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We often hear about dogs biting people, but the day it is your dog that bites someone, you can go to jail. Dog bites and attacks, especially involving pit bulls, have been making headlines and although this is nothing new and there is legislation regulating cases, it is important to differentiate between the criminal and civil liabilities faced by dog owners when their animals cause harm.
You can be held criminally liable as a dog owner when your dog bites someone according to specifically the Animal Matters Amendment Act, that states that anyone whose negligence causes an animal to injure someone, will be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding two years, Lawyer Philip Venter says.
As the animal’s owner, you must have acted negligently or intentionally to be criminally liable for injury caused to someone and the negligence or intent must have caused the injury. However, you can also be guilty of a common law crime, such as assault, likely with the intent to do grievous bodily harm, culpable homicide or even murder.
“However, assault cannot be committed negligently but only intentionally.”
In less serious cases, such as where someone is not seriously injured or killed, the test to identify the crime of which you may be convicted – assault or contravention of the Animal Matters Amendment Act – should be determined by whether your actions were intentional or negligent.
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Claims for injuries caused by domestic animals in civil matters are generally regulated by your actions. Venter says contrary to the test for criminal liability, neither negligence nor intent is required to be held liable in a civil matter but keep in mind that your negligence or intent will probably cause an increase in the amount awarded for damages.
“All that is required for a liability claim is that your animal acted contrary to its nature. Contra naturam conduct was described in the case of Solomon and Another NNO v De Waal, where the court in turn quoted a case where the court stated that the animal’s conduct had to ‘connote ferocious conduct contrary to the gentle behaviour normally expected of domestic animals’.”
In another case, Van Meyeren v Cloete, the court stated that, for the owner to not be liable, the animal had to have caused harm while being in pain, frightened, provoked, or if the animal had acted as any animal would have acted in the circumstances before it, such as where a dog bites an intruder on its owner’s property.
“This case famously clarified that, while an owner may escape liability through the positive negligent conduct of a third party, such as when a house-sitter calls the victim of the animal attack to enter the owner’s property while knowing a dangerous dog guards it, the owner will not escape liability by the negative negligent conduct of a third party, such as when the third party forces open the closed gate of the owner’s property, causing the owner’s dangerous dog to escape the property and injure another person.”
Your liability is generally described as ‘strict’ in civil claims because negligence is not a requirement for fault, compared to the vast majority of other delictual claims where negligence is indeed a requirement.
However, Venter says, it would not be inaccurate to describe your liability in criminal claims as also being ‘strict’ since you can be criminally liable even if the harm is only caused by your negligence, compared to most other offences where you will only be held criminally liable if you caused harm intentionally.
Venter says it would therefore be wise for dog owners to properly train their dogs, ensure their dogs are always secured and not keep any animal where the owner cannot properly control it. Liability in animal attacks is strict and should preferably be avoided rather than having to be tested by the courts.
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According to DSC Attorneys, compensation for dog bite claims in South Africa can include past and future medical costs, loss of earnings and general damages for pain and suffering. For victims who are seriously injured as a result of dog attacks, personal injury compensation can provide much-needed financial relief.
The firm says for the claim to succeed, it must be established that the person you claim from has ownership of the dog, that the dog is a domesticated animal, that it acted outside its nature and the dog caused harm to the person claiming.
Recent claims and payouts for dog attacks include:
In 2021, Mohammed Essack of Howick West was attacked by a neighbour’s pitbull when the dog entered his property and attacked him, resulting in injuries that required hospitalisation. Essak claimed R1.4 million in damages.
In the 2020 case, Cloete v Van Meyeren, a man was attacked and seriously injured by three pitbull-type dogs on a public street. He claimed damages of R2 341 000 from the dogs’ owner, but the owner argued that the dogs were able to escape his property only because an intruder had left the gate to his property open. Normally, the gate was secured by a padlock.
The judge found in favour of the plaintiff, a ruling the firm says reinforced the principle of the actio de pauperie, the legal ruling providing 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”.
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In 2020, the victim of a dog attack lost an arm from the elbow down. A personal liability insurance claim was settled out of court for a little over R4 million.
DSC Attorneys says negligence by the dog’s owner is not a prerequisite for a successful claim, but a claim is more likely to succeed if there is evidence of negligence by the owner, such as failing to repair a gate that does not close properly or a gap in fencing or letting a dog off its leash in a public area.
The behaviour of the person who is attacked may also be relevant. For example, was the person attacked after illegally entering the dog owner’s property or did he provoke the dog?
Like other types of personal injury claims, dog bite claims can be complex and even if a dog attack occurred on the owner’s property, the owner could be found liable.
Other factors that will likely affect compensation in a dog bite claim are the medical costs associated with the injuries, loss of earnings due to the injuries, the severity and likely long-term consequences of the injuries sustained and the age of the person.
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