By Abigail Stander and Trudie Broekmann
In a recent case, a dog owner in the Eastern Cape was ordered to pay R2.3m after a vicious attack by his three, mixed-breed (Pitbull-type) dogs on a passer-by who had to have his arm amputated as a result of the dogs’ bites. As a dog owner, this is a scenario you would obviously want to avoid at all costs. We look at what the law requires of you as a dog owner or dog-sitter – and under what circumstance you would be liable to someone who is bitten by your dog.
We understand from press reports that, relative to population, South Africa has the highest incidence of dog attack deaths in the world. According to a 2012 study at a KwaZulu-Natal hospital, the largest group of bite victims were boys between the ages of 6 and 10 years.
Normally the law only holds you liable for harm to someone else if you are negligent or act intentionally. One exception in South African law relates to damage caused by a person’s domestic animals. This action is known as the actio de pauperie. In other words, you could be held liable for damage caused by your domestic animal – even if it wasn’t your fault.
How can you be held liable under the actio de pauperie?
To claim successfully using the actio de pauperie, the victim of the dog attack must prove certain requirements:
- The defendant must own the domestic animal at the time the damage was inflicted.
- The animal that caused the damage must be a domestic animal, such as a dog.
- The animal must have acted contrary to its nature and as a result of inward excitement when it inflicted the damage (i.e. the dog was not provoked by someone).
- The person relying on this remedy must have lawfully been at the location where the damage was inflicted. For example, someone who gets bitten by a dog while trespassing on another person’s land would not be able to rely on the actio de pauperie.
The victim of the damage caused by the dog can claim the following from the owner of the dog:
- general damages (compensation for pain and suffering and lingering effects on the victim’s life)
- medical expenses
- loss of earnings and
- claims related to damage of their property
So, what happens when you leave your dog in the hands of a third party (e.g. a dog sitter, dog walker,“dog hotel”)? The case of Lever v Purdy 1993 (3) SA 17 (AD) demonstrated that the owner of a dog has a defence if he or she delegated control of the animal to a third Coparty who was negligent in exercising control over the animal. The victim may then have a claim against the third party under the actio legis aquiliae.
If you are the dog owner whose dog caused harm, you can only use this defence against a claim by a victim if the third party was actually in control of the dog. For example, a dog owner unsuccessfully raised this defence in the case of Cloete v van Meyeren. In that case, an intruder opened the dog owner’s gate which let out the dogs, who proceeded to attack the victim who was walking down the street. The dog owner was held liable under the actio de pauperie since he did not give the intruder control over his dogs in this instance so he could not raise this defence.
The dog owner will also not be liable if:
- The dog was provoked by the victim.
- The victim was unlawfully on the premises.
- The victim knew of the risk and voluntarily accepted it. In other words, they knew the possibility of damage and voluntarily accepted the risk.
- There is an existing indemnity agreement between the victim and dog owner. Such an indemnity needs to comply with the Consumer Protection Act.
How to prevent liability
A few basic tips:
- Choose a breed which is not known for aggressive behaviour toward humans. A large dog with a placid temperament is an equally effective crime deterrent to an aggressive breed.
- Take your dog to training and socialisation classes. Dogs will be less prone to ‘internal excitement’ that causes them to act out if they are trained and socialised. This is particularly advisable for rescue dogs whose temperament and sociability are unknown.
- In our experience, dog training mainly involves training the owner. There are great free resources on the internet, for example:
- Make sure that your dog is securely confined in your property.
- When you take your dog out, make sure you know when they are required to be on a leash. Check for any signs in public places that may prohibit you from taking your dog off lead. As an additional safeguard, consult your municipality’s relevant by-laws to check if there are additional rules governing whether you can take your dog off lead or not. By-laws designate certain public areas as either free running, on leash or off-limits areas for dogs.
- If you have a dog breed that could cause substantial damage to another person, it is advisable to put up warning signs on your premises. Apart from deterring intruders, guests will be informed of the risk of entering the premises.
- Supervise children while they are with your dogs. Kids often do not appreciate the risk in the same way adults can and often innocently behave in a way that triggers a dog’s hunting instinct.
- If you are leaving your dog in the care of someone else, make sure that person is responsible and brief them on how to deal with emergencies (e.g. if two dogs get into a fight, you pull them apart by the back legs).
If someone is bitten, seek medical assistance immediately. The death rate from dog bites is particularly high in South Africa due to a lack of post-incident treatment. Remember, the victim may need a rabies shot – even if the bite did not inflict a serious wound. Rabies in humans is a fatal disease.
Lastly, it may also be worth your while to take out personal liability insurance to cover any potential, successful claims. This will act as a safeguard in the unfortunate event that an accident does happen.