Fourie v Naranjo and Another (A41/2007) [2007] ZAWCHC 17; [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C) (2 May 2007)

Fourie v Naranjo and Another (A41/2007) [2007] ZAWCHC 17; [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C) (2 May 2007)

The court found that the dogs acted contrary to the nature of their class, and the appellant failed to prove that extrinsic factors caused the attack. The defence of volenti non fit iniuria was rejected as Naranjo did not foresee or consent to the risk, given his prior relationship with Bruno. The appellant did not establish negligence on Naranjo's part, nor did he prove that Naranjo was unlawfully present on the property; tacit consent was inferred due to the emergency. The court accepted Mrs Naranjo's evidence of emotional shock and held that damages for such trauma are recoverable under actio de pauperie. The appeal was dismissed with costs.

Citation
[2007] ZAWCHC 17
Parties
Appellant: Chris Fourie; Respondent: Dominique Naranjo; Respondent: Iris Naranjo
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 May 2007
Case Number
A41/2007
Procedural Posture
Civil Appeal / Appeal From Magistrates' Court on Merits Only
Outcome
Appeal dismissed with costs.
Judges
Cleaver, Thring
Legal Topics
Actio De Pauperie, Strict Liability, Volenti Non Fit Iniuria, Emotional Shock, Negligence, Lawful Presence
Delict Actio De Pauperie Strict Liability Volenti Non Fit Iniuria Emotional Shock Negligence Lawful Presence

Case Brief

Summary, issues, holding and outcome

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Parties

Chris Fourie

Appellant

Dominique Naranjo

Respondent

Iris Naranjo

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates' Court on Merits Only

Legal Issues

  1. 1 Whether the actio de pauperie applies to the facts and imposes strict liability on the dog owners.
  2. 2 Whether the dogs acted contrary to the nature of their class.
  3. 3 Whether the defence of volenti non fit iniuria is available to the appellant.

Ratio Decidendi

The court found that the dogs acted contrary to the nature of their class, and the appellant failed to prove that extrinsic factors caused the attack. The defence of volenti non fit iniuria was rejected as Naranjo did not foresee or consent to the risk, given his prior relationship with Bruno. The appellant did not establish negligence on Naranjo's part, nor did he prove that Naranjo was unlawfully present on the property; tacit consent was inferred due to the emergency. The court accepted Mrs Naranjo's evidence of emotional shock and held that damages for such trauma are recoverable under actio de pauperie. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the costs of the appeal.