In the matter between:
and
MASERU TOYOTA 1st Defendant
BB ALERT SECURITY (PTY) LTD 2nd Defendant
Judgment
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 27th October, 2009.
Plaintiff has sued the Defendants jointly for damages arising out of being attacked and bitten by a dog belonging to the Defendants. She has shown in his Declaration that the first Defendant is the owner of Maseru Toyota whilst the second Defendant has been described as the lawful owner and custodian of the dogs which guard first Defendant’s premises.
Plaintiff has alleged that it was on or about the 20th April, 2001 at around 7.30 p.m. when she was a student at the Centre for Accounting Studies, walking along Pioneer road on the way to the Centre that she was viciously attacked, bitten and seriously injured by Defendants’ dogs. She said she was bitten by those dogs on the legs, hands and around the waist causing her extensive bodily injury as well as tearing her clothes. She also lost her wrist watch during the attack.
In her initial summons, Plaintiff had only sued the 1st Defendant and claimed M135, 400.00 for damages.
In furnishing her further particulars to the request as to why Plaintiff alleged that the dog belonged to the first Defendant, Plaintiff said it was because she had knowledge to that effect.
The first Defendant in his plea had denied ownership of any dog at the time of the alleged incident. He pleaded that the dogs could have been the property of the security company which was responsible for the safeguarding of the Defendant’s premises.
But later, the first Defendant sought to amend his pleadings in terms of Rule 33 of the High Court Rules 1980.
Rule 33 (1) “Any party desiring to amend any pleading or document, other than an affidavit filed in connection with any proceedings, may give notice to all other parties to the proceedings of his intention so to amend.”
It goes further to allow a period of fourteen days within which to raise an objection which has to be done in writing.
The notice to amend was served on the other side on the 21st February 2005 and filed the next day. The intention to oppose that amendment was served on the Defendant’s Attorneys on the 28th February 2005 which clearly was still within the fourteen days allowed for so amending.
It would be interesting to note that in the amendment that was sought by the first Defendant, he had admitted ownership of the dogs. He had said;
“The allegations herein are admitted, but defendant specifically pleads that at the time of the alleged incident, it had no legal duty to ensure that its dogs did not attack passersby. Defendant pleads that at the time of the alleged incident, the dogs were under the supervision and control of the security company responsible for the safeguarding of the premises in question, and therefore the legal duty shifted to the said company accordingly.”
Subsequent to that Plaintiff applied for joinder of BB Alert as second Respondent and there was no objection and the second Defendant was so joined. Plaintiff had said in her affidavit that the reason for joining BB Alert was that, the dog which attacked her presumably belonged or was in the lawful custody of that company which was guarding Defendant’ s premises. Subsequent to that, Plaintiff filed amended civil summons, this time no longer claiming M135, 400.00 as damages, but now the amount was reduced to M85, 400.00. It was in the amended summons that ownership and custody of the dogs was shifted to the second Defendant.
In its plea to the amended summons, second Defendant showed that the dogs belonged to first Defendant and that his watchman was the custodian of the dogs at the time of the incident. The first Defendant on the other hand in his plea showed that the dogs at the relevant times belonged to the second Defendant who was also the custodian of the dogs.
Parties were agreed that there were only two issues to be determined by the Court. The two being the issue of liability and that of quantum. Plaintiff relied on the principle of vicarious liability.
As rightly pointed out by the Plaintiff’s counsel under the above principle, one person becomes liable for the negligence of another with a result that both or either of such persons becomes liable for the loss so suffered by a third party. He referred to this kind of liability as liability without fault of one person for the delict of another. The former would thus be indirectly or vicariously liable without fault for the damage caused by the latter. Plaintiff referred to Neethling Potgieter and Visser; Law of Delict 1990 at 312 in showing that vicarious liability would apply where there is a particular relationship between the two persons concerned. That one person becomes liable for the delictual act of another person despite the fact that he neither participates in, nor expressly authorized the act. It is enough if the latter is the servant of the former and that the act was committed in the course and scope of the servant’s employment.
Plaintiff further showed that liability attaches even if the owner has expressly prohibited the act. The servant would naturally jointly and severally be liable with the Master and that the rules relating to joint wrongdoers apply. He mentioned the three requirements that must be met for the principle of vicarious liability to attach:
A contractual relationship must exist as in principal and agent relationship or master and servant.
The agent must commit a delict.
Such agent must act within the scope of his mandate.
At paragraph 5 of her amended Declaration Plaintiff had said;
“6.1 The second Defendant was at all relevant times the lawful owner and custodian of the dogs which guard first Defendant’s premises.
6.2 The Defendant had a legal duty to ensure that their dogs did not attack passersby.”
In his plea the second Defendant in responding to paragraph 5 of Plaintiff’s Declaration said, “contents noted”. Responding to Paragraph 6 of the Declaration he showed he denied the contents therein as he said the dogs belonged to first Defendant and that his watchman was the custodian of the dogs at the material time. He said he had no legal duty vis a vis the dogs and the passersby. He denied liability.
The first Defendant on the other hand in responding to paragraph 5 of the amended Declaration said, “contents hereof are admitted.” He admitted to be the owner of Maseru Toyota and that second Defendant was responsible for guarding its premises. And in responding to paragraph 6 of amended Declaration, he admitted that second Defendant owned the dogs to guard his premises.
The Defendants may have been vicariously liable, considering that the principles of vicarious liability may have been met. But the case would not end there. Plaintiff alleged that in the attack by the dogs she had sustained some injuries on her body. In her pleadings she had said the injuries were on the legs, hands and around the waist and that her clothes got torn and even lost her wrist watch.
In her evidence, she only concentrated on the injuries on the legs. She even showed the Court and counsel the scars on her left leg only, just below the knee.
Plaintiff was not able to produce any documentary evidence to prove her case on the injuries she alleged she sustained. Even a print out which she had attached to her further particulars was never referred to or handed in in evidence as there was no further particulars requested after she had amended her summons. It therefore remained doubtful as to whether or not Plaintiff was ever bitten by Defendants dogs without any proof.
It is true that Plaintiff was not in a position to have known of the contractual relationship between the Defendants, but the Defendants did not convincingly deny their relationship. They each only pass the buck as to who between the two owned the dogs.
Plaintiff was not quite certain that the security was that of BB Alert, but that notwithstanding, the fact that second Defendant had put himself at the scene removed the uncertainty.
What remained an issue was whether Plaintiff has managed to prove its case on a balance of probabilities. As indicated earlier on in this judgment Plaintiff has not been able to show why she had arrived at the figures that she has claimed.
The Court in Malebo v Lesotho Plant Services 1991 – 96 LLR 562 opted for the granting of an amendment to the Declaration instead of granting absolution from the instance. The Court had found that Plaintiff had not established facts in support of his case to the satisfaction of the Court.
In our case, the summons and Declaration were amended but in evidence, Plaintiff lacked documentary evidence to prove her case. I would under the circumstance of this case grant absolution from the instance.
The Defendants are thus absolved from the instance and there is no order as to costs.
M. HLAJOANE
JUDGE
For Plaintiff: Mr Rafoneke
For 1st Defendant: Mr Loubser
For 2nd Defendant: Mr Matooane
