Vonnisbespreking: Deliktuele aanspreeklikheid vir beserings veroorsaak deur ’n gevange wilde beer

Abstract

Delictual liability for injuries caused by a captive wild bear The plaintiff was bitten by a captive wild bear while visiting the bear’s cage. In the trial court she claimed damages from the owners of the bear based on the actio de feris and the actio legis Aquiliae but absolution from the instance was granted. She then applied for permission to appeal against this decision, which was granted, and the full bench of the High Court thereupon dismissed the decision of the trial court. The plaintiff initially relied on the actio de feris to impose strict liability on the owners of the bear for bringing it to a place where members of the public have access (cf. Van der Westhuizen v Burger 2018 2 SA 87 (SCA) par. 3). Two defences may be raised against the action, viz. negligence on the part of, and voluntary assumption of risk by, the plaintiff. The trial court by implication accepted the defences, as the plaintiff did not provide any evidence to the contrary, and dismissed the claim. However, on appeal the court found that the plaintiff had not voluntarily assumed the risk of injury by the bear, but declined to make a final determination regarding the question whether the plaintiff had acted negligently as it merely had to apply the test for absolution from the instance. When the court a quo has to make this final determination and finds that the plaintiff had not been negligent, the actio de feris may perhaps have succeeded if the plaintiff had provided for it in her particulars of claim. The plaintiff did not rely on the actio de feris in the next two cases, so all three cases considered the defendants’ liability on the basis of the actio legis Aquiliae where the issue of their negligence was of primary significance. The trial court held that the defendants had not acted negligently. But the subsequent cases did not agree. According to them the defendants were negligent in allowing members of the public, and the plaintiff in particular, to come and be in close proximity to the bear’s cage in circumstances in which they had failed to take adequate, reasonable and necessary steps to protect her against the bear. The full bench held that the plaintiff had made out a prima facie case to which the defendants had to respond, failing which the plaintiff may succeed in her action, and dismissed the decision of the trial court to grant absolution from the instance. However, this was not necessarily the end of the matter, as it was not this court’s task to make a final determination regarding the question whether the defendants had in fact acted negligently and/or whether the plaintiff herself (also) had acted negligently. This would be the task of the court a quo. The decision of the full bench can be supported.