Burger v Van der Westhuizen (60668/2015) [2016] ZAGPPHC 1246 (7 December 2016)

Burger v Van der Westhuizen (60668/2015) [2016] ZAGPPHC 1246 (7 December 2016)

The court found that the defendant was strictly liable for the plaintiff's injuries, as the injury was caused by a wild animal on the defendant's farm. The evidence established that the ostrich was wild and that the plaintiff was attacked while acting reasonably to avoid danger. The defendant failed to prove any of the available defences to strict liability, including provocation, voluntary assumption of risk, or contributory negligence. The court accepted the plaintiff's version of events, corroborated by the only eyewitness, and held that the injury was causally linked to the ostrich's attack. The defendant's application to amend his plea was refused due to prejudice. The court...

Citation
[2016] ZAGPPHC 1246
Parties
Plaintiff: W J Burger; Defendant: G van der Westhuizen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 December 2016
Case Number
60668/2015
Procedural Posture
Civil Trial / Merits Only; Quantum Separated Under Rule 33(4)
Outcome
Plaintiff succeeds; defendant is liable for damages to be proven in due course.
Judges
M Olivier
Legal Topics
Strict Liability for Wild Animals, Actio De Feris, Contributory Negligence, Voluntary Assumption of Risk
Delict Land and Property Strict Liability for Wild Animals Actio De Feris Contributory Negligence Voluntary Assumption of Risk

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

W J Burger

Plaintiff

G van der Westhuizen

Defendant

Procedural Posture

Civil Trial / Merits Only; Quantum Separated Under Rule 33(4)

Legal Issues

  1. 1 Whether the defendant is strictly liable for injuries sustained by the plaintiff as a result of an attack by a wild ostrich on the defendant's farm.
  2. 2 Whether any defences to strict liability, including provocation, voluntary assumption of risk, or contributory negligence, are available to the defendant.
  3. 3 Whether the plaintiff established causality between the ostrich attack and the injury incurred.

Ratio Decidendi

The court found that the defendant was strictly liable for the plaintiff's injuries, as the injury was caused by a wild animal on the defendant's farm. The evidence established that the ostrich was wild and that the plaintiff was attacked while acting reasonably to avoid danger. The defendant failed to prove any of the available defences to strict liability, including provocation, voluntary assumption of risk, or contributory negligence. The court accepted the plaintiff's version of events, corroborated by the only eyewitness, and held that the injury was causally linked to the ostrich's attack. The defendant's application to amend his plea was refused due to prejudice. The court...

Court Disposition

Plaintiff succeeds; defendant is liable for damages to be proven in due course.

Orders

  • The defendant is liable to pay the plaintiff such damages as he can prove in due course.
  • The defendant is liable to pay the costs of this action up to the date of this order, including the costs associated with the employment of senior counsel.