The owner of two pit bulls who attacked and bit a child who visited the dog owner’s children at the time, is liable to pay damages to the child’s parents, the Gauteng High Court, Johannesburg ordered.
A court earlier also found the owner of the dogs liable to pay the child’s medical costs, as well as pay her general damages. But dog owner Susanna Swanepoel appealed that ruling.
Judge Stuart Wilson, in a judgment concurred by two other judges, found that as the two pit bulls were raising a litter of puppies at the time, Swanepoel should have been extra cautious of the fact that they may attack visitors.
Swanepoel maintained that the dogs were not aggressive, and she thus could not foresee that they would bite the child who visited her home. She, however, did concede that she closed the female dog on a portion of the veranda with her pups.
It is not clear how the dog came out and attacked the daughter of Mark Reynecke on July 30, 2020. The court was told that the two dogs, in protecting their puppies, mauled the child in Swanepoel’s back garden and the child needed medical attention.
Reynecke subsequently sued Swanepoel for the damages incurred by his daughter.
In November 2022 the court gave judgment in favour of Reynecke, primarily on the basis that the dog attack was foreseeable, and that Swanepoel did not give evidence of the steps she took to prevent it.
On appeal, it was argued on behalf of Swanepoel that where liability for damages caused by an animal attack is pressed in an action based on the wrongful and negligent conduct of the animal’s owner, it must be established that the animal attack was foreseeable.
Foreseeability is ordinarily established by reference to whether the animal in question has a history of, or predisposition to, aggression. Where no such history or predisposition is established, it will generally be difficult to conclude that the owner of the animal could have foreseen the attack.
It was further argued that Reynecke had not discharged the onus on him to demonstrate that the attack on his daughter was foreseeable. For that reason, it was argued, there was effectively no case for Swanepoel to answer to.
But Judge Wilson said this is a mistaken argument. Not only was the foreseeability of the attack effectively conceded in Swanepoel’s plea, it was plainly established on the evidence. The judge added that Swanepoel gave no evidence whatsoever of the measures she alleged were taken to prevent the attack.
The judge on appeal said the trial court was earlier entirely correct in finding that Swanepoel was negligent as she should have known that her pit bulls, raising a litter of pups, could act aggressively.
Reynecke alleged that Swanepoel had a duty of care to the general public, and in particular to his daughter, to guard against the attack that took place. He said that Swanepoel had breached that duty by keeping dangerous dogs on the premises when she ought reasonably to have foreseen that the dogs would attack and cause injury to his daughter.
According to him, she failed to keep the dogs locked in a secure enclosure and she failed to warn his daughter that the dogs could be dangerous.
Swanepoel accepted that she had the duty of care and pleaded that the female dog had puppies and as such, the dog was isolated and kept in a separate enclosure on the porch.
Swanepoel alleged that she warned the young visitor to her home “as she warns all visitors” that the female dog had puppies and may be more protective than usual.
Judge Wilson said counsel for Swanepoel was unable to convince the court that these averments were anything less than an admission that the dog was potentially dangerous and that it was liable to attack those who approached it while it was rearing its puppies.
It appeared that Swanepoel’s children did not ensure that the puppies were put away in a secure location when their friend came to play. The court said the fact that Swanepoel instructed her children to ensure that the puppies were secure before receiving visitors, proved that she knew the dogs needed to be confined because of the potential threat they posed.
An animal behaviourist gave evidence that pit bulls are an aggressive breed, and that a female dog with puppies is likely to be aggressive.
To this, judge Wilson commented: “The foresight that a dog with puppies may be aggressive seems to me to be something a judge is entitled to infer from ordinary human experience.”
He concluded that Swanepoel had breached her duty by keeping dangerous dogs on the premises when she ought reasonably to have foreseen that the dogs would attack and cause injury to the child and by failing to take such other precautions as were reasonable to prevent the attack.
He subsequently turned down her appeal.
Pretoria News