defendant confirmed that his wife
had befriended the Mosterts and visited them regularly. He also
confirmed that his wife had
accompanied the Mosterts to church on two
Sunday evenings prior to the weekend of 4 and 5 December 2015. On a
third Sunday evening,
his wife had gone to the Mosterts' house as if
to accompany them to church, but had returned home shortly afterwards
for reasons
unknown to him.
53.
The defendant testified that his wife
would not always tell him that she was going to church with the
Mosterts. She would simply
start getting ready and he would deduce
that she was going out with the Mosterts and make sure that she was
properly dressed and
presentable.
54.
The defendant testified that on the
nights that his wife went to church with the Mosterts, he left the
front porch lights on and
the front door unlocked for her.
Furthermore, he kept Rocky caged until after his wife had returned
from church. This was not to
protect his wife, said the defendant,
but to protect the Mosterts.
55.
The
defendant gave the following evidence pertaining to the events of the
week-end of 4 to 6 December 201 5.
56.
On
the night of Friday 4 December 2015, he let Rocky out at 19:00 as
usual.
57.
On
Friday 4 December 2015, he had received a request from the Mosterts
that his wife accompany them to a church function on Saturday
night.
He had acceded to the request. Accordingly, on Saturday 5 December
2015, the defendant kept Rocky caged until after his
wife had
returned at around 21:00. He also, as he usually did when his wife
went out with the Mosterts, switched the front porch
lights on and
left the front door unlocked for her. The defendant testified that
his wife entered the house through the front door
when she returned
on Saturday 5 December 2015.
58.
On
Sunday 6 December 2015, the defendant woke early, prepared his wife's
meals for the day and left them in the kitchen for her.
59.
The defendant left the house at 06:00
and went to play golf. The defendant had no communication with his
wife all day. The defendant
returned home at 18:00.
60.
When
the defendant returned home, his wife's bedroom door was closed. The
defendant testified that his wife usually went to bed
at 17:30 and
closed her bedroom door when she went to sleep. The defendant
therefore assumed that his wife was in her bedroom,
asleep. He did
not check.
61.
The
defendant had supper. At 19:00 he fed the dog and let it out. He then
watched a little television. At about 19:30 the defendant
went to
bed.
62.
At
about 21:00, the defendant was woken by Rocky's aggressive barking.
He went to the back door and switched the outside lights
on. This lit
up only a small area outside the back door. The defendant could not
see into the garden where the barking was coming
from. He could
however hear his wife's voice and that of the plaintiff. He then
heard the plaintiff shouting that she was being
bitten by Rocky. The
defendant shouted that they should go in the side gate. This was a
reference to the pedestrian gate at the
swimming pool. The plaintiff
shouted back, "where is it?" The defendant testified that
he then realised that they would
not find the side gate, it was too
dark.
63.
The
defendant testified that he called Rocky. Rocky came to him but then
ran back to the plaintiff. The defendant then realised
that he would
not be able to keep Rocky with him so he went into the kitchen to get
some bones. He used them to lure Rocky into
his cage.
64.
The
defendant testified that he had not attempted to approach Rocky
during the attack as this would have made him more aggressive.
65.
Asked
why he had not gone to the Mosterts home to find out exactly what had
happened and how seriously the plaintiff had been injured,
the
defendant answered that he had been very angry. He could not believe
that someone would do as stupid a thing as the plaintiff
had done, he
said. He added that he had no medical training so there was nothing
he could have done in any event.
66.
Asked
what he would have done had he known that his wife was not home on
Sunday evening, 6 December 2015, he answered that he would
have
assumed that she had gone to church with the Mosterts. He would have
turned the front porch lights on and unlocked the front
door for her;
and he would have kept Rocky caged until after their return.
67.
During
cross examination, the defendant accepted that he had a duty to those
lawfully on his property, including the Mosterts, to
take reasonable
steps to ensure that they were not harmed by Rocky.
68.
During
cross examination, the defendant was asked about his ability to
control Rocky. He testified that he had full control over
Rocky in
normal circumstances. He conceded, however, that once Rocky went into
attack mode, he had no control over him whatsoever.
69.
The defendant was asked to elaborate on
why he kept Rocky caged until after his wife's return when she went
out with the Mosterts
and whether this was to protect his wife. He
answered that it was not. His wife had a loving relationship with the
dog, said the
defendant, and he did not believe that it would harm
her. The defendant testified that he kept Rocky caged on these
occasions because
the Mosterts were at risk of harm from the dog. It
was them, said the defendant, that he sought to protect.
70.
Under cross examination , the defendant could offer no explanation
for why he had not checked
that his wife was indeed at home on the
evening of Sunday 6 December 2015, save to state that she always
closed her bedroom door
her she went to bed.
Analysis
71.
It is apparent from the above that there
are two diametrically opposed versions pertaining to whether Rocky
ought to have been caged
on the night of Sunday 6 December 2015. The
plaintiff contends that by reason of the defendant's undertaking on
Friday 4 December
2015 that he would keep Rocky caged until he could
find a permanent solution, the dog ought to have been caged. The
plaintiff contends
that in the circumstances she did not foresee and
could not reasonably have been expected to foresee that Rocky would
not be caged.
72.
The defendant, on the other hand, denies
that he gave the undertaking and states that since he received no
request to keep Rocky
caged beyond 19:00 on 6 December 2015, he let
him out at 19:00 as usual. The defendant contends that the plaintiff
ought to have
known that Rocky would not be caged and in approaching
his house after dark in these circumstances she voluntary assumed the
risk
of an attack, alternatively, acted negligently, which negligence
caused the attack.
73.
Ordinarily, in these circumstances, I
would assess the credibility of the witnesses, as well as the
probabilities, in order to determine
which version ought to be
accepted. In the matter at hand, however, it is not necessary for me
to make these determinations. This
is because, in this case, I am of
the view that the answer to the negligence question emerges clearly
from the common cause facts
and the defendant's own version.
74.
The
salient facts, either common cause or part of the defendant's
version, are in my view, the following:
74.1
The
defendant kept Rocky, a Boerboel, as a guard dog on his property.
Rocky was aggressive and dangerous. Furthermore, the defendant
conceded that if Rocky went into attack mode, he had no ability to
control him.
74.2
The
defendant accepted that he had a duty to take reasonable steps to
ensure that persons lawfully present on his property, such
as his
workers and tenants, were not harmed by Rocky.
74.3
It
was in furtherance of this duty that the defendant kept Rocky caged
during the day.
74.4
It
was also in furtherance of this duty that, on the nights that his
wife went to church with the Mosterts, the defendant kept Rocky
caged
until after their return. Importantly, the defendant testified that
he did so not in order to protect his wife, whom
he did not
believe would be harmed by the dog, but to protect the Mosterts, who
were at risk of being harmed by the dog by virtue
of being in the
vicinity of the defendant's home after dark.
74.5
To
the defendant's knowledge, his wife had accompanied the Mosterts to
church on two Sunday evenings prior to 6 December 2015, and
had
attempted to do so on a third Sunday evening.
74.6
Most
importantly, the defendant testified that his wife did not always
tell him that she was going to church with the Mosterts.
She would
simply start getting ready and he would deduce that she was going to
church with the Mosterts and make sure that she
was properly dressed
and presentable. It is clear from this that, on the defendant's own
version, the Mosterts did not specifically
request his permission
each time his wife accompanied them to church.
74.7
The
defendant had had no communication at all with his wife on Sunday 6
December 2015. He therefore had no way of knowing whether
or not she
had gone to church with the Mosterts as she had done previously.
75.
In these circumstances, I am of the view
that the defendant ought to have foreseen that his wife might have
gone to church with
the Mosterts on the evening of Sunday 6 December
2015. I am of the view that a reasonable person in the position
of the defendant
would have foreseen this possibility.
76.
The defendant testified that had he
known that his wife was not at home on Sunday 6 December 2015, he
would have assumed that she
had gone to church with the Mosterts and
he would have kept Rocky caged until after their return.
77.
It follows that a reasonable person in
the position of the defendant would have checked that his wife was
indeed at home before
letting the dog out. He did not do so. Had the
defendant checked whether his wife was in her bedroom, he would, on
his own version,
have kept Rocky caged and the attack on the
plaintiff would not have occurred.
78.
For the above reasons, I am of the view
that the attack on the plaintiff was caused by the negligence of the
defendant.
79.
In the circumstances , I make the
following order:
1.
The
action succeeds with costs.
2.
The
attack on the plaintiff by the Boerboel dog owned by the defendant
was caused by the negligence of the defendant.
3.
The
defendant is liable for 100% of the plaintiff's proved or agreed
damages.
BARNES AJ
Appearances:
For
the Plaintiff: Adv M Coetzee instructed by Alet Uys Attorneys
For
the Defendant: Adv H Greet instructed by Ludick Attorneys