Due to the high rate of crime, many South African homeowners have dogs in the hope of safeguarding their property and deterring burglars.
However, dog owners and their insurers should be wary of attracting liability under the ‘actio de pauperie‘, said Willie van Wyk, a director at Cliffe Dekker Hofmeyr.
Under this actio, a victim of a dog bite can claim damages from a dog owner without having to prove fault, he said.
Van Wyk highlighted a recent Eastern Cape High Court case in which the plaintiff instituted a claim for damages against a dog owner under the actio de pauperie.
The plaintiff had been attacked when three dogs escaped from their owner’s property after a third-party intruder had opened the locked gate.
In the circumstances, the dog owner denied liability.
However, the plaintiff did not do anything to provoke the dogs and he was lawfully present in the public road where the attack took place.
As a result of the attack, the plaintiff lost his left arm and instituted a claim for R2.4 million.
The court found in favour of the plaintiff on the separated issue of liability in the judgment of 27 November 2018, said Van Wyk.
Previous cases found that a dog owner may be absolved of liability on the basis that control of the animal had been delegated to a third party who failed to adopt reasonable precautionary measures.
In the above case, the defendant argued that this should be extended to include negligence of an intruder, who did not exercise control over the dogs but merely left the gate open.
However, the court found that this defence could not be extended this far and found in favour of the plaintiff.
“An application for leave to appeal was heard on 21 February 2019 and leave to appeal was denied,” said van Wyk.
“A petition to the SCA for leave to appeal may be in the interests of legal certainty for both dog owners and insurers.”