A defendant in an actio de pauperie can raise various defences in order to avoid liability. A defendant to this action can firstly raise a defence in terms of which he or she alleges that the animal that caused the harm was provoked by the culpable conduct of the party who suffered the damages, a third party, or by the conduct of another animal. The person raising such a defence will bear the onus of proving the same.
The defendant can also try to escape liability by alleging and proving that a third party in charge of the domesticated animal negligently failed to prevent the animal from injuring the plaintiff. For example, a person whose dog injures another person whilst in the care of a dog sitter who fell asleep in the park could raise this defence in circumstances where, for example, the dog sitter took the dog for a walk and took the dog off its leash. The dog sitter in these circumstances could have and should have kept the dog on its leash, which would have prevented the injury. A plaintiff in such circumstances might not succeed with a claim against the owner of the dog and will need to institute a claim against the third party – the dog sitter in this case.
A defendant can thirdly defend the action by alleging and proving that the plaintiff was unlawfully present at the premises where the injury was inflicted by the domesticated animal. It is important to note in this regard that the plaintiff must not only have had a lawful purpose to be on the premises, but that they must have had a legal right to be present on the premises. Amler’s Precedents of Pleadings state that only someone with an invitation or permission, whether implied or express, will have a legal right to be present on a premises.
The last defence that falls within the scope of this article is the volenti non fit iniuria. The defendant must allege and prove in terms of this defence that the plaintiff knew of the risk of sustaining an injury from the animal and that the plaintiff voluntarily accepted such risk.