Having received a number of matters that ended up in costly litigation we have decided to point out certain risks to dog owners regarding how liability arises and how to manage such risks and protect oneself against potential liabilities.
When a person is bitten and injured by a dog the injured person can institute action against the owner of the dog to recover his/her damages suffered. Guilt on the part of the owner is not a requirement for liability to attach. If the requirements discussed below are met, the injured person need not prove any guilt on the part of the owner of the dog. Thus, irrespective of whether the owner of the dog was negligent or not, the owner can still be held liable for harm caused by his animal.
What must be proven for a successful claim?
In order to succeed with a claim for damages, the injured person must show that:
- The person being sued must have been the owner of the relevant animal at the time of the incident. The mere fact that a person is in control of an animal is not sufficient;
- The animal is a domesticated animal, which by implication excludes wild animals;
- Injury was caused by the actions of the animal acting contrary to the nature of its kind. The animal must have acted differently to what could be expected of a proper and well-mannered animal of its kind. A dog that bites is deeded by our courts to act contrary to the nature of its kind. Where the animal does not act spontaneously but acts due to incitement or other external factors such as a dog that is being teased etc., the animal does not act contrary to its nature when it reacts aggressively;
- He/she had a right to be present at the place where the damage was caused. Where a person enters the property of another without invitation, the person will not be able to succeed with this action because the injured person was unlawfully present on the property.
Defences available to the owner of the dog
Although guilt on the side of the owner is not a pre-requisite, a number of defences are available to the owner of the animal in the case of a claim for damages. Defences available to the owner include the following:
- Guilty conduct on the part of the injured person. For example, where the injured person provoked the animal by hitting, throwing objects at or teasing the animal;
- Causing of damage by a guilty third party. For example, where another person provokes the dog or hurts or teases the animal with the result that the injured person is attacked;
- Provocation by another animal. For example, where another dog attacks the owner’s dog and the owner’s dog in the attack bites the injured person;
- Consent to prejudice. Where the injured person expressly or tacitly through his/her conduct consents to prejudice. For example, where a person is bitten by a dog but was pre-warned against the dog and then indicates that he/she is not afraid of dogs – “the dog won’t bite me” – a court should find that the injured person tacitly consented to the prejudice and would the person not be able to claim damages from the owner.
What damages can be claimed?
Where a dog bites a person, the person usually suffers damage, therefore he/she can claim for a wide range of damages, including for pain and suffering, loss of life enjoyment, disfiguration or disability, medical expenses incurred and to be incurred in future, loss of income, etc. All of these damages are in principle recoverable from the owner of the dog. Even a person who witnesses the attack on another person, may as a result of the emotional trauma suffered (and upon proving it) claim for damages.
It is important for owners of dogs to take note of their potential liability for the actions of their animals. This liability may be extensive and owners are encouraged to be serious about the proper control of their animals and to keep the animals within the confines of their property.
Short Term Insurance
Most short term householder policies will make provision for liability such as this at a minimal cost to the policyholder. Take the time to discuss this with your broker or insurer. Make sure that adequate insurance is in place. A claim such as this can amount to significant proportions. Your insurer can, however, help you cater for such a risk.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)