Article by Umhlanga Attorney - Fawzia Khan
Dog owners in South Africa need to take note of a judgement delivered by the Supreme Court of Appeal on 11 September 2020. This case involved compensation of R2.4 million in damages which was brought by a victim of a dog attack.
The victim was a gardener and refuse collector and he was attacked by 3 dogs. He said the attack occurred without any warning or reason on the street. The attack was so serious that the victim lost his left arm. According to the victim, he said that he did not provoke the dogs in any way and that he was lawfully entitled to be on the street where the attack took place. At the time of the incident, the owners of the dogs were not at home.
The victim based his claim on the legal principle known as the 'actio de pauperie'. This is where the owner of a domesticated animal is held to be strictly liable for harm caused by that animal. This means that the victim does not need to prove any negligence on the side of the dog owner. Hence you do not need to prove fault from the owner in order to claim damages.
The owners denied liability for the damages sustained by the victim. They argued that the dogs were locked inside the property, and that an intruder must have tried to gain access through a locked gate, broken both padlocks fastening it and either left the gate open or in a state where the dogs could open it.
The SCA said that there are three recognised defences to such a claim namely:-
The dog owners argued that these defences should be extended to include any situation where the harm was caused by negligence on the part of any third party. However, the court rejected this argument. It said that from a constitutional position it did not justify for such an extension to be made. The court said that where harm is caused by a domesticated animal, it is appropriate that responsibility for that harm rests with the owner of the animal and not the injured party. The SCA said that “people are entitled to walk our streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense.” The SCA dismissed the appeal by the dog owner and found that the dog owners to be liable to compensate the victim for the injuries he suffered.
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