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[2016] ZAECELLC 11
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Trolip v Wattrus (EL1416/14, ECD3016/14) [2016] ZAECELLC 11 (6 December 2016)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
EAST LONDON CIRCUIT
LOCAL DIVISION
CASE
NO: EL 1416/14
ECD 3016/14
In the matter between
BRIAN WILLIAM TROLLIP
Plaintiff
and
SHERIDENE WATTRUS
Defendant
JUDGMENT
HARTLE J
1.
This action concerns a claim by the plaintiff for
damages against the defendant arising from an incident which occurred
at her home
on 15 April 2014 when a boerboel owned by her named Zeus
bit him. He suffered significant injuries as a result,
including
the loss of his ear and extensive wounds to his arm, neck
and face.
2.
By agreement between the parties I granted an
order directing that the evidence focus only on the question of
liability, the issue
of the quantum of damages to stand over for
determination until later, if needs be.
3.
The plaintiff’s claim on the pleadings is
based on the
Actio de Pauperie
,
alternatively on the
Lex Aquilia
.
To the
Pauperien
claim
the defendant pleaded a bare denial that her dog acted
contra
naturam
sui generis
when he attacked and savaged the plaintiff, or that the dog even
attacked and savaged him for that matter. She further raised
defences – albeit in response to the alternative cause of
action, of
Volenti non fit iniuria
;
the plaintiff’s own negligence and provocation of the dog by
him under the peculiar circumstances. The plaintiff,
in turn,
denies the allegations forming the basis for the defendant’s
various defences.
4.
It is apposite to set out the essential
allegations in the pleadings bearing upon the issue of liability.
The plaintiff avers
that:
“4.
On or about the 15
th
of April 2014 at approximately 18:30
and at 6A Worral Road, Nahoon, East London, and acting
contra
naturam sui generis
, the Defendant’s dog attacked and
savaged the Plaintiff, in consequence, causing him severe injury.
5.
Alternatively, in the event that it is not established that the dog
acted at
the material time
contra naturam sui generis
, the
Plaintiff pleads that the Defendant was negligent in that:
5.1
The Defendant knew or ought to have known that “the dog”
was at times vicious
and likely to bite people lawfully present on
the premises;
5.2
The Defendant failed to take any steps alternatively reasonable steps
to safeguard persons
lawfully on the premises from possible attack on
them by “the dog”;”
5.
In respect of paragraph 4 of the plaintiff’s
particulars of claim the defendant admitted only that the plaintiff
was “
involved in an incident
with
(her)
dog
”.
Regarding the plaintiff’s allegations of negligence on her part
in respect of the alternative cause of action,
the defendant pleaded
as follows:
“5.
AD PARAGRAPH 5:
5.1
The allegations herein are denied.
5.2
Defendant pleads that Plaintiff was at all material times aware that
Defendant kept a fierce
dog upon the property, that the dog disliked
a collar and leash on it and that such dog was liable to bite and
injure a person
with whom it was not familiar, but in spite of such
knowledge the Plaintiff made contact with the dog where it was
isolated in
the backyard away from anyone entering the property and
freely and voluntarily assumed the risk of injury to himself.
5.3
Alternatively, Defendant pleads that Plaintiff, having the aforesaid
knowledge, was negligent
in entering the area where the dog was
isolated in the backyard at the property away from anyone entering
the property and that
any injury sustained was occasioned by
Plaintiff’s said negligence.
5.4
Plaintiff was warned not to approach the dog where it was isolated in
the backyard and was
specifically warned that the dog does not like a
collar and leash.
5.5
Plaintiff unreasonably, intentionally and in total disregard to the
said warnings and to
his own personal safety, provoked the dog by
attaching a collar and leash to the dog.”
6.
It was agreed between the parties and recorded in
the joint proposed final pre-trial order in terms of paragraph 11 of
the Case
Management Practice Directive that the issues to be resolved
at the trial would be confined to the following:
“1.1
Whether Defendant’s dog attacked and savaged the Plaintiff, in
consequence, causing him
severe injury.
1.2
Whether the Defendant’s dog acted
contra naturam sui
generis
;
1.3
Whether the Plaintiff provoked the dog;
1.4
Whether the Plaintiff acted negligently;
1.5
Whether the Plaintiff, by his conduct, voluntarily
assumed the risk
to injury;
1.6
Whether the Defendant was negligent as alleged by the Plaintiff.”
7.
Although tersely stated, these issues are to be
determined in the greater context of the parties’ pleadings.
On this
subject, I suspect that the plea to paragraph 4 of the
plaintiff’s particulars of claim was formulated in the manner
in which
it was so as to avoid attracting an onus to the defendant,
but it was certainly not in dispute at the trial that “
the
incident
” referred to in the pleadings
in fact involved the defendant’s dog biting the plaintiff and
quite savagely at that.
Further, although the issue of the
quantum of damages is to stand over for determination until later, it
appears to be accepted
that in consequence of the attack and biting,
the plaintiff sustained certain severe injuries.
[1]
8.
The centuries old
Actio de
Pauperie
attributes strict liability to the
owner of a domestic animal which has caused damage to a human being.
Liability is based on mere
ownership of the damage causing animal.
It is neither based on fault on the part of the owner nor on
“scienter,”
that is knowledge by him or her of the
vicious propensities of the animal. Liability on this basis is the
result of the peculiar
historical developments of the
Actio
.
[2]
9.
That such a claim avails and remains part of our
law was settled by the Appellate Division in the matter of
O’Callaghan NO
v Chapman in 1927
[3]
and, despite a submission before the Supreme Court of Appeal in
Loriza Brahman v Dippenaar
[4]
in more recent years to the effect that the
Actio
de Pauperie
was an anachronism that should no
longer be recognized, the court held that the action still had
a useful role to play, had
not fallen into desuetude and was neither
unconstitutional nor
contra bonos mores
.
Innes CJ in O’Callaghan NO v Chapman clarified the nature and
self-limitation of the claim as follows:
“By our law,
therefore the owner of a dog that attacks a person who was lawfully
at the place where he was injured, and who
neither provoked the
attack nor by negligence contributed to his own injury, is liable as
owner to make good the resulting damage
.”
[5]
10.
It is necessary for the plaintiff to allege and
prove the essentials of the claim, namely that the ownership of the
animal vested
in the defendant at the time of the infliction of the
injuries; that the animal was a domesticated animal; that it acted
contrary
to the nature of domesticated animals generally in causing
damage to the plaintiff; and that the conduct of the animal caused
the
plaintiff damage.
[6]
11.
Prima facie
an attack
by a domesticated animal is
contra naturam
and therefore unreasonable and wrongful.
[7]
12.
The onus is on the defendant to displace this
inference by adducing proof that there was some force external
to the animal
which had caused it to act ferociously, thus negating
the no fault liability attributed to her as the owner of the dog.
[8]
The approach to be adopted in this regard is helpfully set out in
Thysse v Bekker
[9]
as follows:
“
The success of that remedy
(that
is the claim under the
actio
de Pauperie)
depends upon
proof that W's injuries were caused by the actions of a domesticated
animal owned by the defendant which had acted
contra
naturam sui generis
- contrary to
the nature of its kind. The plaintiff's witnesses have proved
positively that the defendant was Prins's owner,
that Prins was a
domesticated animal, and that he bit W, causing him serious injury.
Proof that Prins bit W in these circumstances
gives rise to the
prima
facie
inference that Prins acted
contrary to the nature of its kind. The sole issue is whether
the defendant has discharged the
onus
of displacing this inference, which he may do,
inter
alia
, by proving that the dog was
provoked by the injured party (the provocation, it seems to me, need
not be culpable), or by another
person, or purely by chance. He
has sought to discharge the
onus
by relying on Prof Odendaal's opinion that the dog's conduct in
biting W was, from the dog's point of view, expected and normal
behaviour, that the dog was acting according to its nature, and that
blame for the incident should be attributed to W's behaviour
towards
the dog.”
13.
In that matter the defendant has pleaded a
defence that owing to the peculiar nature of the dog’s breed
its action of biting
was an instinctive reaction which was the only
way in which the dog could have reacted in the circumstances and
that, viewed from
the dog’s perspective, it was to be expected.
Hence, so it was submitted, the dog had acted according to its
nature.
Jones J noted however that even though such a
hypothesis - based as it was upon scientific principles, purported to
give a reasonable
explanation of the dog’s behaviour, there
were two things that needed to be made clear. One is that it is
the court’s
function and not that of the expert to decide
whether the dog acted
contra naturam sui
generis
(albeit a court may find guidance in
such opinion) and the second is that the conclusion which the court
reaches in this regard
is based not on scientific criteria but legal
criteria which the court is expected to apply.
14.
Whilst in that matter the expert purported to
explain the behaviour of the dog from
its
point of view Jones J referred to the court’s obligation to
evaluate the animal’s behaviour against a different and
more
general standard of behaviour which the law expects of a domesticated
animal generally. What that standard is is expressed
thus:
“The issue is not whether Prins behaved
according to its own nature, which is the test applied by Prof
Odendaal, or to the
nature of its breed. It is whether the dog
behaved in a manner which the law considers acceptable by animals
which share the human
environment with human beings because they have
over the ages become domesticated.”
[10]
15.
The standard of behaviour contemplated is
instructively set forth by Jones J as follows:
“What is the standard of behaviour which
the law expects of a domesticated animal? To state that the animal
must not act
contra naturam sui generis
is not a
quick-fix answer. This concept is not always easy to define. It has
been important in determining the boundaries of liability
from the
inception of the remedy in Roman law. It alleviates some of the
hardship of imposing liability on owners who are not to
blame for the
damage: owners are not liable for all damage done by their
domesticated animals, only for damage caused by them
when they
act
contra natura sui generis
. Because the law imposes strict
or 'no-fault' liability on an owner, questions of judicial and social
policy have a role in determining
when an animal acts
secundum
naturam
or
contra naturam
. The application of
considerations of legal policy is not the function of an expert
witness in the biological sciences.
Neither
the old authorities nor the modern decisions of the courts provide an
exhaustive test for the question of when does the
law consider that a
domesticated animal acts
contra naturam suam
? But they lay
down the approach to be followed. A frequent starting point is the
statement in Voet 9.1.4:
'Animals
are said to do harm contrary to their nature when, though tame, they
take on wildness; as when a horse kicks or an ox gores,
albeit that a
horse is apt to kick and an ox wont to gore. An ox and a horse, along
with other animals which come under the term
''cattle'', are wont to
graze in a herd under the control of a shepherd without doing
harm, and to that extent they are counted
among tame four footed
creatures. Hence it is correctly said that they do damage contrary to
the nature of their kind when on their
wildness being roused they
kick or gore.'
”
[11]
16.
Why this exacting
standard is imposed on owners was clarified by Jones J in the
following terms:
“The law expects domesticated animals not
to revert to their former wildness. They must suppress instincts
which on the face
of it are 'natural'. This leads to the conclusion
that the expression
contra naturam sui generis
is not to be
used literally. This view was expressed in the useful analysis of the
authorities in a note by P M A Hunt 'Bad Dogs'
(1962) 79
SALJ
326, which has been quoted with approval by the courts. The
author of the note continues (at 328):
'De
Villiers CJ (at 10) in
Edwards
's
case spoke of behaviour ''not considered such as is usual with a
well-behaved animal of the kind''. ''Well-behaved'' imports
an
objective element going beyond ''natural'' behaviour. Much the same
may be said of Laurence J's formulation in
Cowell
v Friedman & Company
(1888) 5 HCG 22 at 53: ''some vicious, perverse, or unwarrantable
behaviour''.
The
contra naturam
concept
seems, in fact, to have come to connote ferocious conduct contrary to
the gentle behaviour normally expected of domestic
animals.
This
imports an objective standard suited to humans. It is far more
refined than behaviour literally
natural
to
that species of animal. It is what
Voet,
9.1.4,
means when he speaks of
animalia mansueta feritatem assumunt.'
”
[12]
17.
It is expected of
such animals, because they have become domesticated, that they should
be able to control themselves, and if they
do not, they are regarded
as having acted
contra
naturam sui generis
.
18.
The rationale behind
the notion of
contra
naturam sui generis
is because:
“… domestic animals have been
under the influence of man for such a long time that a minimum
standard of good behaviour
can be expected from them. Thus it is
considered
contra naturam
for a dog to bite, an ox to
gore, or a horse to kick or to bolt spontaneously when harnessed to a
cart or with a rider on
its back.”
19.
The test to be
applied by the court in examining the conduct of the animal under
scrutiny is as follows:
“In some cases the animal's conduct is
categorised as
contra naturam
because it acted from inner excitement or vice or from a reversion to
wildness. Sometimes the courts and commentators, to use the
language of
Hunt
…, apply an objective standard suited to human beings. Thus
'(t)he conduct of the animal is compared with the conduct of
a
well-behaved animal of its kind - the animal is personified and the
reasonable man test becomes the test of the reasonable dog'.
This is by way of fiction, a convenient way of stating what the
law expects of a domesticated animal. The courts do not literally
attribute powers of reason to a dog by measuring its conduct against
that of 'the reasonable dog', or literally ascribe to a dog
the
logical capacity to distinguish between an unjustified attack upon it
which it may be 'entitled' to resist in a well-behaved
manner and the
lawful use of violence against it to restrain it, to which it should
submit as a well-behaved domesticated animal.”
[13]
20.
In Green v Naidoo
[14]
the court assumed that the dog’s nature is presumed to be the
objective standard of a well-behaved domesticated dog and that
this
concept imports an objective element taken from the human mores of
urban society which are alien to the rural and natural
state of the
wild and untamed.
21.
The Supreme Court of Appeal has further made it
clear in Loriza Brahman v Dippenaar
[15]
that the test to determine whether a domestic animal – normally
expected to be “
mak, vreedsaam en
gedissiplineerd
” (tame, peaceful and
disciplined) has behaved beyond the pale (“
strydig
met die aard van die huisdier”)
by
“
(e)nige optrede wat voortvloei uit
feritas (wildheid), fervor (wreedheid) of lascivia (perversiteit)
”
is not directed at a specific species of a
genus
,
but at the normal conduct of animals belonging to the
genus
in question. The fact of the breed of Zeus in this instance,
namely that of the boerboel – even if regarded as somewhat
of a
more ferocious breed of dog, is therefore irrelevant in the enquiry.
Also irrelevant to the enquiry for these purposes
(where the claim is
limited to the fault or temper of the dog) is the question whether
the dog behaved contrary to its own particular
nature.
[16]
22.
Whether an animal has acted unnaturally (in the
sense of being contrary to its usual habit of tameness) and the
question of what
caused it to react as it did must in each case be a
question of fact and dependent on the peculiar circumstances of the
matter.
The enquiry to be performed by this court then is directed at
ascertaining the conduct expected of a reasonable dog acting in
accordance
with its nature when faced with such a situation. In the
present matter, and despite how the plea was framed, the defendant in
order to discharge her liability as owner need prove that her dog
behaved in the manner in which she says it did by attacking the
plaintiff, not from inward excitement or vice or from a reversion to
wildness, but because of the pleaded conduct of the plaintiff
which,
if found proven, would amount to a reasonable limitation of the
Pauperien
doctrine.
[17]
23.
In respect of the
Volenti
defence raised by her, which appears to stand on its own footing as a
general defence, the defendant is required to prove that
the
plaintiff was aware of the risk of being attacked by the dog and yet
assented to undergo that risk.
[18]
The approach is different from the defence of the plaintiff’s
own negligence where the focus is on objective standards
of
reasonableness. The
Volenti
defence looks at the plaintiff’s subjective state of mind.
24.
The first enquiry then is what caused the
attack. Two possible irreconcilable causes emerged from the
evidence. On the
plaintiff’s version the dog was roused
by the barking of a neighbour’s dog which caused him to turn on
him and attack
him. On the test which is outlined above this
poses no difficulty in regarding the dog as having acted contrary to
his nature
and therefore from some inward excitement or vice or
reversion to wildness.
25.
The defendant on the other hand held out a
version that her dog had bitten the plaintiff, who was unfamiliar to
the dog, because
he had pushed it to extreme behaviour as it were by
his own negligence in approaching him in an area of the defendant’s
property
away from anyone entering it and where the dog was isolated,
by putting a collar and leash on him which he was known to dislike.
This according to the defendant led to the eventual attack when the
plaintiff leaned in to take it off the dog or while he was
in the
process of doing so. In other words, the entire incident was as
a result of his own conduct, for which reason she
must be discharged
from
Pauperien
liability.
26.
The plaintiff testified that he accompanied the
defendant’s mother, with whom he is in a relationship (Ms.
Lloyd) to have
dinner with the defendant at her home on the
particular evening. He was prompted to explain – in order
to set the tone
for the dog’s familiarity with him, that Ms.
Lloyd met with the defendant once a week (generally on a Tuesday
while her husband
played rugby) when she would spend time with both
the defendant and her grandson, who was approximately two years old
at the time.
He would accompany her on these occasions so had
visited the home a number of times and had had regular interaction
with the dog.
27.
He described it as a young pup weighing
approximately 60kg, boisterous and playful but with an even and
loving temperament.
As far as he was aware, the dog had not
received any formal training. His understanding of the reason
for this was that the
defendant had proclaimed that he was too much
of a pup still (“too playful”) to get trained.
28.
On the issue of the dog’s territorial
habits, he was certain that it had always had full roam of the
defendant’s yard
generally both in the back and front sections,
being closed up in the back only on the occasion of birthday parties
if children
were around. He believed that this was because it
would make a nuisance of itself, rather than because it constituted a
danger
to the children. On practically all of his visits to the
defendant’s home the dog would regularly come into the lounge
and lie on the floor in front of the couch. He had on occasion
petted it, rubbed and scratched it. He had even joined
Ms.
Lloyd’s grandson in rolling on the trampoline with it in play.
29.
Concerning the events leading up to the attack
itself, the plaintiff recalls that the dog was “
probably
a little bit boisterous on the day
” and
that the defendant had mentioned that it needed to go for training.
Under cross examination he was reminded that
she was upset because it
had killed a poodle outside their gate the previous day and this
thought was foremost in her mind upon
their arrival at her home.
Consequently he had offered to help her by putting the dog on a leash
to establish its level of
training. He had informed her, as a
pretext for getting involved on this basis, that he had been involved
in the formal training
of dogs while serving in the army many years
ago. This included obedience training with mostly Rottweilers,
German Shepherds
and Sheepdogs as guard dogs. The defendant had
suggested that it was unnecessary for the plaintiff to involve
himself right then
and there however since she was busy at the time,
but he volunteered that he would walk the dog up and down the
driveway on his
own while she continued to busy herself with her
cooking and preparation in the kitchen.
30.
He found the dog in the yard in the front
entrance to the defendant’s home and fitted its own choke chain
to it, the whereabouts
of which was pointed out to him by the
defendant. He walked it up and down the driveway, about ten or
twelve times, stopping
on occasion and making it walk backwards as
well. In his view the dog appeared to have had some prior
experience of command
training having regard to the fact that it
would walk, follow or stand still next to him at his prompting.
31.
Being impressed with the progress made with the
dog he called out to the defendant through the kitchen window to come
and observe
and remarked to her that it actually knew at least a bit
about discipline and appeared to listen. He expressed the
reservation
though that it probably required someone with a firmer
hand to control it. (He reflected that the defendant was
perhaps too
small to manage it.) He thereupon demonstrated to
her that the dog was in hand by repeating the exercise with it,
walking
it to the gate and back and doing exactly as he had rehearsed
with it earlier. Patently up until then this interaction with
the dog in this manner had not evoked any negative reaction.
32.
When he leaned down near the front door to take
off the choke chain however a neighbour’s dog barked causing
Zeus to make
for the wall in the direction of the other dog’s
barking, jumping against the wall and barking in retaliation.
Zeus
went as far as the choke chain would allow him since the
plaintiff was still holding the leash in his hand, but he turned back
towards him and unexpectedly attacked him. He knocked him over
and bit him on his arm, hand, throat, and ultimately on his
face and
ear, ripping the ear off in the process and pulling the skin off his
skull. The defendant screamed and managed ultimately
to call
the dog to order.
33.
In the plaintiff’s opinion there was
absolutely no reason before this incident to suppose that Zeus was a
particular danger
to him or others, neither was he forewarned by the
defendant in this regard. No fear had ever been expressed to
him by her
that the dog might, for example, injure Ms. Lloyd’s
grandson who was allowed access to him, evidently without any
reservations
for his safety. Of course he knew that Zeus had
gone out into the street on the night before and had bitten a dog
from the
neighbourhood, but he considered this to be commensurate
with what “
dogs do … sometimes
”.
34.
Under cross examination he denied the premise of
the defendant’s defence; his supposed knowledge of the fact
that the dog
had purportedly turned on her on a prior occasion and
had bitten her, because it did not like the collar and leash; or that
this
constituted the rationale for her and her husband’s
decision not to proceed with its training at the dog school. He
similarly denied any knowledge that she and her husband were
supposedly desirous of putting the dog down. As far as he was
aware, it was only after he was attacked that the issue came up for
discussion and that the family expressed the wish to rid themselves
of the dog. He further denied being apprised by the defendant that
Zeus jumps up at strangers or is aggressive towards them when
pushed
away or that the defendant had felt particularly uncomfortable with
the dog moving around inside the house, even before
he had fatally
attacked the poodle.
35.
The plaintiff further denied bearing any
knowledge of a rule (which he had supposedly flouted) that the dog be
kept strictly in
the back yard after the poodle incident, neither did
he agree that Zeus had been constrained to that area just before the
attack,
On the contrary, he recalled him roaming in the front of the
home that evening, which is where he had found him when he put the
choke chain on him.
36.
He denied hearing the defendant say, when he
volunteered to take the dog for a walk, that his walking it was “not
a good idea”
because it disliked a collar and leash and/or
warning him that the dog would bite him. He further denied any
knowledge of
the defendant supposedly asserting as he went outdoors
to walk the dog that “I hope you have a good medical aid”.
Although
he had shared with the defendant that he was
accustomed to training dogs, he did not agree that he had consciously
offered this
as an assurance to her against the supposed concern
raised by her that the dog would surely bite him under the
circumstances.
He agreed though that he had probably said
something like this to her to put into context that he knew how to
deal with the dog
and might be able to assist her by training it.
37.
The plaintiff was not in agreement that the dog
had attacked him in the process of taking the collar and leash off it
although he
had leaned down in readiness to do so when the barking of
the neighbour’s dog interposed itself and provided the spark
ostensibly
for the ultimate attack upon him by it.
38.
Ms. Lloyd who lives together with the plaintiff
and is the mother of the defendant testified on behalf of the
plaintiff. She
could not add much to the issues since she did
not observe the attack itself or the plaintiff’s interaction
with Zeus shortly
before this, neither did she overhear any of the
conversations between her daughter and the plaintiff. She had
been busying
herself in the lounge with her grandson whilst the
plaintiff and the defendant talked in the kitchen. She surmised that
they had
discussed the dog.
39.
Regarding how it came about that the plaintiff
involved himself with the dog, she recounted that she had heard him
offer to walk
it although the defendant had responded that it was
unnecessary to do so (“
No don’t
worry!
”). She denied any
suggestion that the defendant in interacting with the plaintiff about
the dog had conveyed an impression
that she was uncomfortable with
him walking it or that it was liable to bite him.
40.
Concerning the nature of the dog and its movement
around the home she observed that it had not been restrained anywhere
around the
home. Sometimes it was in the front, and sometimes
in the back (“
There was no specific
place he was in
”). Indeed it was
often inside the home with them when they visited.
41.
She did not consider the dog to be fierce and was
surprised to learn that it had supposedly turned on her daughter and
attacked
or bitten her at school while it was on a collar and leash.
She was positive that she would certainly have remembered such
an
event. She was however aware of the poodle incident. In response to a
question whether the defendant still had the dog after
the attack on
the plaintiff and whether her grandson was allowed access to it, her
horror that his father presently still took
him with him to feed the
dog was quite palpable.
42.
She supported the plaintiff’s evidence that
he had enjoyed a good rapport with Zeus before the incident and that
the dog was
familiar with him. She also confirmed generally
that the dog was not vicious.
43.
The defendant’s account of the salient
events that evening was that after the plaintiff and her mother’s
arrival at
her home and while she was in the kitchen cooking supper,
the plaintiff came in and directly took the dog’s collar and
the
leash. She asked him what he was doing and he replied that
he was going to take the dog and train it or take it for a walk.
She retorted that she was not comfortable with that and remonstrated
that the dog did not like a collar and chain. She explained
to
him that she knew this from her own experience but he assured her
that he was comfortable doing so despite her belief that it
was not a
good idea.
44.
She was careful to emphasize that both Zeus and
their other dog (a Jack Russell) had upon her mother’s arrival
been at the
back of their house in a fenced off section “
where
we keep our two dogs separate from our entrance gate
”.
According to her it was true that the dogs had roamed freely in the
house and the whole of the yard before the attack
on the plaintiff
and before it bit another dog the previous day, but that was no
longer the position.
45.
Asked about the poodle incident - of which she
had no personal knowledge, she knew only that their dogs had made
their escape from
their yard when her husband had opened the gate to
let the staff into the main gate at the front the previous day and
that Zeus
had attacked the poodle which was walking with its owner in
the street. The poodle had not survived the attack.
46.
Prompted to explain her discomfort concerning the
idea of the plaintiff using the collar and leash to walk the dog
because of her
“prior experience”, she described what
that was about in the following terms:
“I had felt
that the dog was vicious and I thought that I would try and take him
to dog school and see if that would help.
On the one occasion
at dog school he, there was another Rottweiler that was new to the
lesson and I landed up in between the two
and they landed up growling
and then jumping, trying to attack each other and then I landed up in
the middle. So Zeus bit
me on the arm during the lesson
.
”
47.
According to her – and she was quite
emphatic in this regard, her mother had knowledge of the fact that
she had been bitten
by Zeus on this occasion. She conceded that
she had not told the defendant herself however despite that it
was put
to him under cross examination that he had personally been
informed by her of Zeus biting her under these circumstances. Her
anticipated testimony was watered down to her rather only making an
assumption that her mother had surely passed this information
on to
the plaintiff thereby making him prescient of the dog’s fierce
propensity and the risk which he was undertaking.
48.
In her perception, despite her telling the
plaintiff that she was uncomfortable with him walking or training
Zeus, he had pertinently
sought to reassure her by informing her that
he had trained dogs previously in the army and had experience in this
regard.
49.
Despite the further anticipation which had been
created by the cross examination of the plaintiff that the defendant
would testify
that she had consciously and firmly warned him a second
time of the risk of walking Zeus and had asserted that she had said
emphatically
that she hoped that he had medical aid because he was
going to be bitten, she offered rather feebly in her evidence in
chief instead
that she had said as much only “
in
a joking way
” and as a parting shot to
him as he went out the door with the dog to walk it.
50.
It is self-evident that the court was faced with
mutually destructive versions on the vital issues for consideration
as well as
in respect of peripheral matters bearing upon the
probabilities.
The approach to be adopted in
circumstances where the evidence is mutually destructive is set forth
in National Employers’
General Insurance Co Ltd v Jagers
[19]
;
Baring Eiendomme Bpk v Roux
[20]
;
Santam Bpk v Biddulph
[21]
and Stellenbosch Farmers’ Winery Group Ltd and Another v
Martell Et Cie and Others.
[22]
In order to come to a conclusion on the disputed issues the
Court must make findings on the credibility of the various factual
witnesses; their reliability; and the probabilities.
51.
The plaintiff made a favourable impression on
me. His evidence was consistent and logical. Under cross
examination he
fielded questions without fanfare even though patently
inaccurate premises were put to him of what the defendant would
supposedly
say in her testimony (the exact manifestation of which did
not materialize), but this did not detract from the essence of his
narrative.
No hint of malice or resentment was evident in his
demeanour toward the defendant and her husband despite the obviously
unfortunate
incident and serious injuries sustained by him. He
readily made concessions, more especially that there was no basis for
the alternative claim of negligence against the defendant on his
version. Instead of going out of his way to find fault with her
conduct, on the contrary he sought to come to her defence (despite
the vehemence with which she maintained that the dog was known
to be
vicious) that she could not have had any inkling that the dog would
bite him and agreed without hesitation that she could
not have done
anything differently to what she did on that day that would have
prevented the dog from attacking him. He also did
not seek to
downplay that he had boasted in a sense about his prior experience of
training dogs in the army, albeit he was clear
that his revelation in
this regard was not prompted by any fear that the dog would surely
bite him as the defendant sought to suggest,
but rather that he was
keen to assist her with the dog’s training and hoped, by virtue
of his training experience, to be
of some assistance.
52.
Ms. Lloyd similarly made a fair impression on
me. While it was suggested by counsel for the defendant that
she was biased
in favour of the plaintiff, on the contrary she
conveyed genuine apprehension, and remains so concerned, for the
safety of the
defendant and her grandchildren
[23]
because of what had happened to the plaintiff. Her concern was
echoed in the rhetorical question she posed: “(I)f the
dog can
cause damage to a human being (as it had done to the plaintiff)
what’s it going to do to my grandchildren, or my
daughter?”
She struck me as an honest witness who did not hesitate to reply in
the affirmative that her daughter was
lying if the suggestion was
that she supposedly knew that the dog was vicious and that it had
bitten her before. Her surprised
reaction at this assertion was
very obvious.
53.
The only discrepancy between the plaintiff and
Ms. Lloyd’s evidence (which Mr Pieterse who appeared for the
defendant urged
upon me to find was of a material nature) concerned
the frequency of the number of visits by the plaintiff to her
daughter’s
home before the damage causing incident, but in my
view nothing much turns on this issue because the defendant agreed
ultimately
that that her dog was familiar with the plaintiff. I
suspect that the fact of the discrepancy itself might be due to the
situation that it has become second nature for Ms. Lloyd’ to
visit her daughter very frequently, perhaps even twice a week,
and
that this custom has continued even beyond the date of the incident
so that she may have overestimated the number of times
the plaintiff
himself accompanied her. In any event it was not suggested to her
that she was lying in this regard neither did she
appear in my view
to be consciously making anything of the frequency of the plaintiff’s
visits in order to put a particular
spin on it to boost the
plaintiff’s case. In this vein, of not wittingly painting
a picture on his behalf, I mention
that it was also purely
coincidental that her vague recollection of events that evening
fitted in seamlessly with the plaintiff’s
account of his
discussion with the plaintiff around the issue of walking the dog.
In trying to make it clear under cross
examination that she
unfortunately could not relate exact details of what was been
discussed but only the gist of it, the distilling
by her of her sense
of understanding of the discussion - which there was some pressure on
her to make under cross examination,
was that there was certainly no
reservation expressed by her daughter to the defendant that the dog
posed a danger. Even
her testimony that she had nothing to tell
except that the evening ended with this misfortune of the plaintiff
sustaining injuries
corroborates his version that what happened
outside between him and the dog was totally unexpected.
54.
The defendant on the other hand did not instill
the same confidence in the court. When it suited her
convenience she used
hyperbole to maximize sensation and to exonerate
herself from liability. Further her evidence, especially around
why or how
she came to deduce that the dog did not like a collar and
chain so as to give a context to the so called provocation that the
plaintiff
had made himself guilty of made no sense. Her
tangential experience with her dog and the Rottweiler at the training
school
which she relied upon failed to explain the dog’s
supposed dislike of the collar and chain which is at the crux of the
causa causans
of the
attack as far as she is concerned:
“If I
understood your evidence correctly, that incurred in circumstances
where a Rottweiler and your dog were at each other,
and you were
between trying to separate them? --- What happens was at dog school
they, you weave in and out the other dogs to kind
of familiarise them
or get them used to other dogs, but because my dog was so much more
vicious and bigger, I used to go right
on the outside. And so
when we were leading out to go back to the car, there was the
Rottweiler next to us and they, I don’t
know which one growled
first or if they gave each other a fright, I'm not 100% sure why, but
they turned on each other and it just
so happened that I was standing
here and Zeus was next to me and the Rottweiler was here and his
owner on that side of him so I
landed up in between.
And those are the
circumstances under which your own dog bit you? --- It wasn't, ja
that's what happened and then the owner of the
Rottweiler called the
Rottweiler away, and I don’t know if Zeus reacted, he obviously
then turned to bite me and he had a
choke chain on, so I had pulled
the choke chain to try and get him to stop and that's when he turned
and bit me.
So the Rottweiler
was already out of the way. That interaction between those two
dogs was no longer happening, it was just
you and your own dog. ---
That’s correct, yes.”
[24]
55.
What the reference demonstrated on the contrary
is that the dog was easily roused by its interaction with other dogs
which supports
the probability in favour of the plaintiffs version
that the neighbor’s dog’s barking rather than him putting
the collar
and chain on Zeus was the spark for his wild and perverse
behavior which culminated in the attack on the plaintiff.
Further
the distinct impression was gained that the account given by
the defendant in her testimony as such was not as dramatic as she
must have represented to her counsel in consultation because the
premise of the cross examination, which ought to have heralded
a fair
and accurate hint of what she would supposedly say when she gave her
evidence, did not quite meet that expectation.
For example, her
supposed stern and conscious warning to the plaintiff that the dog
was going to bite him and her strongly challenging
him that she hoped
he had a good medical aid, which would have charged the air with
foreboding that something awful might happen
if he continued against
her wishes to walk the dog, was whittled down to her feebly only
joking as much to the plaintiff.
(No wonder her mother had not
related a sense that the air was pregnant with dread that the walk
was going to turn out badly!)
Then there was the gauntlet laid
down that the plaintiff knew (about the dog’s propensity to be
fierce) because he had personally
been told by her that the dog had
bitten her before. That was recanted by her counsel and
sculpted down in her evidence to
nothing more than conjecture on her
part that her mother, who supposedly knew this, had brought the
plaintiff up to speed in this
regard. The third example was
that her counsel put it to the plaintiff under cross examination that
the damaging causing
incident happened in the exact same way as it
did with her, i.e. that she got a similar aggressive reaction from
the dog when she
was putting a collar and leash on him at the
training school. This misconception was also retracted by her
counsel. Another
example of how different her account was to her
evidence in chief - foreshadowed as it was by the cross examination,
related
to her exaggeration that the dog was now not only prone to
the provocation because of a specific prior experience, but also
generally
vicious. She put a particular spin on his
temperament when she testified: The dog at training school was
“so
much more vicious and bigger” than other dogs
there that she had to take him “right of the outside” in
relation to other dogs there. Supposedly he started showing
such aggression to people coming into contact with him in the
yard
that she and her husband had decided then (seemingly long before the
poodle incident) to already keep him locked at the back
and that only
she and her husband would go into the backyard where he was. But
under cross examination when pressed about her knowledge
of the
dangerous propensity of her dog and what steps she took to ameliorate
the situation she now backtracked and offered that
before the poodle
incident they used to rather “generally” put the dog in
the back, bringing him forth only at night
when he would roam freely
in the whole yard. She added rather self-consciously that we “tried
to, if people came there we
would put the dog away.” Other
epithets used to describe the dog which she slipped in at every turn
were that the dog was
“aggressive”, “had been a
problem”, was “a danger” and that the ultimate
attack on the plaintiff
was entirely expected from the dog because
she believed he was “a vicious dog.”
56.
She was reluctant to make concessions, her
evidence mostly peppered by reservations about the plaintiff or
excuses for her behavior
when it was getting uncomfortable for her.
An example is where despite her late concession that the dog probably
wasn’t
provoked by him putting the collar and lead on him, that
she did however “make him aware that the dog didn’t like
a
collar and lead.” Being pressed under cross examination that
on her own evidence there was no suggestion that the dog didn’t
like a collar and leash she qualified that “I felt that he
didn’t like the collar and the leash on the dog, that’s
how I saw it.” Drawn along with the picture that the dog
had shown no negative reaction (despite her reservations)
when the
chain was put on him, that he had been led through the house on the
lead and shown no negative reaction and that he had
continued to be
walked outside by the plaintiff without incident, he response was to
say “No, not at that time” and
“I couldn’t
see around the corner.” She was not even prepared to concede
without qualification that the plaintiff
had played with the dog
before rather admitting only that, by extension, he played with the
children who in turn played with the
dog. Although eventually
acknowledging that it did happen that the plaintiff and the dog and
her first born son played on the trampoline
together, she resisted
going along with this comfortable scenario by stating that she hadn’t
seen the three of them on the
trampoline “because (the dog is)
a lot bigger than my son, and he tends to bowl people over.”
Even the suggestion
that the plaintiff was not unfamiliar with
the dog was resisted. Despite acknowledging that he touched the
dog and patted
it, her reluctance to simply accept this fact was
evident in her qualification that he hadn’t known the dog for
very long.
57.
While she was prepared to agree under cross
examination that she may not have heard the dog bark next door the
same cannot be said
of her testimony in chief. Under
examination by her counsel she emphatically (ostensibly without any
basis therefor) refuted
this as a possibility:
“He told the
Court that just before the dog bit him, there was a dog barking, a
neighbour dog. Did you hear a dog barking?
--- I didn’t
hear, he had told me after the fact, I think it was in the hospital
that night that the dog next door had barked
and he thought that was
why the dog had turned, but I didn’t hear the dog next door
barking so I can't really say if it did.
He also mentioned
that just before the dog bit him the dog tried to jump against the
wall in the direction where the bark came from.
Did you see
that? --- No, I don’t recall that. I recall the dog
turning when he was taking the collar off, turning
on him and biting
him.
If you say you
don’t recall, do you dispute that the dog jumped at the wall?
--- Yes, I dispute that.”
58.
She could offer no comment to the suggestion that
if she had kept her mother in the loop about being bitten by the dog
it was improbable
that she would not have remembered being told
something as significant as that.
59.
That brings me to the inherent improbability in
the defendant’s case which is this: If the dog was
as fierce and
unmanageable as suggested by the defendant, it is
hardly likely that she and her husband would allow their son, or
their staff,
or visitors access to the dog as had been the custom
(even after the damage causing incident). The fact that the
dogs got
out of the yard when the staff were making their entrance
onto the premises (when it attacked the poodle passing by casually)
shows
a laxity on the their part which would not have been the case
if it was the same menacing animal which the defendant sought to
portray which her and her husband wanted to (seemingly even before
the poodle incident) put down because it was a known danger.
Further, it is most unlikely that the defendant’s mother would
deny knowing that the dog had bitten her daughter (in order
to
support the plaintiff’s case that he was nescient of the dog’s
supposed bad temperament), because the corollary
of that entails the
very frightening prospect (which she on the defendant’s version
must have reconciled herself with) that
the dog could very well have
attacked her daughter or her precious grandchildren, leave alone the
plaintiff. All the indicators
are that the defendant did not really
fear that her dog would attack a human being or pose a danger to
people generally.
60.
I have no hesitation in accepting the evidence of
the plaintiff in its entirety and rejecting that of the defendants
where it is
in conflict with his. Not only is the
plaintiff the more reliable witness, but his evidence fits in
effortlessly with
the probabilities that the dog was not a fierce one
required to be constrained at all cost and that the damage causing
incident
was entirely unexpected. Concerning the criticism of
the probabilities which go against his evidence, as highlighted by
Mr.
Pieterse, these can be safely discounted. Firstly the plaintiff
offered that he knew about the training of dogs not as an indication
that he was prepared to take on the risk which the defendant warned
against on her version, but because he genuinely wanted to
be of
assistance. This was natural given his relationship with the
defendant through her mother (who is obviously very close
to her
daughter) and the fact that the dog was regarded by all as been a bit
boisterous. Secondly he called the defendant
outside to show
her that it was going swimmingly, not because he wanted to refute
that the dog would bite him on the defendant’s
version, but
rather that it was obedient and open to be trained.
61.
I find therefore on the plaintiff’s
version, which I accept, that the
causa
causans
of the damage causing incident was
not the supposed act of provocation on the part of the plaintiff by
putting a collar and leash
on the dog or approaching it where it was
isolated and causing it to be walked by a stranger, but rather that
it was simply roused
by the barking of the neighbour’s dog
which caused it to react in the manner which unfolded. Against
the known standard
of behavior of a domesticated animal, its conduct
at the critical moment can hardly be said to be justifiable or
warrantable.
A reasonable dog in its position faced with the
peculiar circumstances would not have turned on the plaintiff. Our
law requires
a well-behaved dog who is kept as a pet and who knew the
plaintiff and had interacted with him on a frequent basis both in
play
and in the more recent experience of being walked by him without
any negative reaction whatsoever to have suppressed any instinct
to
bite him, regardless of the excitement stimulated in it by the
barking of the neighbour’s dog, even if the plaintiff was
holding the leash restraining him. This is because the operating
cause of the harm is not that the dog was coincidentally restrained
at that moment, but because in attacking the plaintiff it was acting
from inner excitement or vice or wildness which it is not
expected to
revert to. In my view this is one of those classic cases where
the animal is regarded as having acted contrary
to the nature of a
wee-behaved domesticated animal of its kind. I find
therefore that the plaintiff has proved that
the dog acted
contra
naturam sui generis
when it attacked him.
62.
Having preferred the plaintiff’s version,
there is no room for a finding that the plaintiff either was not
lawfully present
in the defendant’s yard or in contact with the
dog when it attacked him. On the contrary, on the facts which I
found
proven, the defendant offered no resistance to the dog being
fetched where he was and being walked. Neither can I find that
the dog was provoked by the plaintiff putting the collar and leash on
him. I agree with Mr Louw that this concern was
opportunistically
presented by the defendant as a mere afterthought
to exonerate her from liability and has no basis in the evidence.
63.
That leaves the defence of
Volenti
non fit iniuria
. In this regard since I
accepted that the plaintiff could have had no inkling that the dog
would attack him, there is hardly
room for the suggestion that he
subjectively appreciated that there was any risk of danger.
Though it may be suggested that
he knowingly and wittingly realized a
threat because he conceded that the training of dogs was fraught with
all kinds of difficulties
and dangers, it must be kept in mind that I
rejected a finding that it was his handling of the dog in training
him that was the
causa causans
of the attack. I accept and reiterate that I find it proven
that the wild and perverse behavior of Zeus, for which there
is no
warrant on the part of a domesticated dog who is supposed to control
his instincts, was the cause of the harm. The defendant
has in my
view failed to discharge the onus of pointing to any other cause.
64.
In consequence then I find in favour of the
plaintiff on all the issues to be decided. Since the negligence
claim was conditional
on my not finding that the dog acted
contra
naturam sui generis
, I need not traverse this
issue any further. I daresay though that I would have been
unlikely to find (on the plaintiff’s
version that the attack
was entirely unexpected) that the defendant was in any way
negligent. As for the defendant’s
premise of Zeus being a
savage dog to her knowledge, such a finding of negligence on her part
may well have been justified because
the circumstances would on an
objective basis have required of her to have expressly forbidden the
plaintiff from having any contact
with her dog from where it was
supposedly isolated in the backyard for everyone’s safety.
65.
In the result I make the following order:
(1)
The issue of the defendant’s liability for
the plaintiff’s damages is decided in the plaintiff’s
favour on the
basis of the plaintiff’s
Pauperien
action;
(2)
The plaintiff is entitled to be compensated for
such damages as he may prove in due course; and
(3)
The defendant is liable to pay the plaintiff’s
costs.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING
: 4 May 2016
DATE OF JUDGMENT:
6 December 2016
Appearances:
For the applicant: Mr. Louw,
instructed by Niehaus McMahon Attorneys, 43 Union Avenue, Selborne,
East London (Ref. Mr McMahon/ap/GT1080)
For the respondents: Mr Pieterse,
instructed by Cliffe Dekker Hofmeyer Inc. c/o Smith Tabata Inc. 12 St
Helena Street, Beacon Bay,
East London, Ref. Candice Thesen)
[1]
The severity of his injuries was demonstrated by
the plaintiff taking off his prosthetic ear when he testified.
[2]
See “Animals”, Lawsa (3
rd
Edition), Vol 1, par 402 and the authorities cited therein.
[3]
1927 AD 310.
[4]
2002 (2) SA 477
SCA at [16].
[5]
at 329.
[6]
See Amler’s Precedent of Pleadings under the heading “
Actio
de Pauperie”
.
[7]
O’Callaghan NO
supra
, SAR & H v Edwards
1930 AD 3
at page 12; Da Silva v Coetzee
1970 (3) SA 603
T.
[8]
O’Callaghan NO
supra
, Da Silva
supra
at 604;
Green v Naidoo
2007 (6) SA 372
(W), at par 22.
[9]
2007 (3) SA 350 (SEC).
[10]
Supra
at [9].
[11]
Supra
at [10]
and [11], footnotes omitted.
[12]
Supra
at [11].
[13]
Supra
at [11].
[14]
Supra
at par 18.
[15]
2002 (2) SA 477
(SCA).
[16]
S
upra
at [13] and [17- 18], O’Callaghan NO
supra
,
SAR & H v Edwards
supra
at 6, Solomon & Another NNO v
De Waal
1972 (1) SA 575
(A) at 582 A – E. See also Green v
Naidoo in which Satchwell J proceeded on the basis that she had to
approach the dog
under scrutiny “as yet another exemplar of a
pet dog”, applying her commonsense and limited experience
to the
questions to be answered.
[17]
See
O’Callaghan NO
supra
at 329 regarding the basis for the limitation of the owner’s
liability to be found in the Digest. There is authority
for
the application in
pauperien
claims of the fundamental principle that no man can recover damages
for an injury for which he has himself to thank. In
other
words is there any unreasonable conduct on his part contributing to
the injury? Examples of limitations are trespass onto
the property
where the injured party is bitten, provocation by that party or his
own negligence. Defences outlined in Lawsa at
par 407 are listed as
vis maior
;
culpable conduct on the part of the injured party, a third party or
another animal; and unlawful presence at the place of injury.
Ironically each of these defences, with the exception of the
volenti
defence, suggest an element of blameworthiness on the part of the
damage causing animal. Either it caused the damage of
its own
accord or blame is removed from it and shifted to another cause.
[18]
Waring and Gillow Ltd v Sherborne
1904 TS 340
at 344;
Loriza Brahman
supra
at 487C-D.
[19]
1984 (4) SA 437 (E).
[20]
[2001] 1 All SA 399
(SCA).
[21]
2004 (5) SA 586
(SCA) at 589G.
[22]
2003 (1) SA 11
(SCA) at 14J-15D.
[23]
The defendant was pregnant at the time of the
incident with her second son who was born afterwards.
[24]
This extract is from the cross examination of her
by Mr Louw.