The Actio de Pauperie and its consequences for pet owners

Owning a pet can be both rewarding and fulfilling with many pet owners adopting their pets as being part of the family. With the increase in dog-bite incidents since 2016, it’s no wonder people are extra cautious regarding their beloved furry friends. Can the owner of an animal be liable in law to compensate a victim for injuries they have suffered as a result of an attack?

So, you’re on your weekly Sunday afternoon stroll around the neighbourhood and you’re suddenly confronted by the neighbours snarling Boerbull. You attempt to change street sides but before you’re able to execute your escape plan, the dog has already sunk its teeth into your calf. The Actio de Pauperie is an action founded in the law of Damages (or Delict) upon which these types of claims are based. The general rule is that the owner may be held liable by virtue of his ownership – even if faultless. In instances such as these, it is important for both the victim(s) and for domestic animal owner(s) to understand the principles of liability without fault and the legally recognisable defences available.

The actio de pauperie can be traced back to the Law of the Twelve Tables. Here, it was first established that an individual who suffers prejudice by action or omission may claim for delictual damages from the owner of the domestic animal. Previously, the action was limited to actions involving cattle and the like however; it has since been extended to include domestic animals including dogs.

The leading case in this regard is that of Fourie v Naranjo and Another 2008 (1) SA 192 (C) which sets out four requirements that a claimant must prove to successfully claim under this action. These are expounded upon below:

  1. The wrongdoer/defendant must be the owner of the domestic animal when the damage was inflicted.

It is not sufficient to show that the person was exercising control over the animal. It is important to note, however, that a defendant who successfully shows that the animal was under the control of a third party at the time of the attack and the third party negligently failed to act then this requirement would not be satisfied and the defendant will have a valid defence to the action against him.

  1. The animal must be a domesticated animal.

In terms of this requirement there must be a distinction between wild animals that are presumed to be dangerous and domestic animals that are presumed to be docile. That being said, the action may still be applicable to in cases concerning certain domestic animals and therefore each case should be determined on its own merits.

  1. The animal must have acted contrary to its nature (contra naturam sui generis) when inflicting the damage.

This requirement involves an objective position being implemented in order to conclude whether the animal acted contrary to the behaviour that may reasonably be expected of an animal in the applicable species (Loriza Brahman en ’n Ander v Dippenaar 2002 (2) SA 477 (SCA) at 485). This requirement will not be satisfied if the defendant can prove that the animal reacted to external stimuli and not due to internal vice, such as a bite from a tail-trodden canine. The onus is placed on the defendant to prove the existence of a valid defence.

  1. The victim or prejudiced person or his or her property must have been lawfully present at the location where the damage was inflicted.

The Courts’ interpretation of this prerequisite vary with some judgments making reference to the claimant having a ‘lawful purpose’ while others require a ‘legal right’. There appears to be a partiality for the ‘legal right’ approach as in most cases one can imagine that ascertaining “lawful purpose” is too wide a scope to lock down. The defendant may be released from liability in this case if he or she can prove that the claimant had no legal right to be on the property as he or she is, for example, an intruder or a thief. Unfortunately (or fortunately), in-laws don’t form part of this category.

Both special damages (patrimonial or monetary damage to property and future medical expenses), as well as general damages (pain and suffering, loss of amenities of life, disability and disfigurement) may be claimed in terms of the actio de pauperie.

In addition to seeking relief in terms of the actio de pauperie, the plaintiff may plead in the alternative under the lex Aquilia based on the negligence of the defendant. In order for the plaintiff to prove negligence on the part of the defendant, the plaintiff will need to prove the requirements set out in the ‘reasonable person test’ as pronounced in Kruger v Coetzee 1966 (2) SA 428 (A),:

  • Whether a reasonable person in the position of the defendant would (a) foresee the possibility of his or her conduct causing injury to another or to the property of another and leading to subsequent patrimonial loss and (b) take reasonable steps to guard against this occurrence.
  • The defendant failed to take such steps.

As a protective measure, it is common for pet owners now to take out insurance to protect against such injuries and to cover any losses that may be suffered as a result of their animal’s actions. Either way, pet owners ought to act rationally and ensure that their pets are properly monitored to prevent any incidents in the first place.

BY: Shian Lee Heynes – Attorney