Written by Lungelo Mokoena (16 January 2022)
Our law is very clear about the relationship between owners and their belongings. It goes without saying that when someone personally causes harm to you, you have legal recourse against them by virtue of them having been responsible for inflicting harm on you. But what happens when an owner’s object or possession harms you? What is your recourse where an animal hurts you?
- Who is legally responsible if someone’s dog bites me?
The dog owner would generally be liable if their dog bites and causes harm to another person, provided that the person is legally permitted to be present at the place of the incident. The person instituting the claim would use an action referred to as the action de pauperie. Some requirements must be met to succeed in using this claim, and the complainant needs to prove the following:
- The ownership of the dog vests in the person against whom proceedings are instituted;
- The dog is a domesticated animal;
- The dog acted outside of the nature of domesticated animals, particularly dogs; and
- The conduct of the dog caused harm to the person claiming.
A silent yet additional requirement is that the person who has suffered an assault by the dog must have been lawfully at the place where the attack occurred. The aforementioned requirement was set out in the matter of Van Danventer v Botha where the appellant’s husband was bitten by the respondent’s dog while on the respondent’s property.
- Is it worth perusing legal action where a dog bite has been suffered?
At the heart of legal proceedings is a Latin phrase of “de minimis non curat lex”, which states that the law is not concerned with trivialities. Borne in mind, together with this phrase, is the understanding that any party who wishes to litigate does so at their own peril.
It would be worthwhile for a party who wishes to bring legal action to assess the nature and extent of the harm suffered. Where a party suffered no substantial injuries, it would not be prudent for action to follow. However, as in the case above, where the appellant was treated for injuries that resulted in Type 1 Hepatorenal, a litigious process may then be followed to recover damages.
- What can a person sue for when a dog has bitten them?
A person can sue for special damages as well as general damages as a result of the attack.
Special damages include past and future medical expenses, damage to property and past and future loss of income. General damages include pain and suffering, loss of amenities of life, disability and disfigurement.
- Does the case change if the dog was aggravated?
In order for a litigating party to succeed with the claim of the action de pauperie, they need not have conducted themselves in a manner which would aggravate the animal. Wallis JA in Van Meyeren v Cloete stated that for this action to succeed, there ought not to have been provocation of the animal by another person.
It is clear that any person who provokes the animal will fail in seeking recourse against its owner where damages have been sustained.
- What is classified as negligence when it comes to dog owners?
The question of negligence is a factual inquiry. Wallis JA, in the unanimous decision, stated that the essence of the action de pauperie is that “the owner of a dog that attacks a person who was lawfully at the place where he was injured, and who neither provoked the attack nor by his negligence contributed to his own injury, is liable, as owner, to make good the resulting damage. Negligence is thus not a prerequisite for liability to attract to the owner of the animal; however, as an owner of the animal, the owner would attract liability.
The owner of the animal has to exercise their due diligence and take precautionary measures to ensure that the animal is kept in a secure area. It is vital to keep a dog on a leash to avoid the dog’s actions attracting liability for the owner when in public.
The age-old principle of strict liability will follow the owner of a dog. However, the said owner will be absolved in certain instances where the victim’s culpable behaviour directly causes or inflicts harm on the animal.
Burger Huyser Attorneys have vast experience in claiming/suing for damages, contact our specialist litigation lawyers in Johannesburg in pursuing legal action.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
