Legal Articles

Pets are symbols of tender love and loyalty to those who own them, but things may indeed turn south if the animals are provoked and act out aggressively. Necessary measures ought to be put in place so as to ensure that attacks by pets are eliminated.

Where a third party is attacked by, let’s say a dog, is liability for damages or injury automatically attributed to the owner of the dog? Not necessarily, and here is why;

The owner of a pet, may escape liability under the following instances:

1. The claimant was not lawfully in that place;
2. The claimant or another third party provoked the pet and under such provocation, the pet acted in response to such provocation;
3. The injury of the claimant was caused by the conduct of a third party under the circumstances.

The third instance above is whereby a third party either provokes the animal and it subsequently attacks the claimant, alternatively where the third party is entrusted with taking care or being in control of a pet but is negligent and the pet attacks the claimant. Under both instances the liability moves to such third party. The latter instance is exactly what happened in the case of Lever v Purdy (3) SA 17 (A), where a third party was entrusted with taking care of a vicious dog while the owner went on a trip. The dog later attacked a visitor to the third party to whom it had been entrusted to, who was negligent not to lock it up before his visitor arrived. The visitor (claimant) sued the owner for damages but the action failed on the basis that the conduct of the third party unto whom the dog had been entrusted to, was negligent enough to impute liability on him.

The owner of the pet may successfully raise defences in the above instances and the onus is on the owner of the pet to prove the above. However, where the above do not apply, and where there was no fault on the part of the owner of the pet, can liability be imputed to the owner of the pet?

Owners may still be held liable...

Owners may still be held liable based on the doctrine of strict liability for damages and/or injuries to third parties caused by their pets, without fault on their part. In other words, the owner will be held liable merely because of ownership of the pet.  The principle on an action brought under the ‘actio de pauperie’ is that “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 owner, to make good the resulting damage.” To put it simply, this action is a no-fault action, and the claimant need not prove fault on the part of the owner of the pet.

In the case of Van Meyeren v Cloete (636/2019) [2020] ZASCA 100, the claimant (Respondent) was passing by the house of the Appellant, when he was mauled by the dogs of the Appellant, resulting in serious injuries. His left hand ended up being amputated. The owner of the dog tried to argue that there was no fault on his part because an alleged third party had negligently tampered with the locks and provided an opportunity for the dogs to escape. The Court rejected this argument citing that there was no obligation from the third party to the owner (Appellant) of the dogs.  Further, under the action if circumstances are that no defence may be raised by the owner of the pet amongst those outlined above, and despite there being no fault on the owner, the owner will nevertheless be liable on the basis of strict liability.

Van Deventers & Van Deventers Inc. - Attorneys Johannesburg & Cape Town

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