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Liability Insurance
Tuesday, May 1, 2007
Provocation success

Readers will be well acquainted with the Roman Law pauperian action, which attributes strict liability to the owner of a domesticated animal that has caused damage to a human being.

Ownership forms the basis of liability in the event of an attack by a domesticated animal acting contrary to its nature.
Insurers are now more frequently being required to indemnify the insured for liability in circumstances when the household pet bites a child in the garden of the policyholder’s house. Inevitably the protestation from the insured is that the dog has never bitten anyone before, is of a loving nature, good with children, and must have been provoked.
While provocation is a defence to the claim for strict liability, the available evidence is usually insufficient to sustain that defence. In those circumstances, the action in the Witwatersrand Local Division of the High Court in Green v Naidoo is unusual in that a defence of provocation was successful.
A four year old girl was bitten on her face by a dog while in the garden at the back of a house of her sister’s boyfriend whom she was taken to visit. It was alleged that the four year old pulled a scab off the dog’s nose while it was eating and the dog was responding to such “attack” and “antagonism” and was therefore not acting contrary to its nature.
The onus was on the defendant to prove that the dog’s behaviour could be attributed to the alleged provocation.
For the purpose of the defence it was irrelevant that a four year old child is incapable of wrongful and unlawful conduct. While she could not in law be held liable for any action she performed that did not mean the act was not performed. Provocation does not require any legal capacity on the part of the perpetrator. When provoked a dog does not distinguish between whether the actor is legally competent or not. Having analysed the evidence, the court accepted the version of provocation presented by the defendants.
The courts said that a normal dog was likely to have responded to the provocation in the same way. Interference with a dog by a stranger while eating constitutes provocation. A dog would be acting in accordance with its domesticated nature if it snapped and bit at a person who pulled at its nose while eating. A dog would be acting in accordance with its nature to act in defence of a perceived intrusion or predation upon its food, and to act in defence of its body.
Previously our courts have found provocation:
• where the plaintiff’s minor daughter in entering a tent occupied by other children trod upon the defendant’s dog, which thereupon bit her,
• where the plaintiff had walked up to the dog when it was chained up and struck it with some clothes. That would have been ‘such improvidence’ on his part as to exempt the defendant from liability for the bite the plaintiff received from the dog in consequence of his action,
• where the respondent on entering a bar trod on a dog’s tail and when it yelled, stooped down to pat it whereupon the dog bit him in the face. On appeal it was held that the action in stooping down to pat the dog when it was in an exited condition owing to having been trodden on was an ‘mprudent act’ on his part and the cause of the injury.

Liability insurers who wish to be in a position to raise provocation successfully in a dog bite claim should ensure prompt investigation of the circumstances of the bite and retention of the appropriate evidence. By Donald Dinnie of Deneys Reitz

Copyright © Insurance Times and Investments® Vol:20.4 1st May, 2007
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