Schmidt and Smith and Another (85495/2016) [2018] ZAGPPHC 318 (2 May 2018)

Schmidt and Smith and Another (85495/2016) [2018] ZAGPPHC 318 (2 May 2018)

The court found that the first defendant admitted ownership of the boerbull, a domesticated animal, and that the dog acted contrary to the nature of domesticated animals by attacking the plaintiff. There was no evidence that the plaintiff provoked the dog, nor that he acted in any way to incite the attack. The defence of provocation was dismissed as highly improbable and unsupported by evidence. The dog was let out of the garage due to an employee's mistaken belief that the plaintiff had left, which led to the attack. The court held that strict liability under the actio de pauperie applies, and the plaintiff succeeded on this ground. The alternative claim of negligence was not proven, as...

Citation
[2018] ZAGPPHC 318
Parties
Plaintiff: Mervyn John Schmidt; Defendant: Llewellyn Smith; Defendant: V Comm CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 May 2018
Case Number
85495/2016
Procedural Posture
Civil Trial / Merits Only
Outcome
Plaintiff's claim under actio de pauperie against the first defendant succeeds; claim against the second defendant fails.
Judges
C Pretorius
Legal Topics
Actio De Pauperie, Liability for Domesticated Animals, Negligence, Aquilian Action
Delict Actio De Pauperie Liability for Domesticated Animals Negligence Aquilian Action

Case Brief

Summary, issues, holding and outcome

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Parties

Mervyn John Schmidt

Plaintiff

Llewellyn Smith

Defendant

V Comm CC

Defendant

Procedural Posture

Civil Trial / Merits Only

Legal Issues

  1. 1 Whether the first defendant, as owner of the boerbull, is strictly liable under the actio de pauperie for injuries caused to the plaintiff.
  2. 2 Whether the defendants were negligent in failing to control the dog.
  3. 3 Whether the plaintiff provoked the dog, thereby excluding liability.

Ratio Decidendi

The court found that the first defendant admitted ownership of the boerbull, a domesticated animal, and that the dog acted contrary to the nature of domesticated animals by attacking the plaintiff. There was no evidence that the plaintiff provoked the dog, nor that he acted in any way to incite the attack. The defence of provocation was dismissed as highly improbable and unsupported by evidence. The dog was let out of the garage due to an employee's mistaken belief that the plaintiff had left, which led to the attack. The court held that strict liability under the actio de pauperie applies, and the plaintiff succeeded on this ground. The alternative claim of negligence was not proven, as...

Court Disposition

Plaintiff's claim under actio de pauperie against the first defendant succeeds; claim against the second defendant fails.

Orders

  • The first defendant is declared 100% liable to compensate the plaintiff for damages suffered as a result of the boerbull attack on 15 April 2015.
  • The quantum portion of the action is postponed sine die.