Fourie v Naranjo and Another (A41/2007) [2007] ZAWCHC 17; [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C) (2 May 2007)

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[2007] ZAWCHC 17
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Fourie v Naranjo and Another (A41/2007) [2007] ZAWCHC 17; [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C) (2 May 2007)

REPORTABLE
JUDGMENT
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
Case
no. A 41/2007
CHRIS FOURIE
Appellant
v
DOMINIQUE NARANJO
First Respondent
IRIS
NARANJO
Second
Respondent
JUDGMENT DELIVERED THIS WEDNESDAY,
2 MAY 2007
CLEAVER
J
[1] This appeal concerns the
application of the
actio de
pauperie
, which,
notwithstanding academic criticism, remains entrenched as a feature
of our law.
[2] The facts are not in dispute. The
appellant, Mr Chris Fourie (‘Fourie’), was the owner of a
rottweiler dog known as Bruno
which on the day in question and at the
premises of Fourie attacked and savaged Mrs Susanna Swart (‘Mrs
Swart’), a domestic servant
in the employ of Fourie.
[3] The first respondent, Dominique
Naranjo (‘Naranjo’) who was 67 years old at the time, hastened to
Mrs Swart’s aid. He succeeded
in distracting Bruno from her, but
sadly for him, he was then attacked and bitten first by Bruno and
thereafter by a second rottweiler
that was on the premises, whose
name transpired to be Cindy.
[4] Naranjo and his wife sued Fourie
as the first defendant and Mr P S Neethling (‘Neethling’), the
second defendant and owner
of Cindy, jointly for damages in the
magistrates’ court, Malmesbury. Naranjo claimed damages for pain
and suffering, medical expenses
and the loss of his shirt and jacket,
while Mrs Naranjo claimed damages for the emotional shock and
distress caused by her witnessing
the accident and for medical
expenses.
[5] The cause of action against Fourie
and Neethling was founded on their ownership of their dogs, alleged
to be domesticated, with
the necessary allegation for the
actio
de pauperie
that the dogs had acted contrary to the nature of their class. In
the alternative and in the event of the court holding that Fourie
and
Neethling were not the owners of the dogs or that the dogs had not
acted contrary to their nature, it was alleged that Fourie
and
Neethling had acted wrongfully and negligently in failing to take
reasonable steps to safeguard persons lawfully on the premises
of the
first defendant when they knew that the animals were at times vicious
and likely to bite people who were lawfully on the premises.
[6] In their pleas Fourie and
Neethling each denied that his dog had bitten Naranjo, averring that
he had been bitten by the other
dog. As to Mrs Naranjo’s claim,
she was put to the proof thereof and each pleaded that in the event
of the court finding that
Mrs Naranjo did witness the accident, they
were not liable in law for her emotional distress and shock in that
the incident could
not reasonably have been foreseen by them.
[7] Fourie and Neethling pleaded
further that in the event of the court finding that their dogs had
bitten Naranjo,
7.1 Naranjo was at all material times
aware that Fourie kept a dog on his property and that such dog or
other dogs on the property
were liable to bite and injure persons who
entered on the property. Since both dogs were openly agitated and/or
aggressive at the
time he entered upon the property, he freely and
voluntarily assumed the risk of injuring himself by entering the
property in spite
of such knowledge.
7.2 Alternatively,
Naranjo was negligent in entering the property and any injuries
sustained were occasioned by his negligence.
7.3 In
the further alternative, Naranjo entered onto the property without
any legal right to be there and the dogs which were openly
agitated
and aggressive at the time, bit Naranjo. Accordingly he had no claim
against Fourie and Neethling.
7.4 It
was denied that the dogs acted contrary to the nature of their class.
[8] By agreement between the parties,
the magistrate who heard the matter was called upon to pronounce only
on the merits of the claim
as provided for in Rule 29 (6) of the
Magistrates’ Court Rules of Act 32 of 1944 as amended. At the
conclusion of the evidence
led on behalf of Mr and Mrs Naranjo,
Fourie’s attorney formally recorded that Fourie admitted that his
dog had bitten Naranjo,
but averred that it was not only his dog
which did so, but Neethling’s dog also.
[9] The magistrate accepted the
evidence of Mr and Mrs Naranjo, found that they had established the
merits of their claims in terms
of the
actio
de pauperie
and awarded
them costs, including counsels’ fees on a higher scale than that
set down by the Magistrates’ Court Act. Having
found for the
Naranjos on this basis, he did not deal with their alternative claims
which, as I have said, were based on negligence.
[10] Fourie now appeals against the
magistrate’s finding. There is no appeal by Neethling.
[11] The
actio
de pauperie
imposes strict
liability on the owner of a domestic animal which injures another
person or property by acting ferociously or contrary
to its nature
and the owner is liable for any damage which may result. Before us
it was submitted on behalf of the appellant that
11.1 Rather than acting contrary to
their nature when the dogs bit Naranjo, they did so because of
extrinsic factors.
11.2 The
presence of Naranjo on the premises of Fourie at the time was
unlawful.
11.3 By
entering on the premises when Bruno was in the process of attacking
Mrs Swart, Naranjo exposed himself to the risk of being
attacked
himself, had knowledge of the harm which could come to him and
consented to such risk when he entered the property. (The
defence of
volenti non fit iniuria
.)
[12] In my view, there is no reason to
question the magistrate’s finding that he could accept the evidence
given by Mr and Mrs Naranjo.
Briefly, that evidence was the
following:-
Naranjo and his wife had been on
friendly terms with their neighbours, the Fouries, for a number of
years. They knew that Fourie
kept the dog known as Bruno and had
been aware of this since Bruno was a puppy. Prior to the incident in
question, Mrs Naranjo had
been very apprehensive about Bruno and had
been so for a considerable time. She had decided not to visit the
Fouries unless she
was met at the gate and accompanied into the house
by Mr and Mrs Fourie for she regarded the dog as dangerous. On one
occasion it
had charged at her from the opposite side of the wire
fence which separated the Naranjo’s property from that of Fourie’s
while
she was weeding in her garden. Naranjo, on the other hand, had
no fear of Bruno. He testified that Bruno had been accustomed to
him
since Bruno was a puppy and had always obeyed him. On occasions when
Bruno had managed to get out of the Fourie’s property
and had
barked at passers by, he had been able to call Bruno and easily put
him back onto his property. This was confirmed by Mrs
Naranjo. He
also testified that on occasion he had fed Bruno while his owners
were away. This evidence was initially denied by
Fourie, but was
later admitted. Mrs Naranjo testified that when her husband had to
visit the Fouries, she would often telephone
them in advance so that
he could be met at the Fourie’s gate and be escorted in to the
property. Naranjo on the other hand, never
personally requested that
he should be met because he did not consider this to be necessary, as
a result of his previous experience
with Bruno. He also testified
that on one occasion at least he had walked his dog together with Mr
Fourie who was walking Bruno.
[13] The Naranjos were having
breakfast on the fateful day when they heard Mrs Swart’s cries as
she was being attacked and savaged
by Bruno. Naranjo immediately
went to her aid, picking up a brick as he made his way to the gate
into the neighbour’s property.
There he found a number of people
standing. He could hear Mrs Swart shouting and immediately went into
the property to help her.
He found her in a sitting position with
Bruno on her with his paws on her shoulders. He could see that Bruno
was biting her. He
called Bruno twice. Bruno momentarily ceased
mauling Mrs Swart and stared up angrily at Naranjo. Naranjo then
threw the brick at
Bruno, but missed him. He faced Bruno for a
little while, but Bruno then rushed towards him and leapt at him. He
put up his left
hand for protection, but the dog, which was said to
weigh between 50kg and 60kg, knocked him down. Clutching the dog
around the
neck, he attempted to strangle it, but Bruno savaged his
left arm. While on the ground, Cindy appeared and attacked him also,
biting
his right hand. Luckily he was able to kick Cindy on the
snout causing her to leave off the attack. Bruno left him and he
managed
to crawl to the gate where he collapsed into the arms of his
wife who had witnessed the incident from the gate. Naranjo had had
no idea that there was a second dog on the property and when Fourie
and Neethling gave evidence, it transpired that Neethling had
brought
his dog Cindy, a bitch, to the property in order for her to be
covered by Bruno.
[14] Naranjo was adamant that when he
ventured into the property he did not anticipate being attacked by
Bruno because of his considerable
experience of and with Bruno in the
past. He believed that Bruno would come to him as soon as he called
him and he felt that he
had to go in order to save Mrs Swart.
CONTRARY TO THE NATURE OF THE CLASS
[15] I have difficulty in following
the submission made on behalf of the appellant, that on the facts the
magistrate ought not to
have found that the dogs acted contrary to
their nature, but that extrinsic factors had caused them to attack
Naranjo. In
Du Plessis v
Nienaber
1
it was held that the
“
action
will fail if the dog was provoked by some negligent act on the part
of the plaintiff or if the dog was moved to behave as it
did by some
extrinsic cause so that its action was not due to vice or inward
excitement. ”
In the heads of argument presented on
behalf of the appellant, it was submitted that the extrinsic factors
which caused Bruno to attack
were that Naranjo called Bruno twice
while Bruno was savaging Mrs Swart, that a delay ensued before he
threw the brick at Bruno whereafter
Bruno attacked Naranjo.
Precisely what occurred when Naranjo threw the brick is by no means
clear. Naranjo says that the brick
missed Bruno. He was not asked
how far away from the dog he was when he threw it or by how much it
missed the dog and I do not consider
that merely because Bruno rushed
at him after the brick had been thrown the inference can be justified
that it was necessarily the
throwing of the brick which caused Bruno
to attack him. It may well be that Bruno simply turned his attention
from Mrs Swart to
Naranjo when he saw Naranjo.
In
Da
Silva v Otto
2
the court suggested that an
objective test of the reasonable dog was to be applied and further
that a dog which was properly domesticated
could be expected to
recognise the authority of man. This is why the court held that even
when the dog had been struck with a type
of sjambok before it bit the
complainant it was held to have acted
contra
naturam suam
as it was
expected to obey the complainant. On this basis at least throwing
the brick at Bruno cannot necessarily or even probably
be said to
have caused the dog to attack Naranjo.
Furthermore, for what it is worth,
Fourie admitted that in attacking Mrs Swart and Naranjo, Bruno had
acted contrary to his nature.
I am therefore of the view that the
magistrate correctly found that the dogs had acted contrary to the
nature of their class.
VOLENTI NON FIT INIURIA
[16] To succeed at this defence, the
appellant had to allege and prove that Naranjo:
16.1 Had full knowledge of the nature
and extent of the possible prejudice to which he was exposing
himself
3
;
16.2 Realised
or appreciated fully what the nature and extent of the harm might
be
4
;
and
16.3 In
fact subjectively consented to the risk
5
.
The three requirements mentioned above
are neatly encapsulated in the following
dictum
of
Innes
CJ in
Waring and Gillow Ltd
v Sherborne
which is often
quoted:
“
[I]t
must be clearly shown that the risk was known, that it was realized,
and that it was voluntarily undertaken. Knowledge, appreciation,
consent – these are the essential elements; but knowledge does not
invariably imply appreciation, and both together are not necessarily
equivalent to consent.”
6
[17] Counsel for the appellant
submitted that the following factors were indicative thereof that
Naranjo in fact foresaw the danger
of venturing into the Fourie’s
yard:-
* He new that Bruno was more
accustomed to Mrs Swart than to him and he must therefore have been
alerted to the fact that something
untoward had occurred to create a
dangerous situation.
* In a statement which he had signed
and which was handed into court it was recorded that he and his wife
considered Bruno to be dangerous.
* He
picked up a brick as he went towards the Fouries’ house which
indicated that he was aware of a potential danger.
I do not consider the fact that Mrs
Swart was attacked to be significant having regard to the speed at
which everything occurred.
In any event, Naranjo’s evidence was
that he was of the view that because of his particular relationship
with Bruno, he would
be able to handle the dog. I also do not
consider that particular emphasis should be placed on the statement
which he signed. Naranjo
is Spanish speaking and no evidence was led
as to who wrote the statement and what role Naranjo had in importing
the information
which appears in the statement. Judging by the
evidence given by Naranjo (through an interpreter)
and Mrs Naranjo it is quite
probable that much of what appeared in the statement emanated from
Mrs Naranjo, who clearly had a different
view about Bruno from that
of Naranjo. In my view, regard should be had to the evidence given
in court and not to what appeared
in the statement.
I
have already remarked that Naranjo’s action in picking up the brick
was never properly examined, nor were his reasons for doing
so. All
that we know is that he testified that he picked up the brick for
“prevention”
,
whatever that may mean.
[18] Counsel for the appellant relied
heavily on the judgment in
Maartens
v Pope
7
in which it was held that because the plaintiff entered the
defendant’s property through a gate, the two doors of which bore a
sign inscribed with the words
“beware
of the dog”
, and the
plaintiff admitted in cross-examination that the signs suggested that
he might be attacked and bitten if he entered the
property, he ran
the risk deliberately and assumed it tacitly. The facts in the
present case are of course quite different for Naranjo
could see that
Bruno was already savaging Mrs Swart and the fact that the Fouries’
gate bore a sign warning persons to be aware
of the dog is not
relevant. Furthermore, what distinguishes this case from all the
other cases to which we were referred is that
Naranjo new Bruno well
and had never personally had any trouble with the dog before. Having
regard to the obvious danger of accepting
the
ipse
dixit
of a claimant against
whom the defence of
volenti
non fit iniuria
is invoked,
it was held in
Santam
Insurance Co Ltd v Vorster
that
the question should be approached on the following basis:-
“
The
inherent difficulty that the central
factum
probandum
– viz. the
consent to the particular risk which occasioned the supervening
injuries – is basically a subjective enquiry can,
I suggest, only
be bridged by way of inference from the proved facts. In the nature
of things, direct evidence will seldom, if ever,
be available; and
manifestly the negative
ipse
dixit
of the claimant
himself can by itself usually carry but little weight. The Court
must, in my view, thus perforce resort first to
an objective
assessment of the relevant facts in order to determine what, in the
premises, may fairly be said to have been the inherent
risks of the
particular hazardous activity under consideration. Thereafter the
Court must proceed to make a factual finding upon
the vital question
as to whether or not the claimant must, despite his probable
protestations to the contrary, have foreseen the
particular risk
which later eventuated and caused his injuries, and is accordingly to
be held to have consented thereto. The foregoing
appears to me to
afford a practical method of dealing with what is admittedly a
somewhat difficult problem, to be in general conformity
with our
decisions in so far as they touch this point (see, e.g.
Mandelbaum’s
case,
supra
at p. 377), and, more particularly, to be in accord both with the
vital conclusion of
SCHREINER
,
J.A
.,
in
Lampert v. Hefer, N.O.,
supra
at p. 509E, that the
applicant
‘
must
have known and appreciated the risk and elected to encounter it’
,
and
with the view of
VAN
WINSEN
,
J.
,
at p. 418A-C of
Rosseau v.
Viljoen
,
supra
,
that an enquiry is,
inter
alia
, required regarding—
‘
the
question of whether – and this is a subjective enquiry – an
inference arises from all the evidence that plaintiff must have
understood and accepted such risk’
.”
”
8
In
Lawrence
v Kondotel Inns (Pty) Ltd
9
the court highlighted that the defence had to establish that the
plaintiff had the necessary awareness of the degree of danger to
which he was exposing himself.
Having regard to the
subjective
nature
of the enquiry, it is in my view clear from Naranjo’s evidence that
he was not afraid and foresaw no risk when he entered
the premises
because Bruno had always obeyed him and he expected him to do so
again. Because of this, the issue of his own safety
never came to
mind and in the result the defence cannot succeed.
NEGLIGENCE
[19] Since the Apportionment of
Damages Act does not apply, negligence on the part of Naranjo would
be a complete defence to the action
de
pauperie.
The facts relied
upon by the appellant to establish this defence are the same facts
which were relied upon for the defence of
volenti
non fit iniuria.
In my
view, this defence must fail for the same reason that the defence of
volenti non fit iniuria
fails. It is common cause that Naranjo did not see Bruno as a danger
to himself (this was conceded by Fourie) and that he had no
reason to
expect that Bruno would not recognise his authority when he entered
Fourie’s property. Judged as to how a
diligens
paterfamilias
,
having the knowledge which Naranjo had, would behave in the
circumstances, it is my view that Naranjo was not negligent in going
to the aid of Mrs Swart.
UNLAWFUL PRESENCE ON THE PROPERTY
[20] On behalf of the appellant it was
submitted that Naranjo was not lawfully on the Fourie’s property
when he was attacked and
that therefore he could not succeed with his
claim. In amplification the following points were made:
20.1 The
incident occurred on Fourie’s property.
20.2 Naranjo
entered the property without Fourie’s permission.
20.3 Throughout their relationship
the Naranjos had visited the Fourie’s property by arrangement only.
20.4 Naranjo
must not merely have had a lawful purpose for being on the premises
(which he did not have), but must also have had
a legal right to be
there and did not have such a right.
Although Mrs Naranjo usually
telephoned the Fouries before she or her husband visited them, there
had clearly been occasions where
Naranjo entered the property without
any prior arrangement to do so.
It was held in
Mehnert
v Morrison
10
that being lawfully at the place where harm is inflicted by an animal
is not an element which is to be proved by a plaintiff in an
action
de pauperie
, but that being
on the premises unlawfully or provoking the animal are elements of a
defence to the action in respect of which the
defendant bears the
onus.
[21] As explained by Neethling
Potgieter and Visser
11
the courts differ in whether a defendant has to prove that a
plaintiff did not have a lawful purpose for being on the property or
a legal right to be there. I agree with counsel for the respondents
that it can hardly be argued that Naranjo did not have a
“lawful
purpose”
to enter the
Fourie’s yard. His purpose was clearly to rescue Mrs Swart.
Although it has been held that only persons who are
on the premises
either with consent or by invitation have a legal right and are
therefore lawfully on the premises
12
,
the court recognised as far back as 1931 that there was room for the
action to apply if it could be said that there had been a tacit
invitation to be present on the property of the owner of the animal
13
.
Academic writers speak of a tacit consent. Bearing in mind that the
onus in this connection rests on the appellant, there has
been no
suggestion from the evidence given by him that had he known of the
attack on Mrs Swart, he would have refused Naranjo permission
to go
to her aid. Indeed, in cross-examination, he conceded that there was
nothing wrong or unlawful in Naranjo’s actions, but
suggested that
he should have armed himself better. In this case it is clear that
Naranjo ventured onto the property in order to
save the life of a
person who was being attacked. At the very least it must therefore
be found that Fourie tacitly consented to
him being on the property.
I am accordingly of the view that the magistrate was correct in
finding that the appellant had failed
to prove that Naranjo was not
lawfully on the premises when the attacks on him occurred.
THE CLAIM BASED ON EMOTIONAL SHOCK
[22] The evidence given by Mrs Naranjo
was not challenged in any way. This was to the effect that she was
so affected by the sight
of her husband being attacked by Bruno that
for some time thereafter she could not sleep, being haunted by the
picture in her mind
of Bruno with blood and pieces of flesh in his
mouth. She developed a stutter which lasted for about three weeks
and her ability
to drive a motor vehicle was also affected. In the
result she was obliged to seek professional help from both a
psychologist and
a medical doctor.
[23] On behalf of the appellant, it
was submitted that Mrs Naranjo’s claim in terms of the
actio
de pauperie
based on
emotional shock was not competent since she was not attacked by
Bruno. This aspect does not seem to have been canvassed
to any great
degree in the court
a quo
and was dealt with in a cursory fashion by the magistrate in the
judgment in the following manner:-
“
Is
the Second Plaintiff entitled to claim damages in terms of the
Actio
de Pauperie
? Both Mr.
Groenewaldt and Mr. Louw were of the opinion that she could not,
because she was a mere bystander, and is this remedy
only applicable
to the person actually and physically injured. I disagree with this
contention. It must be accepted that she suffered
severe distress
and trauma witnessing the savage attack by both dogs on her husband.
Surely this must have caused her tremendous
pain and suffering.
Quite clearly there’s a causal link between the pain and suffering
and the actions of the dogs.”
As
I understand the law, the liability fixed on the owner of an animal
which causes damage to a third party stems from the ownership
of the
animal
per se
and is available to someone who has suffered damage to his/her person
or property caused by the animal. It is trite that an action
in
delict may lie for patrimonial loss or sentimental damage caused by
the intentional or negligent infliction of emotional shock.
As far
as the
actio de pauperie
is concerned, it has been held that a person bitten by a dog is
entitled to damages not only for the direct injury sustained, but
also for subsequent physical disorders caused by the nervous shock
14
.
Writing in Lawsa
15
Van der Merwe and Blackbeard point out that in some cases there is
support for the view that damage may be claimed by a dependant
for
loss of support if an animal has caused the death of a breadwinner.
Neethling Potgieter and Visser
16
are of the view that the extent of the defendant’s liability should
be limited only
in
accordance with the flexible criterion for legal causation as
explained in
S v Mokgethi
17
.
[24] Although an action
de
pauperie
is usually brought
by the person physically
injured by an animal, I am
not aware of any authority which restricts the award of damages
brought in such an action to the person
actually injured. In view of
the development in the law to which I referred, there seems to me to
be no objection in principle to
the action being extended to the
recovery of damage caused by emotional shock.
[25] For the reasons given I would
dismiss the appeal with costs.
______________________
R
B CLEAVER
THRING J
I agree and it is so ordered.
______________________
W
G G THRING
1
1948
(4) SA 293
(T) at 297
2
1986
(3) SA 538
at 542
3
Castell
v De Greef
1994 (4) SA 408
(C) at 425
Santam
Insurance Co Ltd v Vorster
1973 (4) SA 764
(A) at 781
4
Castell
v De Greef
(
supra
)
Durban
City Council v SA Bondmills
1961 (3) SA 397
(A)
5
Malherbe
v Eskom
2002 (4) SA 497 (O)
6
1904
TS 340
at 344
7
1999
(2) SA 883
(N)
8
1973
(4) SA 764
at 781C-G
9
1989
(1) SA 44
at 55B
10
1935
TPD 144
at 149
11
Law
of Delict Fifth Edition p333
12
Veiera
v Van Rensburg
1953 (3) SA 647
(T) at 650-651
13
Watson
v Absche
1931 TPD 499
at 507
14
Creydt-Ridgeway
v Hoppert
1930 TPD 664
15
Vol
I, Second Edition, para 469
16
Law
of Delict Fifth Edition p333
17
1990
(1) SA 32
(A)