Dog and Owner – Strict Liability

The recent attack by two pit bulls on an elderly Jeffrey's Bay woman and her dog has again highlighted the importance of ensuring that one's dogs are secure.  It is important for both the victim as well as the dog owner to understand the principles of liability (without fault) and the defences available in the instance of a dog biting incident.

The owner of a dog in a dog biting incident can be held liable both civilly as well as criminally.  A victim can institute a civil claim against the owner of the dog to recover the damages that the victim has suffered as a result of being bitten, which includes special damages (for example damage to property and medical expenses) and general damages (for pain and suffering, loss of amenities of life, disability and disfigurement).  Criminal action can, in terms of the Animal Matters Amendment Act, 1993 ensue where an owner whose dog, as a result of the owner's negligence, causes injury to another person. On being convicted of this offence, the owner can be sentenced to a fine or to imprisonment for a period not exceeding two years.

In terms of the law of delict in South Africa, a dog owner can be held liable in terms of the actio de pauperi for the damage caused by their dog without there being any fault on the part of the owner and which claim is independent thereof.

To succeed with a claim under the actio de pauperi, a victim must establish that:

1. The person against whom action is instituted must have been the owner of the dog when the damage was inflicted;
2. The animal must be a domesticated animal as, in this instance, a dog;
3. The dog must have acted contrary to the nature of domesticated animals generally in causing the damage. A dog bite is contrary to the animal's domesticated nature; and
4. The conduct of the dog must have caused the damage.

There are defences available to a dog owner who finds themselves in this predicament which defences the dog owner must prove:

1. The dog was provoked by the victim, a third party or another animal;
2. A third party in charge or control of the dog at the time negligently failed to prevent the dog from injuring the victim;
3. The unlawful presence of the victim on the premises opened the victim to risk; and
4. The victim knew of the risk of sustaining injury from the dog and voluntarily accepted that risk.

Dog bite incidents appear to be on the increase and, as such, it is important for both the potential victim and the dog owner to have an in-depth understanding of the law applicable to dog bite cases.  It may, in addition to the possible defences that could be raised, be advantageous for a dog owner to consider taking out personal liability insurance to cover any claim which may arise from such an incident.

Disclaimer

This article is not intended to provide legal advice; it is for general information purposes only and to provide a general understanding of the law.  It is advisable that advice relating to the specific circumstances of your matter be sought from an attorney before acting upon the content of this article.  This article is written at a particular point in time and accordingly may not always reflect the most current legal developments, legislation and/or judgments which may be applicable from time to time. The author and/or Rushmere Noach Incorporated are not responsible for any errors or omissions in the content.