Source: BusinessTech (Extract)
November 14, 2021

Dog bite incidents remain a common occurrence in South Africa, with a recent Eastern Cape incident proving to be so savage that it sparked fears of a ‘werewolf’ among residents.

The question is often raised about who is liable for the injuries sustained from a dog bite or from other domesticated animals.

This issue was dealt with in two notable Supreme Court of Appeal cases in 2020 – claimants were successful after being attacked in both cases.

  • In the matter of Christaan Jacobus van Meyeren v Gerald Cloete, a gardener and refuse collector was attacked by three dogs while walking on a public road. As a result, he sustained serious bodily injuries which resulted in the loss of his left arm. The claimant subsequently succeeded in a claim for damages.
  • In the case of City of Cape Town v Fatiema Carelse, a woman went on a trip with her friends and family, and while she was swimming at a resort, she was attacked by a pitbull. She also succeeded in her court case.

Actio de pauperie

In the case of dog bites, a claim of  ‘actio de pauperie’  is brought, which is a claim against the owner of an animal. Actio de pauperie is strict liability, which does not depend on actual negligence or intent to harm.

For liability to succeed under this claim, the animal must have acted against its nature, according to Jean-Paul Rudd, a partner at legal firm Adams & Adams.

“The rationale is that domestic animals have been under the influence of man for such a long time that a minimum standard of good behaviour can be expected from them. Thus, it is considered ‘against nature’ for a dog to bite, an ox to gore, or a horse to kick or to bolt spontaneously when harnessed to a cart or with a rider on its back.”

He added that for a claim of negligence to be brought, fault needs to be attributed to the owner or householder in causing the incident. Acts of negligence may include the following:

  • The owner lets the dog off its leash in a public place;
  • The owner fails to repair a gaping hole in his / her fence at home;
  • The dog wanders off private premises and bites an individual in a public area, for example, in the neighbourhood.

Making a claim

“You need evidence of the injury. In most cases, medical reports or photos of the actual injury should suffice. Evidence should be documented while the injuries are still fresh, failing which you may struggle to prove that the injuries you sustained were caused by the incident concerned,” said Adams & Adams.

It is, therefore, advisable to seek medical attention immediately after the incident, both for your health and to document your injuries.

“You may also need a witness to corroborate your version of the events,” it said. “If anyone was present at the scene, it is advisable to take down their contacts details if they are required to testify on your behalf in court.”

In assessing a damages claim, a court will endeavour to place you in the position you were, had the incident not occurred, the firm said.

Damages include the following:

  • Past and future medical expenses;
  • Past and future loss of income;
  • General damages for pain and suffering, loss of amenities of life, etc.

“If you have sustained injuries from a dog bite or other domesticated animal, it is advisable to consult an attorney as soon as possible, to establish whether you may have a claim for damages.”