Lever v Purdy (472/91) [1993] ZASCA 48; 1993 (3) SA 17 (AD); [1993] 2 All SA 265 (A) (31 March 1993)

Lever v Purdy (472/91) [1993] ZASCA 48; 1993 (3) SA 17 (AD); [1993] 2 All SA 265 (A) (31 March 1993)

The Supreme Court of Appeal held that the owner of a domesticated animal, such as a dog, may successfully avoid pauperien liability by proving that the harm was caused by the negligence of the person in control of the animal at the relevant time. In this case, Cohen was entrusted with the custody and control of Lever's dog and failed to take reasonable precautionary measures to restrain the animal, despite knowing its vicious propensities and the timing of Purdy's visit. Cohen's negligent conduct provided the dog with the opportunity to injure Purdy. According to Roman and Roman-Dutch law, as endorsed by Voet and other authorities, Aquilian liability attaches to the negligent controller,...

Citation
[1993] ZASCA 48
Parties
Appellant: Norman Allen Lever; Respondent: Arthur Harry Purdy
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 1993
Case Number
472/91
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division, Following Special Leave Under Sec 20(4)(a) of Act 59 of 1959.
Outcome
Appeal upheld. The order of the court a quo is replaced with an order dismissing Purdy's appeal.
Judges
Joubert, Smalberger, Kumleben, Nienaber, Howie
Legal Topics
Actio De Pauperie, Aquilian Liability, Liability for Domesticated Animals, Negligence of Controller, Strict Liability, Defences to Pauperien Claim
Delict Actio De Pauperie Aquilian Liability Liability for Domesticated Animals Negligence of Controller Strict Liability Defences to Pauperien Claim

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Parties

Norman Allen Lever

Appellant

Arthur Harry Purdy

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division, Following Special Leave Under Sec 20(4)(a) of Act 59 of 1959.

Legal Issues

  1. 1 Whether the negligence of a third party in control of a domesticated animal exonerates the owner from pauperien liability.
  2. 2 Whether the owner of a vicious dog is strictly liable for injuries caused when the dog bites a visitor, or whether the controller's negligence provides a defence.
  3. 3 Whether the actio de pauperie is defeated by the negligent conduct of a person entrusted with custody and control of the animal.

Ratio Decidendi

The Supreme Court of Appeal held that the owner of a domesticated animal, such as a dog, may successfully avoid pauperien liability by proving that the harm was caused by the negligence of the person in control of the animal at the relevant time. In this case, Cohen was entrusted with the custody and control of Lever's dog and failed to take reasonable precautionary measures to restrain the animal, despite knowing its vicious propensities and the timing of Purdy's visit. Cohen's negligent conduct provided the dog with the opportunity to injure Purdy. According to Roman and Roman-Dutch law, as endorsed by Voet and other authorities, Aquilian liability attaches to the negligent controller,...

Court Disposition

Appeal upheld. The order of the court a quo is replaced with an order dismissing Purdy's appeal.

Orders

  • The appeal is upheld.
  • The order of the court a quo is set aside and replaced with: The appeal is dismissed.