In recent months many dog owners have become concerned by the growing number of cases relating to dog bites. When these cases succeed, owners are normally called upon to ‘cough up’ exorbitant amounts of money for damages, says Mtho Maphumulo, associate at law firm Adams & Adams.
On 2 September 2020 and 4 September 2020, respectively, the Supreme Court of Appeal heard two different cases of this kind and, in both cases, claimants were successful.
“In the matter of Christaan Jacobus van Meyeren v Gerald Cloete, a gardener and refuse collector was attacked by three dogs whilst walking on a public road. As a result, he sustained serious bodily injuries which resulted in the loss of his left arm,” said Maphumulo. “The claimant succeeded in his claim for damages.”
“Then, in the case of City of Cape Town v Fatiema Carelse, she went on a trip with her friends and family and whilst she was swimming at a resort, she was attacked by a pit bull. She also succeeded in her court case.
In the Christaan Jacobus van Meyeren case, the court mentioned that there has been substantial growth of urban living and the number of dogs living in towns and cities has vastly increased, said Maphumulo.
“As a result, there is a higher chance of dog bites. This then necessitates a discussion around the legalities related to dog bites – as it is relevant not only for dog owners, but also the public at large.”
Basic legal principles
To succeed in their claim, the claimant needs to prove that the alleged owner is indeed the owner of the dog that caused the injuries, said Maphumulo.
To determine this, it is necessary to attentively look at where the incident occurred, how it occurred and investigate the circumstances accordingly, he said.
“In most instances, it will not be difficult to prove this. However, depending on the relevant facts and circumstances, it may be difficult. If so, you will have to demonstrate that the dog acted against its nature.
“Importantly, the claimant does not need to prove fault (intention or negligence) on the part of the owner. This is because ‘actio de pauperie’ – claims against animal owners – is based on strict liability,” said Maphumulo.
As indicated above, Maphumulo said it may sometimes be difficult to prove that the alleged dog’s owner was indeed an owner at the time that the incident occurred or that the dog acted against its nature ‘contra naturam sui generis’ when it inflicted injuries.
“In that case, the claimant may then base his/her claim on the ‘actio legis Aquiliae‘, in which case there will be a need to prove fault on the owner’s part.”
Depending on the intrinsic facts of the case, it may not be difficult to prove fault as, among others, failure to control the dog, failure to keep the gate closed, etc. may be alleged as fault on the owner’s part, said Maphumulo.
What to claim
The nature and extent of the injuries – bodily and/or psychological – will dictate the nature and extent of compensation the claimant is entitled to claim, the legal expert said.
“The claimant may claim for past medical expenses; future medical expenses; past/future loss of earnings (or earning capacity); or general damages,” he said.
“If injuries lead to death, the dependents may claim for loss of support. If the deceased is a minor, there may be room to argue for emotional trauma and grief. The outcome in each case will be bound upon the unique facts of the case.”
Maphumulo said that for the owner, defences include:
- Knowledge on the part of the claimant that the dog will act aggressively;
- The dog was provoked;
- Unlawful presence on the premises;
- A clearly written and displayed indemnity may also be helpful.
The success of these will also depend on the prevailing circumstances of the matter, he said.
“Not much is often said about dog bite cases. However, there is a notable rise in these cases. Therefore, dog owners must take all the necessary precautions to ensure that their dogs do not do something that will attract legal liability for them.”