LIABILITY FOR DAMAGE DONE BY DOMESTIC ANIMALS

Du Preez v Kingsley, [2015] JOL 33595 (FB)

One Mr Du Preez (Plaintiff) was attacked by a boerboel whilst cycling past a partially open gate.

The plaintiff sued the defendant (Kingsley) for damages, as a result of his injury.

He testified that he did not provoke the dogs, and was merely cycling in a public street.

The defendant, maintained that he had secured the gate, but could not dispute that the dogs had escaped.

Two legal concepts are highlighted in this case

Reasonable person test. The test for reasonability, as applied in this case, looked at the following:

• Would a reasonable person have foreseen the possibility of his dogs escaping and inflicting harm?

• Would a reasonable person have taken steps to prevent this foreseen harm?

• Did the defendant take those steps?

Doctrine of strict liability, or liability without fault.

The owner must ensure that his animal never behaves in a wrongful manner towards other persons.

Any wrongdoing is deemed failure to exercise this control. The effect is that the owner takes on liability, as if they themselves had committed the wrongful act

The Verdict

The defendant had a legal duty to protect other persons (from his dogs).

The defendant made a cable loop to keep the gate closed, but this loop still left a gate opening, allowing the dogs to escape. The defendant should have taken more precautions.

The defendant cannot claim contributory negligence as the plaintiff was cycling on a public road.

The defendant’s liability arose out of him not properly controlling the dogs.

He was liable for damages arising out of the incident and the plaintiff’s cost of lawsuit.

Comment

The verdict hinged on a simple risk assessment approach, i.e. how to keep the gate closed at all times, and the dogs inside.

Being reasonable is not a theoretical concept, but entrenched in our everyday behaviour.

The potential liability is no less when we temporarily open the gates, e.g. to bring cars into the property.

Make sure you do not end up like Mr Kingsley - someone who may have wished he could say the dogs were not his ….

Prepared By: Andre Calitz (Senior Associate, Cape Town Office) (Estates, Trusts & Commercial Departments)

Tel: 021 823 9928

Email: andrec@tmj.co.za