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Due to my interest in and knowledge of animals and dogs in particular, I was asked by an attorney to arbitrate over a dispute between a dog owner and a dog club and its event organizers.

A well bred 2 year old dog with a couple of accolades already behind his name was entered into a “breed survey” During the survey the dag had to be weighed. Use was made of a bathroom scale. The handler first weighed himself, then picked up the dog (+ 40 kg) in a ‘sheep grip’ and weighed both. The reason given for doing the weighing in this manner was to “check its temperament”. It must be noted that the dog in question past a temperament test with flying colours two month earlier.

The dog owner signed an indemnity form, waiving all claims in the event of an accident / incident

The dog in question was picked up by a handler (not the owner, but a committee member). The dog disagreed with the process and jumped out of the grip. The handler then picked him up again, this time more forcefully. The dog wangled himself loose and fell on his back, damaging a vertebrate. This obviously had severe consequences in respect of the dog’s health.

The owner went to his attorneys to lay a claim against the club and its organizing committee. Both parties decided to have the matter heard by an arbitrator and agreed to myself being the arbitrator.

At face value the matter looked straight forward. The owner signed an indemnity form and could thus not lay any claim against the club or its organizing committee.

During the hearing it came to light that a similar accident happened some two years earlier with similar consequences.

Indemnity forms are binding provided both parties comply. The indemnity form signed was a very general one. There was no mentioning of or highlighting any specific acts that could have serious consequences.

The owner was at the time not aware of any potential dangers and agreed to the conditions.

The fact that a similar accident happened two years ago, the committee was aware of the dangers associated with the act. They did not take any steps to prevent a recurrence and did not inform the owner of the potential danger. Had the indemnity read: ‘In the knowledge etc, I nevertheless . . . undertake to indemnify . . .’, the argument of the club would have had substance. (Anita Joy Duffield v Others, 327/2006 HCEC)

Although the indemnity form was duly signed, the club and its committee still had a duty to ensure that no foreseen accidents will happen. The first one could be argued that it was unforeseen, but not the second one.

I contacted the overseas main body to familiarize myself with the actual standard procedure. The procedure is to either weigh the dog on a proper animal scale (walkon/ off) or alternatively to have the dog weighed by a vet who would certify the weight of the animal.

The club and its organizing committee were therefore negligent in the execution of the test. They were held responsible and liable (both as a club and as individuals) for all veterinary and physiotherapy costs incurred by the owner as well as for all future veterinary and physiotherapy costs related to the injury, for the rest of the dog’s life.

Should you require more information, please go to our website: www.wilbrink.co.za or alternatively give me a call on 031 – 266 9035 or my cell 083 265 3805 or e-mail me at wilbrink@icon.co.za

Note, this is only a very brief summary of the actual Arbitration Findings handed down.

References:

  1. Anita Joy Duffield v Others, 3327/2006 HCEC
  1. Drifters Adventure Tours cc v Hircock 2007 (2) SA83 SCA
  1. Durban’s Water Wonderland (PTY) LTD v Botha (1999 (1) SA 982 (SCA))
  1. Elgin Brown & Hamer (PTY) LTD v Industrial Machinery Supplies (PTY) LTD (1993(3) SA 424(A))
  1. Government of the Republic of SA v Fibre Spinners & Weavers (PTY) LTD (1978(2) SA794(A))