A local law firm, Cliffe Dekker Hofmeyr, warns dog owners that they and their insurers may be held accountable if their dogs bite or attack individuals, under an action called the actio de pauperie for harm caused by domestic animals.
Director of the law firm, Willie Van Wyk, says that under this action a victim can claim damages from the dog owner “without having to prove fault” – in other words, without having to prove that the owner was negligent.
In the case of Cloete vs Van Meyeren in the Eastern Cape High Court last year, a plaintiff issued a claim for damages against a dog owner under the actio de pauperie and was granted R2.4-million in damages after the court found in favour of him.
The plaintiff in the case, Gerald Cloete, made a case against the dog owner, Christiaan van Meyeren, after Meyeren’s three dogs escaped his property through an open gate and ran out onto the street. They attacked Cloete who happened to be on the same street at that moment. He lost his arm as a result.
In the court, van Mayeren claimed his dogs had been let out of his property by a third-party intruder who had opened the gate, and argued that he should not be held liable. However, the court found that the victim, Cloete, did not do anything to “provoke the dogs and … was lawfully present in the public road when the attack took place”.
Dog owners can have a defence in certain circumstances, such as if their dogs are under the supervision of a third party when the attack occurs. If the third party fails to prevent the animals from attacking or harming the victim, the owner could be absolved of liability.
“In order to succeed with the recognised defence, a dog owner would have to prove that he delegated control of the animal and that the controller was negligent in exercising control over the dog,” says Van Wyk.
In the Cloete vs Van Meyeren case, van Meyeren also attempted to make the case that the blame was on the third-party intruder and not on him; however, the court stated that the case could not be extended this far.
“To include a defence founded on a third party’s negligence who was not in control of the dogs is not justified by logic nor by the existing rules in respect of pauperism liability.”
According to Van Wyk, van Meyeren applied for a leave to appeal on February 21 2019, but was denied.
Van Wyk adds that applying for a leave to appeal from the Supreme Court of Appeal may be the only option for dog owners or insurers who find themselves in a case in which their dogs attack an individual or individuals.
“A petition to the (SCA) for leave to appeal may in the interested of legal certainty for both dog owners and insurers.”