Green v Naidoo and Another (14171/04 , 04/14171) [2006] ZAGPHC 56; 2007 (6) SA 372 (W) (30 May 2006)

Green v Naidoo and Another (14171/04 , 04/14171) [2006] ZAGPHC 56; 2007 (6) SA 372 (W) (30 May 2006)

The court found that the minor child was lawfully present on the defendants' premises as a guest. The evidence established that the child approached the dog while it was eating and pulled at a scab on its nose, which constituted provocation. The dog's reaction was not contrary to its nature as a domesticated animal, and the defence of provocation was upheld, defeating the actio de pauperie claim. Regarding the Aquilian action, the court held that the dog had no history of aggression and the defendants could not reasonably have foreseen the possibility of harm. There was no negligence on the part of the defendants in their control of the dog. The court further found that the plaintiff did...

Citation
[2006] ZAGPHC 56
Parties
Plaintiff: Graham Dennis Green obo Casey Claire Green; Defendant: Mr T Naidoo; Defendant: Mrs Naidoo
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
30 May 2006
Case Number
04/14171
Procedural Posture
Civil Trial / Merits Only; Separation of Issues Under Rule 33(4)
Outcome
Plaintiff's claim dismissed with costs.
Judges
Satchwell
Legal Topics
Actio De Pauperie, Aquilian Action, Provocation, Volenti Non Fit Injuria, Negligence, Liability of Animal Owners
Delict Civil Procedure Actio De Pauperie Aquilian Action Provocation Volenti Non Fit Injuria Negligence Liability of Animal Owners

Case Brief

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Parties

Graham Dennis Green obo Casey Claire Green

Plaintiff

Mr T Naidoo

Defendant

Mrs Naidoo

Defendant

Procedural Posture

Civil Trial / Merits Only; Separation of Issues Under Rule 33(4)

Legal Issues

  1. 1 Whether the defendants, as owners of the dog, are strictly liable under the actio de pauperie for injuries caused to the plaintiff's minor child.
  2. 2 Whether the defendants were negligent under the Aquilian action in failing to prevent the injury to the plaintiff's minor child.
  3. 3 Whether the minor child's conduct constituted provocation, thereby exonerating the defendants from liability.

Ratio Decidendi

The court found that the minor child was lawfully present on the defendants' premises as a guest. The evidence established that the child approached the dog while it was eating and pulled at a scab on its nose, which constituted provocation. The dog's reaction was not contrary to its nature as a domesticated animal, and the defence of provocation was upheld, defeating the actio de pauperie claim. Regarding the Aquilian action, the court held that the dog had no history of aggression and the defendants could not reasonably have foreseen the possibility of harm. There was no negligence on the part of the defendants in their control of the dog. The court further found that the plaintiff did...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.