Brief Summary

Delict — Animal liability — Actio de pauperie — Plaintiff injured by defendants' dog while lawfully on their premises — Plaintiff claims damages based on strict liability for harm caused by the dog — Defendants deny liability, alleging plaintiff's negligence — Court finds plaintiff discharged onus of proving injury without provocation — Defendants failed to adequately warn plaintiff of dogs' aggressive tendencies, constituting negligence — Defendants held strictly liable under actio de pauperie as no exceptions to liability established.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were a civil action for damages arising from a dog-bite incident, in which the plaintiff sought to hold the defendants liable for injuries she sustained while feeding the defendants’ dogs on their property.

The parties were Ms Margaretha Johanna Catharina Muller (plaintiff) and Mr Johan de Waal and Ms Rina de Waal (first and second defendants), the admitted owners of the dogs involved.

The matter came before the Western Cape High Court, Cape Town, as a trial on liability only, because the merits and quantum had been separated during pre-trial procedures. The hearing included an inspection in loco held at the commencement of the hearing, following an earlier refusal by the defendants to permit an inspection for photographing the premises. The remaining issue of quantum was left for later determination.

The general subject-matter of the dispute was whether the defendants, as owners of a domesticated animal, were liable under the actio de pauperie (strict liability), alternatively in delict, for harm caused when their dog bit the plaintiff during the course of her engagement to feed the dogs.

Material Facts

It was common cause that the defendants owned the two relevant dogs, Bentley and Max, and that the plaintiff was lawfully present on the defendants’ premises on 11 July 2015 pursuant to the defendants’ request that she feed their animals. It was also common cause that, months before the incident, the defendants had noticed that Bentley and Max had begun growling at each other and attempting to fight, which led the defendants to feed the dogs separately, with Max inside the house and Bentley outside.

On 10 July 2015, the plaintiff met with the second defendant to collect the keys. It was common cause that, at this meeting, certain instructions were given, including that the plaintiff should feed the animals twice a day, keep Bentley and Max separated and fed in different areas, and keep closed the sliding door separating the bedroom and the backyard. At some point during the relevant feeding session on 11 July 2015, Max came into the backyard area and the dogs became involved in a fight, during which the plaintiff intervened by physically picking Max up while Bentley was still attacking him.

The disputed issues concerned what specific warnings or instructions the defendants gave and how the plaintiff was bitten. The plaintiff’s version was that Bentley suddenly and unexpectedly forced his way past her at the sliding door and that she was bitten and knocked back against the door in the process. She also maintained that she was not warned that Bentley and Max had previously attempted to reach each other’s “territory,” and that she was not instructed about what to do if a dogfight occurred. In particular, she denied that she had been instructed to keep closed a further internal door (referred to as the “mommy door”) between the main bedroom and the passage.

The defendants denied liability and contended that the plaintiff’s injuries were caused by her own negligence, including a failure to follow the alleged contractual instructions (including keeping the “mommy door” closed) and by intervening in a dogfight when she should not have done so, thereby assuming the risk. A further factual dispute was whether the bite occurred at the sliding door as the plaintiff alleged, or outside while she was attempting to separate the dogs, as the defendants alleged.

Legal Issues

The central legal questions were whether the plaintiff had established the elements of the actio de pauperie, and, if so, whether the defendants had proved an applicable exception excluding or limiting their strict liability, including that the harm was caused by the plaintiff’s negligence, provocation, or some other extrinsic cause. Closely connected to this was whether the defendants could rely on a defence framed as novus actus interveniens and/or volenti non fit iniuria (voluntary assumption of risk).

In the alternative, the court was required to consider whether liability was established under the actio legis Aquiliae, which required proof of negligence and causation, including whether the defendants foresaw or ought reasonably to have foreseen the relevant harm and failed to take appropriate steps, such as properly warning the plaintiff.

The dispute required determination of both factual questions (what warnings were given, which doors were to be closed, and where and how the bite occurred) and the application of established legal principles to the facts (including the operation of strict liability and its exceptions, and the requirements for delictual liability). The resolution depended materially on credibility, reliability, and probability findings.

Court’s Reasoning

The court approached the matter by applying the accepted onus in claims based on the actio de pauperie. The plaintiff bore the initial burden of showing that the animal acted contrary to the nature of an animal of its kind. The court treated this onus as prima facie discharged once the plaintiff established that she was bitten without apparent cause, which, on the court’s assessment, she had done. This shifted the onus to the defendants to show that the bite was attributable to the plaintiff’s own negligence, provocation, or another extrinsic factor.

Because key issues turned on disputed versions, the court applied the standard approach to factual disputes by considering credibility and reliability and, importantly, the probabilities. A central factual dispute concerned whether the plaintiff had been instructed to keep the “mommy door” closed. The plaintiff accepted she had been warned to keep the sliding door closed, but denied any instruction about the “mommy door.” The second defendant contended that the plaintiff had indeed been warned that the dogs would try violently to reach each other if that internal door was left open.

The court found it highly improbable that the plaintiff would have complied with the sliding-door instruction but deliberately disregarded an additional warning about the “mommy door,” particularly if the latter warning had been conveyed in the emphatic terms alleged by the defendants. The court noted that the plaintiff had fed the dogs on previous occasions without violent behaviour between them. On the probabilities, the court preferred the plaintiff’s version and concluded that the defendants had not established that the plaintiff had been instructed to keep the “mommy door” closed in the manner alleged.

In addressing the defence that the plaintiff was bitten while separating the dogs outside (and that this constituted a novus actus or voluntary assumption of risk), the court accepted that the plaintiff denied this version and observed that no evidence was led to contradict her account, including that a neighbour who allegedly advised the plaintiff during the dogfight was not called. On this basis, the court held that the defendants had not proved novus actus interveniens, and the defence of volenti non fit iniuria was dismissed.

Although the court found the defendants strictly liable under the pauperien action, it also considered foreseeability and negligence. It held that the defendants foresaw or reasonably ought to have foreseen that Bentley would attempt to gain access to Max, and that the defendants’ failure to warn the plaintiff of the full extent of the dogs’ violent behaviour towards each other was negligent. That negligence was treated as causally connected to the injury.

In evaluating whether any exception to strict liability applied, the court emphasised that the defendants bore the burden of proving that the plaintiff’s negligence caused the harm so as to displace pauperien liability. The court was not persuaded that the defendants had established negligence on the plaintiff’s part. It further reasoned that the plaintiff had been asked to feed the animals but had not assumed general control over them, and that she had not been properly warned prior to the incident of Bentley’s propensity to access Max’s area and the potential for violent interaction. Against that factual finding, the court concluded that the requirements of the actio de pauperie were satisfied and that no recognised exception had been proven.

Outcome and Relief

The court found in favour of the plaintiff on liability. The defendants were held jointly and severally liable (the one paying the other to be absolved) for 100% of the plaintiff’s damages, with the amount to be determined later.

The defendants were ordered, jointly and severally, to pay the plaintiff’s costs of suit on the High Court scale in respect of liability, including reserved costs, and specifically including costs associated with the inspections in loco, the plaintiff’s application to compel further particulars, and the costs of opposing the defendants’ Rule 38 application, as well as wasted costs occasioned by the inspection in loco on the first day of trial.

The hearing on quantum was postponed sine die.

Cases Cited

Theyse v Bekker 2007 (3) SA 350 (SCA)

Van Meyeren v Cloete [2020] ZASCA 100

Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA)

Maartens v Pope 1992 (4) SA 883 (NPD)

O’Callaghan N.O. v Chaplin 1927 AD 310

Legislation Cited

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), sections 10, 11 and 12(2)

Rules of Court Cited

Uniform Rules of Court, Rule 38

Held

The court held that the plaintiff had established a basis for strict liability under the actio de pauperie by showing that she was bitten by the defendants’ dog without provocation or extrinsic cause, and that the defendants failed to prove an applicable exception such as negligence by the plaintiff, provocation, novus actus interveniens, or voluntary assumption of risk.

The court further held, on the factual findings it accepted as probable, that the defendants did not adequately warn the plaintiff of the dogs’ propensity for violent interaction and the risk that Bentley would attempt to gain access to Max, and that this omission supported a finding of negligence in the alternative delictual claim.

Accordingly, the defendants were declared liable jointly and severally for 100% of the plaintiff’s damages (to be quantified later), and were ordered to pay the plaintiff’s costs relating to liability on the High Court scale, with quantum postponed sine die.

LEGAL PRINCIPLES

The judgment applied the principle that, in a claim under the actio de pauperie, the owner of a domesticated animal is strictly liable for harm caused by the animal to an innocent victim, subject to recognised exceptions. The plaintiff bears an initial onus to show that the animal acted contrary to the nature of an animal of its kind, and that burden is treated as prima facie discharged where the plaintiff proves a bite occurred without apparent cause; the onus then shifts to the defendant to establish an exception such as provocation, negligence by the plaintiff, or another extrinsic cause.

The judgment reaffirmed the approach to resolving factual disputes by weighing credibility and reliability together with the probabilities, and deciding whether the party bearing the onus has discharged it on that assessment.

The judgment recognised the relevance of defences such as novus actus interveniens and volenti non fit iniuria, while applying them as defences that require proof on the facts as pleaded and advanced. Where a defendant fails to prove that the plaintiff’s own conduct broke the chain of causation or amounted to a voluntary assumption of risk, those defences do not displace liability.

In relation to alternative delictual liability under the actio legis Aquiliae, the judgment applied the principle that the owner’s foreseeability of harm, assessed with reference to the animal’s history and interactions, and a failure to take reasonable steps (including appropriate warnings) may establish negligence and causation. The court also noted the relevance of constitutional values (including dignity, life, and bodily integrity) in evaluating the fairness and justice considerations associated with the allocation of responsibility for harm caused by domesticated animals.

Muller v De Waal and Another (15448/17) [2023] ZAWCHC 173 (24 March 2023)