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[1993] ZASCA 48
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Lever v Purdy (472/91) [1993] ZASCA 48; 1993 (3) SA 17 (AD); [1993] 2 All SA 265 (A) (31 March 1993)
Case No 472/91
NORMAN ALLEN LEVER
Appellant
ARTHUR HARRY PURDY
Respondent
IN THE SUPREME COURT
OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
NORMAN ALLEN LEVER
Appellant
and
ARTHUR HARRY PURDY
Respondent
Coram
: JOUBERT A C J et SMALBERGER KUMLEBEN NIENABER J J A et
HOWIE A J A
Heard
: 22 February 1993
Delivered
: 31 March 1993
J U D G M E N T JOUBERT
, A C J:
2
This is an appeal against a judgment of ELOFF J P
(SPOELSTRA and MYNHARDT J J concurring) in the Transvaal Provincial Division,
allowing
an appeal against a judgment granted by ESSELEN J in an action
instituted by the present respondent ("Purdy") against the appellant
("Lever").
The appeal comes to us with special leave in terms of sec 20(4)(a) of Act No 59
of 1959. The judgment of the Court a
quo
has been reported : see
Purdy
v Lever
,
1991 (3) SA 431
(T).
The factual background to this appeal may be broadly outlined as
follows:
1. Lever was at all relevant times the owner of a vicious dog which he
kept at his residence in Johannesburg. While he was temporarily
overseas during
September 1986 a certain Cohen was in occupation and control of his residence
and was also taking care of the dog.
The nature of the legal relationship
between Lever and Cohen
3
is not apparent from the pleadings or the evidence. Suffice it to say that
the question of any vicarious liability on the part of
Lever does not arise in
the present matter.
2. On 3 September 1986 Purdy was bitten by Lever's dog at his residence in
circumstances to which reference will hereinafter be made
in greater
detail.
3. In June 1987 Purdy instituted an action in the Witwatersrand Local
Division against Lever as first defendant and Cohen as second
defendant claiming
damages from them jointly and severally for the personal injuries sustained by
him from the bite of Lever's dog.
The claim against Lever was based on the
actio de pauperie
in that he was the owner of the dog which acted
contrary to the nature of its class and from inward vice when it injured Purdy.
Several
defences were raised by Lever in his plea but the defence relevant
for
4
purposes of this appeal was that
Purdy was bitten by the dog "as a result of the second defendant's negligence".
The claim against
Cohen was founded on the
actio leqis Aquiliae
for his
negligence in failing "to lock up the dog in the backyard of the residence, or
to otherwise safely secure the dog, and in
permitting the dog to be in the
vicinity of the gates at the entrance to the said residence, unattended at about
6.30 p m on the
day in question" i.e. upon Purdy's pre-arranged arrival at the
residence.
4. The first trial came before MORRIS A J in the Witwatersrand Local
Division in March 1989. Evidence was led and after judgment was
reserved, but
before delivery thereof, the Judge passed away.
5. Subsequently in terms of a settlement with Cohen, Purdy decided not to
proceed with his claim against Cohen who was exonerated
from the obligation of
making any payment to him.
5
6. The second trial commenced
de novo
before ESSELEN J on 5 March
1990. At that stage by agreement between the parties the quantum of the damages
had been fixed at R21
382-71. Purdy was the only witness who testified. ESSELEN
J found that Purdy established the essentials of the
actio de pauperie
against Lever, but he held that Lever "proved the defence which
in casu
is available to him, namely culpable conduct on behalf of Cohen, the second
defendant". Such defence, it was held absolved Lever
completely from pauperien
liability to Purdy. He accordingly granted an order of absolution from the
instance with costs which included
the costs of the previous hearing before
MORRIS A
J.
7.
On
12 April 1990 ESSELEN J dismissed the application of Purdy for leave to
appeal.
8.
On 13 August 1990
Purdy was in terms of sec 20(4)(b), read with (2)(a) and (3)(c), of Act No 59 of
1959
6
granted leave to appeal to the Full Bench of
either the Transvaal Provincial Division or the Witwatersrand Local Division as
directed
by the Judge President. 9. The Full Bench of the Transvaal Provincial
Division, the Court
a quo
, allowed Purdy's appeal by setting aside the
judgment of ESSELEN J and by substituting for it judgment in favour of Purdy
against
Lever in the agreed amount of R21 382-71 with costs as set out in its
reported judgment (p 438 F-G).
I now turn to consider the relevant circumstances regarding the dog's
attack on Purdy. According to the latter's uncontroverted evidence
he was at the
relevant time in business in connection with the sales and repairs of television
sets and video recorders. He knew
Cohen with whom he had had previous business
dealings. At approximately lunch time on 3 September 1986 they were in
telephonic communication
with each other. Cohen requested him to visit him at
Lever's house in order to adjust his video
7
recorder and television set. He informed Purdy
that he was looking after Lever's house during his absence overseas. He also
mentioned
that there was a vicious dog on the premises. Purdy requested him to
lock it away before his arrival at the house. Their arrangement
was that Purdy
would be calling on him between 6.30 p m and 7 p m. No instructions were given
to Purdy as to how he should proceed
onto the premises. When he arrived as
agreed it was dusk. After parking his motor car near the front wrought iron gate
which was
partly open he hooted to announce his arrival. He alighted from his
vehicle and proceeded to walk through the wrought iron gate along
a fenced-in
passage towards a closed wire mesh gate consisting of two sections where he
stopped on its outside. He leant over one
of the sections and placed his right
hand on it whereupon he shouted for Cohen. Until then there was no sign of any
dogs on the premises.
Nor were any dogs barking at him. Suddenly a dog appeared
on the opposite side of the wire mesh gate and
8
seized his right hand in its teeth. A tug of war
ensued between them. The dog succeeded in pulling him through the two sections
of
the wire mesh gate which had opened. Purdy managed to hit the dog on its nose
with his left hand whereupon it let go of his hand
but bit him on his left
thigh. Purdy closed one section of the wire mesh gate on the dog's nose. That
action resulted in the dog's
letting go of his left thigh. Purdy succeeded in
moving to the outside of the two sections of the wire mesh gate while the dog
continued
to face him across the gate. At that stage Cohen arrived at the scene
and invited Purdy into the house. The dog behaved perfectly
in a natural manner
in the presence of Cohen without causing any further trouble to Purdy. It was
common cause in this Court that
ESSELEN J correctly found that Purdy established
the essentials of the
actio de pauperie
against Lever. The latter,
however, challenges in this appeal the correctness of the finding by the Court a
quo
that Lever could only escape
pauperien
liability if
the
9
negligence of Cohen could be said to have excited
or provoked the animal, or to have caused it to bite Purdy (p 438 D-E).
Justinian's Roman law relating to pauperien liability of the owner of a
domesticated animal, which by acting contrary to the nature
of its class
(
contra naturam sui generis
) and from inward vice (
fera mota
)
caused damage, as subsequently developed in the Middle Ages until the second
half of the 15th century, was received in the Netherlands.
See De
Blecourt-Fischer,
Kort Begrip van het Oud-Vaderlands Burgerlijk Recht
,
7th ed p 19. As part of Roman-Dutch law the law of pauperien liability regarding
the damage done by domesticated animals was introduced
into South Africa.
According to the law of South Africa two important modifications were effected.
The first related to the principle
of noxal surrender (
noxae deditio
)
which enabled an owner to avoid liability by surrendering the animal to the
injured party while the second concerned that of
noxa caput
10
sequitur
according to which the owner at
the time of
litis contestatio
was liable, not necessarily the owner at
the time of the injury. These two principles were held by this Court to be
obsolete. See
O'Callaqhan N O v Chaplin
,
1927 A D 310
and
South
African Railways and Harbours v Edwards
,
1930 A D 3.
Reliance on the
negligence of a third party as a defence to the
actio de pauperie
is
res nova
as far as our case law is concerned. It now remains to consider
our common law on this particular issue.
Justinian's law of pauperien liability is treated rather cursorily in
Inst 4.9 pr but in somewhat greater detail in D 9.1. The latter
source deals
inter alia
with those instances in which the culpable conduct of a third
party causes a domesticated animal to act contrary to the nature of
its class in
injuring the injured victim. In such instances the owner of the animal was
exonerated from pauperien liability to the
victim. The latter could, however,
claim damages from the third party under the
lex
11
Aquilia
. The texts in question may be
analysed and
classified in two categories, namely:
First Category
This category comprises those instances in which a
third party, as a mere outsider through his culpable conduct
caused the animal to inflict the injury upon the victim, e.g.
where the animal was provoked by him (D 9.1.1.6); or where he hit or
wounded the animal (D 9.1.1.7).
This first category of texts may be supplemented by texts dealing with
Aquilian liability of such a third party, e.g. where the third
party scared a
horse which a slave was riding with the result that the slave was thrown into a
river and died (D 9.2.9.3); and where
someone annoyed a dog and accordingly
caused it to bite the victim (D 9.2.11.5).
The distinguishing feature of this category is that the culpable conduct
of the third party consisted of some positive act such as
provoking, striking,
wounding, scaring or annoying the animal.
12
Second Category
This category relates to those instances in
which a third
party
in charge or control of the animal
by his
negligent conduct failed to prevent the animal from injuring
the victim. The relevant texts are the following:
D 9.1.1.4 (Ulpianus) : - - - quod si propter loci iniquitatem
aut propter culpam mulionis, aut si plus iusto onerata quadrupes in
aliquem onus everterit, haec actio cessabit damnique
iniuriae
agetur.
Translation by Watson et
alii
:
"On the other hand, if an animal should upset its load onto someone
because of the roughness of the ground or a mule driver's negligence
or because
it was overloaded, this action will not lie and proceedings should be brought
for wrongful damage." I underlined the word
injuriae
because the
medieval
Glossator AZO (± 1150-1230 A D) wrote the following gloss
on
this text to elucidate the word in its context, viz. that
an
actio in factum
or
actio leqis Aquiliae utilis
lies
against the muleteer or the person whose negligence caused
the damage, since
he who provided the opportunity for the
13
damage to be done is deemed to have caused
it
. The gloss
reads as follows:
Iniuriae. id est in factum, vel utili Aquilia contra mulionem, vel eum,
cuius culpa damnum est datum,
qui enim occasionem damni dans
,
damnum
dedisse videtur
. (I may add in parenthesis that the
lex Aquilia
applied where
the damage was directly caused by the body of the wrongdoer
to the body of the injured person or to the damaged thing
(
damnum corpore corpori datum
). Where the injury was,
however, indirectly caused by the wrongdoer to the body of
the injured person or thing (
damnum corpori non corpore
datum
) the Praetor granted an
actio utilis
or
in
factum
in
order to extend Aquilian liability to such instances (ad
exemplum legis Aguiliae
, D9.2.53)). See Buckland,
A Text-Book of Roman Law from Augustus to Justinian
, 3rd
ed.
p 589.
D 9.1.1.5 (Ulpianus) : Sed et si canis, cum duceretur ab
aliquo, asperitate sua evaserit et alicui damnum dederit : si contineri
firmius ab alio poterit vel si per eum locum induci non
14
debuit, haec actio cessabit et
tenebitur qui canem tenebat. Translation by Watson
et alii
:
"Take the case of a dog which, while being
taken out on a lead by someone, breaks loose
on account of its wildness and does some harm
to someone else : If it could have been better
restrained by someone else or if it should
never have been taken to that particular
place, this action will not lie and the
person who had the dog on the lead will be
liable."
It is the
actio de pauperis
which will not lie against the
owner, while
the person who was in control of the dog and
whose negligence caused
the injury will be liable under the
actio leqis Aquiliae utilis
.
The second category of texts clearly
establishes
the principle of law that the
owner of a domesticated animal,
which
contra naturam sui generis
harmed a victim, may
15
successfully avoid pauperien liability by proving
as a
defence that the harm was caused by the
controller's
negligence in his control of the animal.
These texts must, however, be read in conjunction
with those texts which shed light on the Aquilian liability
of a controller of a domesticated animal. The texts in
question are the following:
D 9.2.8.1 (Gaius): Mulionem guoque, si per imperitiam
impetum mularum retinere non potuerit, si eae alienum hominem
obtriverint, vulgo dicitur culpae nomine teneri, idem dicitur et si
propterinfirmitatem sustinere mularum impetum non potuerit : nee videtur
iniguum, si infirmitas culpae adnumeretur, cum affectare
quisque non debeat, in
quo vel intellegit vel intellegere debet infirmitatem suam alii periculosam
futuram. idem iuris est in persona
eius, qui impetum equi, quo vehebatur,
propter imperitiam vel infirmitatem retinere non potuerit. Translation by Watson
et alii
: "Furthermore, if a mule driver cannot control his mules because
he is inexperienced and as a result they run down somebody's slave,
he
is
16
generally said to be liable on grounds of
negligence. It is the same if it is because of weakness that he cannot hold back
his mules
- and it does not seem unreasonable that weakness should be deemed
negligence; for no one should undertake a task in which he knows
or ought to
know that his weakness may be a danger to others. The legal position is just the
same for a person who through inexperience
or weakness cannot control a horse he
is riding." D 9.2.11.5 (Ulpianus) : Item cum eo, qui canem irritaverat
et effecerat, ut aliquem morderet, quamvis eum non tenuit, Proculus
respondit Aquiliae actionem esse : sed lulianus eum demum Aquilia
teneri ait,
qui tenuit et effecit ut aliquem morderet : ceterum si non tenuit, in factum
agendum.
Translation by Watson
et alii
: "Again, Proculus gave an opinion
that the Aquilian action lies against him who, though he was not in charge of
the dog, annoyed
it and thus caused it to bite someone; but Julian says the lex
Aquilia only applies to this extent that it applies to him who had
the dog on a
lead and caused it to bite someone; otherwise, if he were not holding it, an
actio in factum
must be brought."
17
Inst 4.3.8 : Impetu quoque mularum, quas mulio
propter
imperitiam retinere non potuerit, si servus tuus oppressus fuerit, culpae
reus est mulio. sed et si propter infirmitatem retinere
eas non potuerit, cum
alius firmior retinere potuisset, aeque culpae tenetur, eadem placuerunt de eo
quoque, qui, cum equo veheretur,
impetum eius aut propter infirmitatem aut
propter imperitiam suam retinere non potuerit. Moyle's translation:
"- - and similarly, if your slave is run over by a team of mules, which
the driver has not enough skill to hold, the latter is suable
for carelessness;
and the case is the same if he was simply not strong enough to hold them,
provided they could have been held by
a stronger man." I indicated
supra
in discussing the first category
of texts that the culpable conduct of the third party
consisted of some
positive act
on his part, such as
provoking, striking, wounding, scaring or annoying the
animal causing it to act
contra naturam sui generis
and
to
injure the victim.
18
What is the causative position concerning the
negligent conduct of the third party in the second category of texts ? Here, the
third
party happens to be
in charge or control
of the animal. Take the
instance of a muleteer who is in control of his team of mules which he, on
account of his inexperience or
weakness, cannot restrain from running away
(
impetus
) and injuring the victim.
His failure in exercising proper,
i.e. reasonable, control over the mules provided them with the opportunity to
continue their flight
and run over the victim
. He is guilty of negligent
conduct which resulted in the injury to the victim. He will incur Aquilian
liability whereas the owner
of the mules will be exonerated from pauperien
liability. The
muleteer did not by any positive act cause the mules to run
away
. The question of causality in regard to the conduct of the controller
or handler of a dog is determined in the same manner by application
of the same
legal principles. By his negligent conduct he fails to exercise proper,
i.e.
19
reasonable, control over the dog in his care. He
accordingly provides the dog with the opportunity to injure the victim. As a
result
of his negligent conduct he fails to prevent the dog from biting the
victim.
He did not by any positive act cause the dog to bite
. His
negligent conduct likewise renders him liable under the
Lex Aquilia
,
whereas the owner of the dog will be exonerated from pauperien
liability.
I now turn to consider the Roman-Dutch law. Unfortunately there is a
dearth of Roman-Dutch authority on the nature of the culpable
conduct of a third
party in control of the owner's domesticated animal which injured the victim.
The Dutch jurists, without any significant
discussion or original contribution
of their own, adopted the principles of Roman law as discussed
supra
.
Damhouder (1507-1581) in his
Practycke in Criminele Saken
, 1650,
142 Capital nr 3 concisely states the following:
Van ghelijcken, indien dat yemandt bevolen
20
waer
te bewaren
eenen Hondt, oft ander Beeste, ende dat hy sulcken
Hondt, oft ander Beeste, van selfs ontbonde, ende uyt quaetheydt liet loopen,
oft dat sy van selfs ontliepen
,
door de qroote neqligentie
,
ende roeckeloosheydt van den bewaerder
, ende indien dat sulcken Hondt of
Beeste,
alsoo yemandt quetste
,
in dit cas
,
soude den bewaerder
oft Knape
in de schuld vallen
, ende te
punieren zijn
,
ende
niet den Meester
. (My underlining). Paul Voet (1619-1667), the father of the
famous
Johannes Voet, ad Inst 4.9.5 affirms
the approach by Roman
law to the Aquilian liability of a third party as controller
or handler of a dog. The conduct of the controller amounts
to negligence because he failed to restrain the dog from
biting, or led it to a place where he should not have taken
it. His passage reads as follows:
An non ergo si canis pauperiem dederit, actioni directae locus erit? Id
videtur velle Zoes. D hoc tit. verum contra expressum juris
textum. Nam in D
9.1.1.5 statuitur hanc actionem, scil, de pauperie directam cessare; &
nihilominus eum qui canem tenebat
21
obligari. An Pesulonia vel Pesulania, vel ut alii
consent Solonia lege ? Cujac. ad Paul 1 sent. tit. 15. An potius lex Aquilia ?
Quae
postrema sententia probabilior,
cum damnum ejus culpa acciderit
,
qui canem vel non retinuit satis
,
vel per eum locum duxit
,
per
quern duci non oportuit
. (My underlining). Van Leeuwen (1626-1682) in his
C.F. 1.5.31.3 (as translated by Margaret Hewett, 1991) makes the following
concise
observations regarding pauperien liability, which are based on the
principles of Roman law as expounded in the two categories of
texts
(
supra
) :
"I said
aut culpa hominis
(or negligence on the part of a human
being) because if there is negligence on the part of the owner or
of anyone
else
, this action lapses and a suit is brought under the
Lex Aquilia
,
for example if a mule does damage
because of
the uneven-ness of the road,
or
the negligence of the muleteer
, or because it was too heavily loaded
or was provoked by someone, or
if the animal acted in some way on account of
human inexperience or negligence
or when aroused by pain (D 9.1.1.4, D
9.1.1.5, D 9.1.1.6, D 9.1.1.7, D 9.2.2 pr et seqq, D 9.2.27.5). (My
underlining).
22
Johannes Voet (1647-1713) in his
Commentaries
ad
Pandectas
book 9 title 1
founds his entire comment in
respect of pauperien liability on the
principles of Roman
law, as elaborated on
supra
. In 9.1.6 he states
inter alia
the following (which is almost verbatim
derived
from D 9.1.1.5 (
supra
)) in relation to injury inflicted by
a
dog in the control of a third party as controller or
handler:
Sed &, si canis,
cum duceretur ab abliquo
,
asperitate sua evaserit, & alicui damnum
dederit, vel oves, gallinas, anseres
alienas occiderit,
si contineri firmius ab alio potuerit
, vel per
eum locum duci non debuerit, cessante hac actione de pauperie, contra ducentem
utili Aquiliae locus est, D 9.1.1.5, D 9.2.11.5.
Gane's translation:
"Then again, if a dog,
when he was being led by someone
, escaped
through his own rough temper and did damage to somebody, or killed another
person's sheep, hens or geese,
and if he could have been more firmly held in
by another
or ought not to have been led over such a spot, this action on
pauperies
falls
23
away but there is room for a
beneficial
Aquilian action
against the leader
." (My
underlining). In this passage Voet endorses the views expressed by
Ulpianus
in D 9.1.1.5, read with D 9.2.11.5, viz. that a third
party
in control of a dog, which owing to his negligent
conduct injures a
victim, is liable under the
Lex Aquilia
,
whereas the owner of
the dog will be exonerated from
pauperien liability. These texts, as
I indicated
supra
,
fall in the second category of texts, and the remarks I made
supra
concerning the causality of the negligent conduct
of
the controller of the dog and the injury or harm to the
victim are also applicable here. The negligent conduct
amounts to a failure on the part of the controller to
exercise proper, i.e. reasonable, control over the dog in
his care. That negligent conduct provided the dog with the
opportunity to injure the victim.
The controller did not
by any positive act cause the dog to bite or harm the
victim
.
Kersteman (1728 - ± 1793) in his
Aanhangzel tot
24
het Hollandsch Rechtsgeleerdt Woordenboek
,
1772, vol 1 p 292 seqq. s v
Damnum ab Animalibus Datum
furnishes us with
a translation in Dutch of Voet 9.1, which includes Voet 9.1.6, without any
original comment or contribution of
his own. We are concerned with the
application of these principles to the facts of the present matter. It is not
necessary to consider
whether they have any wider application. Cohen was at all
relevant times in charge of and had control over the dog. He knew the
propensities
and nature of the dog. He even mentioned them to Purdy whom he led
to believe that he would lock the dog away when Purdy called at
the premises.
Moreover, he knew when Purdy would arrive as pre-arranged by them. In the
circumstances he owed Purdy a legal duty
to take reasonable precautionary
measures to contain or restrain the dog from biting him. Cohen's failure to
adopt any reasonable
precautionary measures in the circumstances amounted to
negligent conduct. He accordingly provided the dog with the opportunity
to
25
injure Purdy and failed to prevent it from doing
so. According to the second category of texts (
supra
), which Voet 9.1.6
endorses, Cohen as
controller
of the dog was in the circumstances guilty
of
negligent conduct
which
resulted in
the injury to Purdy
despite the fact that he did not by any positive act cause the dog to bite
Purdy
. Cohen's Aquilian liability to Purdy afforded Lever, the owner of the
dog, a defence which exonerated him from pauperien liability
to Purdy. See D
9.1.1.4, D 9.1.1.5, Voet 9.1.6, Damhouder
loc.cit
., Paul Voet
loc.ci
t.
The Court
a quo
, in my judgment, erred in deciding that only the
first category of texts afforded an owner exemption from pauperien
liability.
Lever in my judgment therefore succeeded in establishing his
defence.
In the result the appeal must succeed.
The appellant disavowed any order for costs
in this Court and in any of the courts below.
26
The following orders are granted :
1.. The appeal is upheld. 2. The following order is to replace the order of
the
Court
a quo
:
The appeal is dismissed.
C. P. JOUBERT A C J.
SMALBERGER J A Concur. HOWIE A J A
JUDGMENT
KUMLEBEN JA
/...
1.
I have had the privilege of reading the judgment of my Brother Joubert
(the "other judgment"). In it the facts giving rise to this
dispute are fully
set out. I agree that the appeal should be allowed. I reach this conclusion,
however, on a somewhat different approach
and for reasons which in certain
respects differ from those relied upon by my learned colleague. Hence this
separate judgment.
The fact that a third party has incited or provoked an animal to behave
contra naturam sui generis
for instance, by striking, wounding, scaring
or annoying it, constitutes a valid defence to a claim based on the
actio de
pauperie
. In such a case the conduct of the third party is the
causa
causans
of the harm suffered and not any vicious propensity inherent in the
animal concerned. This (the "established exception") is an acknowledged
ground
exempting the
2/...
2. owner from pauperien liability (D 9.1.1.6 and 7;
O'Callaqhan, N.O. v Chaplin
1927 AD 310
at 329; and
the judgment of the court a,
quo
at 438D).
A further qualification (the "wider
exception")
is at this stage controversial. 1 refer to
the question whether
fault on the part of a third
party, short of conduct falling within
the established
exception, which causatively contributes to
injury
arising from an animal acting
contra naturam
sui
generis
, is similarly an answer to a pauperien
claim.
For instance, the negligence of a visitor to
premises
who leaves a gate open giving access to a yard
within
which a vicious dog is confined. There is
authority
favouring or pointing towards the recognition of
this
exception. (See
van Leeuwen
C.F. 1.5.31.3;
Le
Roux
and Others v Pick
1879 Buch 29 at 37; and Joubert
The
Law of South Africa
Vol 1 para 378 page 225.)
However,
3/...
3. this question as far as this court is concerned,
remains an open one and for the purposes of this appeal need not be
decided.
The pertinent and only question calling for decision in this case is
whether the culpable conduct of a person to whom the owner entrusts
custody and
control of an animal relieves the owner of liability which would otherwise by
virtue of the
actio de pauperis
have existed (the "exception in issue").
This exception has thus two components: the delegation of control to some person
and causative
negligence on his part.
The Justinian rubric (D 9.1.) in which the
actio de pauperie
is
discussed, after relating the history and explaining the nature of this action,
recites a miscellany of instances giving rise
to such an action, interspersed
with illustrations of
4/...
4. situations in which the injured party is restricted
to the Aquilian remedy. From these examples one must attempt by deduction to
discern the nature and extent of any qualification of pauperien liability
recognised in Roman Law. As regards the exception in issue,
D 9.1 .1 .5 is to my
mind significant. It is cited in the other judgment, but for ease of reference I
repeat Watson's translation
of this text:
"Take the case of a dog which, while being taken out on a lead by
someone, breaks loose on account of its wildness and does some harm
to someone
else: If it could have been better restrained by someone else or if it should
never have been taken to that particular
place, this action will not lie and the
person who had the dog on the lead will be liable."
It is true that this example does not expressly state
that the owner of the dog
entrusted it
to the person
leading it though this would seem to be a justifiable
inference. But, even if it is to be given the wider
5/...
5. connotation, it is the negligence of the person
who is in control of the dog
which results in the pauperien action not
being available to the injured person. Thus on either interpretation I consider
that Mr
Cameron, who appeared on behalf of the appellant, was justified
in relying on this example in support of the exception
in issue. In regard to D 9.1.1.4, if it can be taken to justify or
confirm the wider exception it would a
fortiori
serve as further
authority in favour of the exception in issue. I, however, cannot thus construe
it. It reads - again Watson's translation
- thus:
"Therefore, as Servius writes, this action lies when a four-footed animal
does harm because its wild nature has been excited, for
example, when a horse
given to kicking actually kicks someone or an ox likely to gore tosses someone
or mules cause damage cm account
of some unusual vice. On the other hand, if an
animal should upset its load onto someone because of the roughness of the ground
or
a mule driver's negligence or because it was overloaded, this action will not
lie and
6/...
6.
proceedings should be brought for wrongful
damage."
The first sentence of this text plainly deals
with
pauperien liability. The second, as clearly and in
stated contrast, gives an illustration of Aquilian
liability. One cannot deduce that the animal or mule in
this second illustration acted
contra naturam sui
generis
: in fact the opposite is the more natural
inference. That being the case the pauperien action
will not lie, not because the Aquilian remedy is
available, but because the animals behaved
secundum
naturam sui generis
. I cannot accept in reference to
this text that the
mere fact
that an injured party has
an independent cause of action (the Aquilian one)
against a wrongdoer
ipso
jure excludes another
remedy (the pauperien action) to which an injured
person is in law entitled. After all, in the parallel
7/...
7. situation of vicarious liability, the actions
against both the master and the servant co-exist.
As regards our common law writers, I endorse the observation of Eloff DJP
in the judgment of the court a
quo
at 437 A - B that they, following the
precedent of the Justinian texts on which they comment, are casuistic in their
approach. No
explicit statement of exceptions to pauperien liability is laid
down by them nor is one manifestly discernible. As pointed out in
the other
judgment, there is a general dearth of Roman Dutch authority dealing with the
limits to this cause of action. However,
having said this, I respectfully agree
that the passage cited in that judgment from Damhouder's.
Practycke in
Criminele Saken
142 Capitel no 3 and Johannes Voet
Commentarius ad
Pandectas
9.1.6 are in point and can validly be relied upon as authority for
the recognition of the
8/...
8.
exception in issue.
In the absence of further authorities, it
would seem that the court a
quo
relied mainly on two other
considerations. (i) What was said - or not said - in
O'Callaghan
's case
(
supra
) and in
South African Railways and Harbours v Edwards
1930
AD 3
; and (ii) the so-called "risk principle".
At page 433H - 434H the learned judge said:
"The authorities, many of which are collected and analysed in the
decisions in
O'Callaghan NO v Chaplin
1927 AD 310
and
South African
Railways and Harbours v Edwards
1930 AD 3
, indicate that the liability of
the owner of a domesticated animal which causes damage acting from some inner
excitement or vice
is based on mere ownership, and not on fault on the part of
the owner. It is a case of strict liability. In
O'Callaghan
's case
supra
at 329 Innes CJ summarised the position thus:
'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 his negligence contributed to his own injury, is liable, as
9/...
9.
owner, to make good the resulting damage.'
He adds
(at 329 - 30):
'The conclusion is satisfactory for two reasons especially. In the first
place it provides a remedy in cases where otherwise persons
injured would be
remediless. Instances must occur where a dog, a bull, or other domesticated
animal inflicts damage under circumstances
which make it impossible to bring
home negligence to the owner. Yet of two such persons it is right that the
owner, and not the innocent
sufferer, should bear the loss. And in the second
place the adoption of
culpa
as the sole basis of liability would
inevitably lead us towards the
scienter
test - a doctrine definitely
ruled out by
Graham v Viljoen
(Buch 1878 p 126) and which it is common
cause is not the test which our law applies in cases of this kind. Because it
would be difficult
to hold a man negligent who had no knowledge of the vicious
propensities of his dog, unless it were held that the mere attack implied
negligence - res
ipsa loquitur
- which might in its practical application
approximate to the ownership basis, but which would not equally be defensible in
law'.
It is significant that while the Chief Justice
specially mentions that if the injured person either provoked the attack or by
his
own
10/...
10.
negligence contributed to his own injury he has no claim, it is not said
that the negligence of another may affect the owner's liability.
In the
South African Railways and Harbours
case the Chief Justice
ventured a further summary of 'the relevant principles of our law laid down in
the more authoritative cases'.
Of those the following should be quoted (at 10 of
the report):' [Five of the ten principles summarised by de Villiers CJ are then
cited by Eloff DJP and his judgment continues.]
It is again to be noted that while the role of a third party is specifically
mentioned as something which could affect the claim of
the injured party, the
Court said that it is only when that third party provokes the animal that the
plaintiff's claim might be defeated.
Negligence of a third party is not
mentioned as a defence."
Thus the absence of any
reference to a situation falling within the purview of the exception in issue is
regarded by the court a.
quo
as some indication that this exception ought
not to be approved. But in the first-quoted extract from
O'Callaghan
's
case, I do not understand Innes CJ to have pronounced exhaustively
11/...
11.
on the
acto de pauperie
. And as regards the
other
decision - as de Villiers CJ himself prefaces - his
summary of principles is based upon what has been
decided "in the more authoritative cases" none of
which, as far as I am aware, adjudicated upon the
exception in issue. In both these cases the courts
were concerned with the facts before them, facts which
do not correspond with those in the present case. For
this reason the validity of the exception in issue did
not arise and any general pronouncement in these
judgments cannot be taken to detract from its
acceptance. In the circumstances I do not consider that
these earlier decisions of this court lend weight to
the argument that the exception in issue ought not to
be acknowledged.
At page 438 C - D of the judgment of the court a
quo
it is stated
that:
12/...
12.
"The policy of the law in imposing strict liability on an owner of a
domestic animal is that he creates a source of danger and should
be answerable
even if the neglect of another contributes to the event causing damage. Only
conduct of a third party which occasions
the animal to behave in the manner
complained of will relieve him of liability." (438C -
D)
This principle is likewise relied upon
in a note by
Prof C G van der Merwe on the decision of the court
a
quo
, which decision the writer endorses:
see
[1992] 109
South African Law Journal
398
particularly
at 401 and 402. It is true that the creation of
risk
is a reason put forward as justification for
strict
liability featuring in our law in
certain
circumstances. (On risk liability generally cf
Minister
of Law and Order v Nqobo
1992(4) SA 822(A) at
832E -
834A). But the underlying reason for such a
principle
is not in itself the determinant of its content
or
13/...
13. ambit. As pointed out by Schreiner JA, though in
reference to vicarious liability, in
Carter & Co (Pty) Ltd v McDonald
1955(1) SA 202(A) at 211H:
"the fact that a main reason for the existence of the principle of the
master's liability may be that he has created a risk for his
own ends does not
mean that wherever by his words or actions he has created or increased the risk
to other persons he is liable.
It is often useful to examine the reason which
probably gave rise to the rule, in order to discover the rule's limits, but the
reason,
even if certainly established, is not the same as the
rule."
It must also be borne in mind that liability
without fault runs counter to fundamental legal precept, though in certain
instances
considerations of social policy no doubt justify its existence. Where
the owner of an animal has taken care to entrust it to another
as its custodian,
the former has ex
hypothesi
no means of exercising control over it.
Competing
14/...
14.
interests are plainly at stake. Should
the owner in
such a case be held liable in the absence of any
fault
on his part or should the injured person be restricted to an
action against the negligent custodian? Dictates of fairness and justice,
to my
mind, favour the owner and warrant the recognition of the exception in
issue.
For these reasons, and on the authorities quoted, I agree that the appeal
should succeed. It is hardly necessary to add that fault
on the part of the
owner in the selection of a custodian (
culpa
in
eligendo
) could
give rise to an Aquilian action against the owner at the instance of the injured
party and that in certain circumstances the
former, if the custodian was his
employee, would be vicariously liable.
M E KUMLEBEN
JUDGE OF APPEAL
NIENABER JA - Concurs