Dog attacks result in a lot of injuries each year, especially in South Africa with the high crime rate, large breeds of dogs, as well as aggressive dogs are popular locally. It is very important for owners of dogs to take note of their potential liability for the actions of their dogs.
In what circumstances can I claim compensation for a dog attack ?
If you’re a victim of a dog attack and injured as a result thereof, you can claim damages from the owner of the dog. Liability of the owner of the dog, depends on the specific merits of each case. Such action is instituted by way of a delictual cliam for damages, Actio de Pauperie. Although a dog is the direct cause of the damage, the dog’s owner bears the sole compensatory responsibility for any such damage. In a claim based on Actio de Pauperie you do not have to proof negligence or fault on the part of the owner, for the owner to be liable, strict liability will aplly. The owner will be liable regardless of whether the attack was due to his fault or not.
Appart from a claim based on Actio de Pauperie, you can also institute a delictual claim of Actio Legis Aquiliae. In a claim based on Actio Legis Aquiliae, you should prove negligence on the part of the person who was in control of the dog at the time of the incident. Negligence on the part of the person who was in control of the dog, should be proved and not neccesarily the owner of the dog.
An owner of a dog can also be held criminally liable for assult or even more serious charges in circumstances where a dog was used as an instrument to commit an offence. A successful conviction will depend on whether the accused person acted intentionally or not.
What are the grounds for a delictual claim of Actio de Pauperie ?
As outlined in the case of Fourie v Naranjo and Another 2008 (1) SA 192 (c) there are four requirements that should be met for this kind of claim:
- That the dog was owned by the person from whom the victim is seeking compensation. If the attack happened in a public area, you’ll have to establish the ownership of the dog;
- That the dog was a domestic dog and not a wild animal;
- That the behavior of the dog, which resulted in the injures was contrary to the the nature of a domesticated dog; or
- That the dog attack caused the victim injuries and damages.
What are the defences available for the owner of the dog ?
- When the dog was provoked by the victim or a third party.
- When the victim did not have permission or the right to enter the premises at the time of the attack; or
- If the owner or person who was in control of the dog warned the victum verbally or by way of a “beware of the dog” notice of the risk of sustaining an injury and the victim voluntarily accepted such risk and entered the premises, the victim then consented to the prejudice.
What kind of compensation can I claim for ?
The victim of a dog attack can claim for a wide range of damages, including, general damages for pain and suffering, past medical expences, future medical expences, which are detemined by a medical specialist, past and future los of earnings and damage to property.
All of these damages are in principle recoverable from the owner of the dog. A person that witnessed a dog attack, can also claim compensation in certain circumstances for emotional trauma suffered.
Can I expect to be compensated with huge amounts for general damages?
It is always important to consider whether the owner has the financial means to settle a claim before you spend legal cost to institute a claim for compensation. General damages are based on loss of life enjoyment, pain, suffering and disfigurement.
There is no hard and fast rule or standard to be found for the consideration of general damages. The amount to be awarded as compensation can only be detemined by the broadest general considerations and previous awards must be used.
The courts are however reluctant to award major amounts for general damages. In a recent case of Visser and Visser 2012(4) SA74, the victim had severe pain and suffering and the court only granted general damages in the amount of R 70 000.00.
In Summary the words of Judge C.J Innes in the 1927 case of O’Callaghan vs. Chaplin: “ By our law, 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.”
By: Andri De Jager (LL.B) – Honey Attorneys