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[2016] ZAGPPHC 1246
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Burger v Van der Westhuizen (60668/2015) [2016] ZAGPPHC 1246 (7 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE
NO: 60668/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
7/12/2016
In
the matter between:
W
J
BURGER
PLAINTIFF
AND
G
VAN DER
WESTHUIZEN
DEFENDANT
JUDGMENT
OLIVIER AJ:
I.INTRODUCTION
[1]
This claim is based on an injury which the plaintiff incurred on the
farm of the defendant in the Marble Hall district ("the
farm"),
on 4 August 2012, between 6 am and 6.30 am, when the plaintiff was
attacked by an ostrich ("the incident").
[2]
The court ordered that the merits be separated from quantum, in terms
of Rule 33(4) of the Uniform Rules of Court, at the commencement
of
the trial. The trial proceeded on the merits only.
II.
EVIDENCE
[3]
The following facts are common cause:
(a)
that undomesticated ostriches inhabit the farm of
the defendant (this amounts to an admission that the ostriches on the
farm are
wild)
(b)
That the plaintiff was on the farm during the
weekend in question, at the invitation of the defendant
[4]
The witnesses testified in Afrikaans, but I shall summarise and
discuss their testimonies in English,
PLAINTIFF
[5]
Mr Burger (the plaintiff) testified that he had been on the farm on
several occasions prior to the incident. There was a wide
variety of
wild animals on the farm, including ostriches, giraffes, buck and so
on. He was on the farm over the weekend of the
incident following a
request from the defendant to assist in the capture of wildebeest.
[6]
The plaintiff and the defendant had left Witbank on the Friday
afternoon, prior to the incident. Both had had beer to drink.
When
they arrived at the house, the plaintiff saw an ostrich near the
house. When they got out of the car, it walked towards them,
flapping
its wings. It appeared to be agitated, its legs were red and it
opened and closed its beak. The plaintiff grabbed the
ostrich's head
and pushed it down, before releasing the ostrich and running behind
the bakkie to avoid danger. He testified that
he had told the
defendant to remove the ostrich, as it would hurt someone.
[7]
The plaintiff arose at 5.30 am the following morning. He made coffee
and went outside, but first checked whether the ostrich
was nearby,
but could not see it. Had he spotted the ostrich, he testified, he
would not have left the house.
[8]
He fetched the bakkie and brought it around, and then saw the ostrich
coming towards the bakkie. The ostrich appeared agitated
as it was
flapping its wings. He went from the back of trailer, where he was
standing, to the front of the bakkie, to frighten
off the ostrich,
but the ostrich came towards him. He then ran towards the house, to
escape the ostrich.
[9]
There was an incline close to house and he fell. He lay on his
stomach, before getting up again and running towards the house.
In so
doing, he stepped on a wooden pole with his front foot, incurring an
injury.
[10]
His only escape route was towards the house - getting in the bakkie
or jumping on the trailer was not an option, because of
the position
of the ostrich.
[11]
According to the plaintiff, the defendant did not witness the
incident, nor did anyone else. This was challenged by defendant’s
counsel during cross-examination, as Kotze would testify that he
witnessed the incident.
[12]
During cross-examination, the plaintiff denied that the ostrich had
been there all the time, between the bakkie and house.
He further
denied that he had ever taunted the ostrich or fed it. He had never
been chased by it. The plaintiff denied that he
had had brandy to
drink that morning, or that he had drunk excessively the night
before.
[13]
The plaintiff was further asked whether he had been on the farm since
the incident? He answered in the affirmative, citing
two occasions.
Defendant's counsel put it to him that in examination-in-chief he had
said that he had not been on the farm for
the past four years.
[14]
No further witnesses were called for the plaintiff.
DEFENDANT'S
WITNESSES
[15]
Five witnesses testified, including the defendant.
Mr
Andre de Lange
[16]
De Lange knows the plaintiff as Boera. He did not witness the
incident. He testified that the plaintiff had on occasion lured
an
ostrich with mielies, then grab and push down its head. Upon
releasing the head, the ostrich would stagger backwards.
[17]
He said that the ostrich never came near him or others, and that he
had never seen it chase anyone.
[18]
He commented on the plaintiff's alcohol intake, describing his
drinking on occasion as excessive. He was challenged on his
comments
regarding the alcohol intake of the plaintiff, during
cross-examination. He described average intake as maybe 3-4 brandies
and 2 beers. Excessive drinking would be two to three times more.
[19]
Plaintiff's counsel asked whether he could distinguish between the
various ostriches on the farm and whether they had been
marked. The
answer to both questions was no.
Mr
Hendrik Gerber
[20]
He and the defendant are work friends, not house friends. They both
work for a mining company. Gerber has known the plaintiff
for several
years.
[21]
He and the plaintiff had had a discussion at the end of 2013 or
beginning of 2014, at the workshop, where they spoke about
incident.
The witness testified that the plaintiff had told him that the
incident had been his own fault. The plaintiff told him
that he had
stepped into a hole, and had run towards the deck, not the house.
This version was denied by the plaintiff when put
to him during
cross-examination.
[22]
He testified that he was aware of the ostriches on the farm and at
the house, but never saw any interaction or anyone being
chased by an
ostrich. He could not distinguish between them and does not know
whether they were marked.
Mr
Martin Steyn
[23]
He has known the plaintiff for several years. He had been on the farm
before with his kids. They had fed the ostrich mielies
at or near the
house.
[24]
He had witnessed interaction between an ostrich and the plaintiff. He
reiterated what De Lange had said about the plaintlff
taunting the
ostrich.
[25]
Under cross-examination Steyn could not confirm that the ostrich
which had chased the plaintiff was the same one which he had
allegedly taunted.
Mr
Pieter Kotze
[26]
The witness is a neighbour of the defendant and works as his farm
manager. He testified that there were two females and two
males on
the farm at the time. One moved around near the homestead, would feed
there and then move back into the veld. Three stayed
in the veld and
did not often come near the house. They had no interaction with
people.
[27]
Mr Kotze, who was in a boma on the yard at the time, was a direct
witness to the incident. He testified that he had seen the
plaintiff
come from the side of the bakkie, move around the bakkie, and throw
something at the ostrich, before running towards
the house, falling
down, getting up, and then running towards the house again. When he
fell, the ostrich had looked at him. Mr
Kotze then le and saw nothing
further. He was unaware at the time that the plaintiff had been
injured.
[28]
Under cross-examination, the witness explained that he had not
observed the plaintiff specifically, as he was waiting for the
others, and that he had seen the ostrich walking in the direction of
the house before the plaintiff had thrown something at it.
[29]
He had seen previous interactions between the plaintiff and the
ostrich.
At
the abattoir, the plaintiff said that he had worked with ostriches
before. The plaintiff would put a hat on the ostrich's head,
then
grab it around its neck. He was told to let the ostrich be, as
someone was bound to be injured. Under cross-examination, the
witness
conceded that he could not remember when this occurred.
[30]
He never saw the ostrich chase someone, or be agressive. But during
cross-examination he conceded that he had been cautious
of the
ostrich, as a wild animal remains wild. He could no• remember
whether the ostrich had been on heat, but could not say
that it
wasn't.
Mr
Gert van der Westhuizen (the defendant)
[31]
The defendant testified that he and the plaintiff, who would come to
his farm often, had arrived on farm on Friday, when it
was already
dark. He did not see the alleged altercation with the ostrich that
night upon arrival, as testified by the plaintiff.
[32]
He had never had any problem with any of the ostriches on the farm.
No one had been attacked by an ostrich before. One of the
ostriches
walked around the homestead. The ostriches have since been sold.
[33]
He had witnessed several earlier interactions between the plaintiff
and an ostrich. He had told the plaintiff to leave the
ostriches
alone, as he would make them wild.
[34]
He was not a witness to the incident, but said that the plaintiff had
not only had coffee to drink that morning, but alcohol
also.
Ill.
THE
APPLICABLE LAW
[35]
Plaintiff s counsel contends that strict liability applies, as the
injury was caused by a wild animal which had been brought
onto
the farm by the defendant. Thus, the
plaintiff is required to show only an injury; thereafter, the onus
shifts to the defendant.
This is strict liability. Counsel submits
further that an injury caused directly by a wild animal, and an
injury resulting from
an attempt to escape a wild animal, is equally
actionable.
[36]
It seems clear to me from the evidence that the animal in question
was wild, as conceded by the defendant. It would make no
difference
to the liability of the defendant had it become semi-domesticated or
even domesticated. See
Bristow infra.
[37]
I shall briefly give an overview of the recourse available to a
person injured by an animal, including a wild animal, before
outlining three cases of relevance to this case.
[38]
It is a clear principle of law that "a duty is imposed on the
owner of animals to keep them with due care, so that they
shall not
cause injury to others." See
Spires v
Scheepers
(1883-1884) 3 EDC 173
at 176. This
applies to both domestic and wild animals.
[39]
In the instance where an animal causes damage or injury, three
options, all from common law, are available to a plaintiff,
all of
which impose strict liability.
[1]
They are the
actio
de pauperie,
the
actio de
feris
and
the
actio
de pastu.
If
one of these three is not applicable, the injured party can still sue
using the
actio
legis aquiliae.
[40]
Strict liability is liability without fault. Although controversial,
strict liability is satisfactorily justified by the risk
or danger
theory, which provides that where a person's conduct or activities
causes a considerable increase in the risk of causing
harm or damage,
the person can be held liable for damage ensuing even in the absence
of fault.
[2]
Detrmining whether
an increase of potential risk is 'considerable' will depend on the
legal convictions of the community.
[3]
[41]
The
actio de pauperie
is available to a party against the
owner of a domestic animal which has caused damage. Not only must the
animal be domestic, but
it must also act against its nature
(contra
naturam sui generis).
See
Coetzee and Sons v Smit and another
1955 (2) SA 553
(A) at 558. This is inapplicable in the present
case.
[42]
The
actio de pastu
is
available where a wild anima causes damage or loss by eating plants.
The animal acts of its own volition when causing the damage.
This is
inapplicable in the present case.
[43]
The
actio de feris:
the
aedifes curules
prohibited
wild or dangerous animals being brought into or onto a public place.
If this rule was ignored and the animal or animals
caused damage to
someone, the offender would be held liable for the damage, whether he
be the owner or not.
[44]
Both the
actio de pastu
and
actio de pauperie
are
regarded as still part of our law, but doubts exists about the
actio
de feris.
See
Zietsman
v Van Tonder
1989 2 SA 484
(T) at 493, in
which the plaintiff was attacked by a blue wildebeest on a game farm.
The basis for the injury claim was the aquilian
action. The court
considered the
Bristow
judgment
and concluded as follows: "Die vorm van skuldlose
aanspreeklikheid waarvan hier sprake is, dink ek is nie meer geldig
in ons reg nie’ The court referenced one academic work, but
without giving any further explanation for its view.
[45]
Three cases are of relevance. In
Bristow v
Lycett
1971 (4) SA 223
(RA) the court dealt
with an instance where the plaintiff was attacked by a wild animal,
in this case an elephant. The court succinctly
summarised the legal
position at the time as follows, both in respect of strict liability
and the defences available to the defendant
to escape such liability
(at 234):
"It is now possible
to sum up the law applicable to the question posed in this case,
thus:
(1)
In the case of damage by a wild animal kept n
captivity, negligence on the part of the owner is presumed and it is
unnecessary for
the plaintiff to plead or prove it.
(2)
The defendant, however, can escape liability by
proving either
a.
The plaintiff was a trespasser or the plaintiff
contributory negligence contributed to his injury; or
b.
The damage was caused by the unlawful act of a
third party or the third party's animal; or
c.
The damage was caused by casus fortuitus or vis
major.
(3)
The above principles are not affected by the fact
that the wild animal concerned may have been reduced to a state of
semi domesticity
or that it did not act with any ferocious
intent.
[46]
Therefore, trespassing, contributory negligence, an unlawful act by a
third party or his animal, or casus fortuitous or vis
miajor, would
be defences available to the defendant to escape liability.
[47]
In
Hanger
v Regal and Another
2015
(3)
SA 115
(FB), the most recent South African case to deal with an
attack by a wild l:lnimal, the plaintiff sued for damages for
injuries
sustained on the farm of the defendant, which were caused by
a caged Himalayan bear. The plaintiff relied on the
actio
or
edictum
de feris,
which
would impose strict liability on the defendant. The court, with
reference to case law ad academic authorities, expressed doubt
whether this action still formed part of South African law, and if it
did, whether negligence forms part of this cause of action.
[4]
The court granted absolution of te instance and did not engage with
the legal question any further. There was a concession of
contributory negligence, on the part of the plaintiff.
[48]
The court observed the following about the onus shift and the
defences available to the defendant (at par 6):
"Normally the onus
to prove that the plaintiff negligently contributed to her own injury
or voluntarily accepted the risk of
injury, as a defence, would shift
to the defenant. But on the plaintiff's own version in casu, it is
clear that $he was negligent
and by her own negligence either caused
or contributed to her injuries, and/or that she voluntarily accepted
the risk of injury,
as fully set out below. And once that is the
case, the plaintiff cannot rely on strict liability, but needs to
rely on the lex
Aquilia and prove the grounds for negligence averred
in its particulars of claim."
[49]
The court, on the one hand, expresses doubt about the existence of
the action in South African law; yet it seems to me that
on the
other, it acknowledges and applies the defences to strict liability
[50]
The facts in
Spires supra
are
similar, although not quite on all fours, with the present case. It
involved an ostrich attacking the plaintiff, but in
Spires
the plaintiff was an employee of the
defendant who made bricks on the farm. The plaintiff was warned that
he would need to carry
a branch or the like with which to protect
himself against the ostrich. The court found that he had voluntarily
accepted the risk,
as he had had specific knowledge and express
notice of the risk. His claim for damages for injuries sustained and
medical expenses
incurred, was dismissed.
[51]
The court made clear that contributory negligence would be a good
defence (at 178):
"The defendant has
pleaded that the plaintiff contributed to the injury suffered by his
having needlessly and carelessly exposed
himself to attack. If
proved, this plea doubtlessly would afford a good defence.
Quod
quis ex culpa sua damnum sentit non intelligiter damnum sentire
(Dig., 50, 17, 203)."
[52]
And a bit later in the judgment, the court explained the
circumstances under which the plaintiff in this case had voluntarily
assumed the risk (at 180):
"The plaintiff in
this suit had knowledge and express notice that there was a risk of
his being attacked by the bird, and moreover
expressly agreed to
undertake that risk in consideration of employment on defendant's
farm. By his own contract, therefore, he
has precluded himself from
recovering damages for any injury resulting from the very danger he
agreed to encounter ..."
[53]
The defendant accepts that it has the onus to prove the available
defences, but only if there is causality. Defendant's1 counsel
argues
that the plaintiff had failed to establish causality between the
attack and the injury, and that injury was not caused by
the wild
animal.
[54]
The defendant claims that there is no evidence to suggest that the
ostrich chased the plaintiff during the second sprint towards
the
house, and that the first chase was unconnected to the resulting
injury. There is no causal link between the initial attack
and the
eventual outcome.
[55]
Plaintiff's counsel pointed to the evidence of Kotze Ito show that
the danger had not yet passed when the plaintiff had jumped
up. In my
view it was one continuous event; the fall did not interrupt the
flight, and the resulting injury would not have occurred
had it not
been for the plaintiff escaping the ostrich's attack in the first
place.
IV.
ASSESSMENT OF THE EVIDENCE & THE DEFENCES
[56]
I accept the plaintiff’s version of the incident. There was
only one other witness to the incident, Mr Kotze, whose testimony
corroborated to a sufficient degree that of plaintiffs. Kotze
witnessed the incident, but only from the time when the plaintiff
had
thrown something (a small stone, according to the plaintiff) at the
ostrich. From this point on, Kotze corroborates the version
of the
plaintiff. I have no reason to doubt the plaintiff s version,
considering this confirmation.
[57]
In his evidence in chief, the plaintiff denied that anyone had
witnessed the incident. I do not consider this to be problematic,
as
it is entirely conceivable that the plaintiff was not aware that Mr
Kotze was witnessing the event, as his focus would have
been on
escaping the ostrich. Kotze testified that he left after witnessing
the plaintiff fall, and did not come to the aid of
the plaintiff.
[58]
The evidence of Mr Gerber that the plaintiff told him that he had
been responsible for the injury himself, was sketchy and
lacking in
convincing detail.
[59]
The other witnesses testified mostly regarding the alleged prior
provocation, which I deal with in the next section.
[60]
The defendant made an application to the court at the close of the
plaintiffs case for leave to amend his plea, in term$ of
Rule 28(1),
so as to plead more specifically and in greater detail to the claim
of the plaintiff, based on strict liability. I
denied the
application, on the basis that it would cause prejudice to the
plaintiff, and would likely require the plaintiff and
several other
witnesses to be recalled.
[61]
In his original plea, the defendant did plea as defences provocation,
voluntary assumption of risk and that the animals had
acted in
accordance with their class at the time that the alleged incident
occurred. Contributory negligence was not specifically
pleaded.
[62]
I shall deal with each in turn, even contributory negligence for the
sake of completeness.
Provocation
[63]
Although provocation is not listed as a specific defence to strict
liability arising from the attack of a wild animal in the
case law
above, it is a defence to the
actio de
pauperie
and I shall nonetheless consider it
for sake of completeness. Plaintiff's counsel argued that the defence
of provocation was never
put to the plaintiff during
cross-examination. In any event, as will be seen below, my
consideration of it makes no difference
to the ultimate outcome of
the case.
[64]
Defendant's counsel argues that there was prior provocation on the
part of the plaintiff. The attack should not have come as
a surprise,
considering the taunting of the ostrich by the plaintiff on several
occasions before the incident. The plaintiff was
therefore the
architect of his own misfortune.
[65]
This provocation on past occasions should be sufficient to meet the
requirements for the defence, and immediate provocation
is not
required, says defendant's counsel. It would unrealistic, narrow and
untenable to suggest that provocation could only occur
immediately
prior to the act causing injury. Plaintiff's counsel on the other
hand says that it is only when provocation occurs
immediately prior
to the act causing injury, that it can be regarded as provocation for
purposes of a defence.
[66]
On the facts, even if there was previous provocation, it is unknown
when this occurred. Plaintiffs counsel correctly pointed
out that
there is no evidence of provocation by the plaintiff on the day of
the incident.
[67]
No evidence, expert or otherwise, was presented by the plaintiff that
the attack of 4 August was the result of earlier provocation.
I take
the view that only if the provocation was the immediate catalyst for
the resulting injury, would it qualify as a defence.
In my opinion
there was no immediate provocation.
Voluntary
assumption of risk
[68]
Defendant's counsel argued that the plaintiff was fully aware of the
presence of the ostriches on the farm, as he had visited
the farm on
many previous occasions. The plaintiff knew the risk posed by the
ostrich, and accepted it. The plaintiff was fully
aware that the
ostrich would be in an aggressive state of mind on the morning, as he
had recognised the signs the evening before.
Yet he made the
conscious decision to go outside, well knowing that ostrich was out
there. It is insufficient for him to say that
he had looked for the
ostrich while or before walking to the bakkie. His tacit consent
cannot be invalidated by this. He must have
foreseen the risk and the
associated danger.
[69]
Plaintiffs counsel submitted that the defendant is required to prove
knowledge of the risk, ambit of the risk, and consent
to the risk,
which it failed to do. He pointed out further, correctly in my view,
that knowledge is not the same as assumption
of risk. See
Lever
v Pundy
1993 (3) SA 17
(A).
[70]
In my view, it cannot be said that simply because the plaintiff was
on the farm, he had voluntarily assumed the risk of attack
or injury.
By this reasoning, every single visitor to the farm, including the
witnesses, would have voluntarily accepted the risk.
This was a
private visit. There was no notice board or something similar
indication that the plaintiff would bear the risk of entry.
An
awareness of the Presence of a wild animal, or even previous contact
with such animal, is insufficient to constitute assent
to undergo the
relevant risk. Also; by checking whether the ostrich was there before
he left the house, the plaintiff acted reasonably.
It cannot be said
that simply because he left the house to go outside despite not
seeing the ostrich, .that he had voluntarily
accepted any risk.
Contributory
negligence
[71]
The defendant alleges that the plaintiff had contributed to the
injury suffered, by his having needlessly and carelessly exposing
himself to attack. By opting to run towards the house, he had1
increased the risk of injury. It would have been more reasonable
for
him to have jumped on the trailer, or get in the car.
[72]
The evidence of the plaintiff was clearly that the only escape route
available to him, considering the position of the ostrich,
was
towards the house. The evidence of Kotze did not contradict this. In
my opinion, there is no evidence of contributory negligence.
The
animal had acted in accordance with its class at the time that the
incident occurred
[73]
I fail to see how this could possibly be a defence to liability.
V. CONCLUSION
[74]
The plaintiff succeeds. The defendant has failed to prove any of the
defences.
VI. ORDER
[75]
I make the following order:
(a)
The defendant is liable to pay the plaintiff such
damages as he can prove in due course.
(b)
The defendant is liable to pay the costs of this
action up to the date of this order, including the costs associated
with the employment
of senior counsel.
___________________
M OLIVIER
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, GAUTENG
PROVINCIAL
DIVISION, PRETORIA
Date
of judgment: 7 December 2016
Appearance
on behalf of the Plaintiff: Adv T P Kruger SC Appearance on behalf of
Defendant: Adv J L Myburgh
[1]
For a general discussion of forms of liability without fault
involving animals, see Neethling, Potgieter & Visser Law of
Delict (2014) 7ed 381-386.
[2]
Ibid 380.
[3]
Ibid, referring to Van der Walt 1968 CILSA 55.
[4]
Ibid 385, particularly note 76.