Van Meyeren vs. Cloete - (11 Sep 2020)

Where harm is caused by a domesticated animal, responsibility for that harm rests with the owner of the animal and not the injured party

Tort

An appeal by Mr. van Meyeren against a finding by the Eastern Cape Division of the High Court, that he was liable to compensate Cloete for injuries suffered by him when set upon by Mr. van Meyeren's three dogs in the street outside Mr. van Meyeren's house in Port Elizabeth. Mr Cloete, an itinerant gardener and refuse collector, was on his way to the shops pulling his trolley, when he was attacked without any warning or reason by the dogs. His injuries were serious and resulted in the loss of his left arm. Mr. van Meyeren and his family were not home at the time of the attack. The basis for the defence to the claim was that, the dogs had been locked inside the property, but an intruder must have endeavoured to gain access through a locked gate, broken both padlocks fastening it and either left the gate open or in a state where the dogs could open it. The case was argued on the basis that this was in fact what had occurred.

Mr Cloete's claim was based upon the legal principle dating back to the Roman Law that, the owner of a domesticated animal is ordinarily held strictly liable for harm caused by that animal. The injured party does not have to prove negligence on their part. There are three recognised defences to such a claim, namely that the injured party was in a place where they had no right to be; that the animal was provoked either by the injured party or a third party; and that custody and control of the animal has passed to a third party who negligently failed to prevent the animal from causing the harm. Mr van Meyeren's argument that, these defences should be extended to include any situation where the harm was caused by negligence on the part of any third party was rejected by the Court. It held that, constitutional norms did not justify such an extension. Where harm is caused by a domesticated animal, it is in principle appropriate that responsibility for that harm rests with the owner of the animal and not the injured party.

Many people in South Africa choose to own animals for companionship and protection. That is their choice, but responsibilities follow in its wake. Whatever anthropomorphic concepts underpin pauperien liability, the reality is that animals can cause harm to people and property in various ways. When they do so and the victim of their actions is innocent of fault for the harm they have caused, the interests of justice require that as between the owner and the injured party, it is the owner who should be held liable for that harm.

If anything with the growth of urban living, the vastly increased number of pet animals, especially dogs, in towns and cities and the opportunities for harm that they pose, that view of where the interests of justice lie has been strengthened. People are entitled to walk on streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense. Appeal dismissed.

Tags : NEGLIGENCE COMPENSATION ELIGIBILITY