Recent developments in strict liability requirements for dog owners.
Meet Roo.
He’s my miniature Yorkie and the guy has a serious Napoleon complex!
In his 6 years of existence, he has yet to appreciate his size in comparison to the rest of the world. His bark is worse than his bite, but that does not stop him from biting anyone who enters his territory.
Fortunately for me, those tiny teeth have yet to pierce any flesh but not for lack of trying. If Roo had been a much bigger dog, I would be facing some serious problems.
South African law relating to dog attacks on innocent bystanders goes back some 200 years. The principles which are generally applied in these cases are based on the actio de pauperie. In other words, dog owners are strictly liable for the action of their dogs. If a person suffers injuries or loss as a result of a dog bite, the owner does not have a defense in saying that he was not negligent.
Most personal lines insurance policies contain public liability cover, to a certain extent, for claims brought against dog owners. Historically, in order to succeed in a claim against a dog owner, the injured bystander would have to prove that he was entitled to be in the place that he was attacked and that the animal was not provoked to attack in any way. Giving consideration to the elements required for the bystander to prove their case, it has been generally accepted through the application of various cases that there exists three exceptions to the strict liability applied to dog owners.
The owner may escape liability where:
- The injured party was in a place where he should not have been;
- The animal was provoked;
- Damage was caused by the actions of a negligent third party. For instance, if you have a friend looking after your dog and you told the friend to keep the dog away from strangers. If the dog then attacked a stranger because of your friend’s negligence, you may be exempted from the application of strict liability.
Against this backdrop, the Supreme Court of Appeal handed down a judgement in September 2020 [1]. In this case, the dog owner asked the court to develop the common law with a purpose of revisiting the application of the actio de pauperie.
The facts of the case were that the dog owner had three pit bulls who were usually restrained in his yard. The injured party, who was a gardener and garbage collector, was walking on the street outside of the dog owner’s house. The dogs escaped the yard and all three of them mauled the injured party. The dogs were unprovoked and approached the bystander suddenly, he did not see them coming at all. His injuries were so severe that passers-by assumed that the injured party had been killed. He did survive but his right arm had to be amputated as a result of his injuries. The injured party claimed R 2.4 million from the dog owner.
The dog owner stated that nobody was home at the time of the incident. He stated that the dogs were let loose by an intruder who broke the locks of the gates which restrained the Pitbull. The dog owner appealed to the courts to extend the exception to liability under the actio.
The court held that in a situation where the dog owner has given control of his animal to a third party and that third party is negligent, the third party has assumed a responsibility on behalf of the dog owner and can therefore be held to a certain level of care which can exempt the dog owner. However, in a situation where an assumed intruder had released the dogs, the intruder has no responsibility to the dog owner. In other words the dog owner cannot pass responsibility for their dogs to an unknown party. In this situation, the dog owner will still be strictly liable.
It was furthermore contended by the dog owner that he took appropriate action to restrain the dogs, therefore, he should not be held liable. The court upheld the application of the actio on the basis that fault is not a requirement for relief under the actio.
Another interesting facet of the case, and probably the most significant development for public liability insurers, is that the judge touched on the scenario where an intruder enters the dog owner’s property and is subsequently mauled. As we have learned, the actio will not apply in the cases of an intruder. However, in this case, the judge questioned that reasoning:
“Counsel submitted that given the level of crime in South Africa people are entitled to protect their persons and homes against criminals. That is a proposition that would be uncontroversial even were the crime level lower. He went on to submit that not all the population can afford to live in gated and secure estates, or to install state of the art alarm systems. They may be compelled to rely on their dogs to guard their homes against criminals. Thus far the submission cannot be faulted, subject to the reservation mentioned earlier as to the degree of harm that a dog may do to an intruder. Deterrence or restraint of an intruder is one thing. Killing or seriously injuring them is another. Only in extreme circumstances is it permissible to shoot and kill an intruder in self-defence. Why then should it be permissible to keep a dog that, irrespective of the level of threat, may kill or maim them?” [2]
A similar example was given relating to a situation where a child went into a yard, uninvited, to fetch a ball. If the child were mauled, should the exception to strict liability be upheld by virtue of the fact that the child was in the wrong place at the wrong time without appreciating it?
With all of this in mind, it is clear that after 200 years the actio de pauperien is not going anywhere. In fact, it appears that the application may become stricter as the common law develops.
So if, like me, you have a ferocious monster or even someone who has the potential to be one at home, it is important to remember that the constitutional rights of the victim will always be paramount and if your monster attacks, you could find yourself in the dog house.
Claims Specialist Manager: PI & GL
Kamini Shanmugam.