“There was evidence to the effect that a stallion, when in the company of mares, may attack a strange male horse which comes near the mares. It does so, said the witnesses, in order to protect its interest in its female company. In principle, such conduct is, in my judgment, no different from that of a mule which kicks as a result of being upset by traffic noises… or a dog which, because of hunger, catches fowls… It is expected of such animals, because they have become domesticated, that they should be able to control themselves, and if they do not, they are regarded as having acted contra naturam sui generis.”
The last requirement is that the harm complained of must have been caused by the conduct of the animal. There must accordingly have been a sufficient causal link between the animal’s conduct and the damages suffered by the plaintiff.
A defendant in an actio de pauperie can raise various defences in order to avoid liability. A defendant to this action can firstly raise a defence in terms of which he or she alleges that the animal that caused the harm was provoked by the culpable conduct of the party who suffered the damages, a third party, or by the conduct of another animal. The person raising such a defence will bear the onus of proving the same.
The defendant can also try to escape liability by alleging and proving that a third party in charge of the domesticated animal negligently failed to prevent the animal from injuring the plaintiff. For example, a person whose dog injures another person whilst in the care of a dog sitter who fell asleep in the park could raise this defence in circumstances where, for example, the dog sitter took the dog for a walk and took the dog off its leash. The dog sitter in these circumstances could have and should have kept the dog on its leash, which would have prevented the injury. A plaintiff in such circumstances might not succeed with a claim against the owner of the dog and will need to institute a claim against the third party – the dog sitter in this case.
A defendant can thirdly defend the action by alleging and proving that the plaintiff was unlawfully present at the premises where the injury was inflicted by the domesticated animal. It is important to note in this regard that the plaintiff must not only have had a lawful purpose to be on the premises, but that they must have had a legal right to be present on the premises. Amler’s Precedents of Pleadings state that only someone with an invitation or permission, whether implied or express, will have a legal right to be present on a premises.
The last defence that falls within the scope of this article is the volenti non fit iniuria. The defendant must allege and prove in terms of this defence that the plaintiff knew of the risk of sustaining an injury from the animal and that the plaintiff voluntarily accepted such risk.
This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)