When can you claim damages for patrimonial loss (expressed in money) from a dog owner if his dog bites you and injures you?
Two Latin principals apply, the actio de pauperie (that refers to
the legal remedy that can be brought against the owner of a domesticated animal
that has caused damage when it was acting contrary to the nature of its species
- that is, from ‘inward excitement or vice’ and the actio legis aquiliae (an action used to
claim for financial loss).
Both special damages (which may include, for example,
damage to property and future medical expenses), as well as general damages
(which may include pain and suffering, loss of amenities of life, disability
and disfigurement) may be claimed in terms of the actio de pauperie. A
person who has been bitten by a dog is entitled to damages not only for the
direct injury and pain, but also for subsequent physical disorders occasioned
by the nervous shock.
As a general principle, where a person has assumed
control over a potentially dangerous animal which may cause harm unless
preventative measures are taken, she is under a legal duty to act to protect
third parties, and must take steps to protect others against harm flowing from
the conduct of the dog. If she fails to do so, she bears the sole responsibility for the damage caused
by the animal.
What do you have to show to a court?
You must prove that she owned the dog;
that it was under her control; that it acted against its nature (referred to
as contra naturam sui
generis in Latin) and that you (the victim) were lawfully
present at the location where the damage was inflicted and you were injured.
The actio de pauperie
imposes a strict liability on the dog owner (i.e. if you sue, you don’t
normally have to prove that the owner was at fault (that he acted intentionally
or negligently) and you can rely, in the alternative, on the actio legis aquiliae to prove negligence. You must prove that the
dog attacked and bit you without any apparent cause.
You will need to prove the requirements set out in
the ‘reasonable person test’ that Mr Average Citizen in the position of the
defendant would foresee the possibility
of his or her conduct causing injury to another or to the property of another
and leading to subsequent patrimonial loss; and must take reasonable steps to
guard against this occurrence.
The
following defences may be raised by a defendant against a pauperian action.
You
knew the dog was vicious but chose to place yourself in a dangerous situation,
willingly; you were on the premises unlawfully (for example, an intruder or a
thief), or you provoked the dog. To succeed, you must show the court that the
victim knew of the risk of sustaining injury and voluntarily accepted such risk.
Take reasonable steps to protect yourself from claims
Rather than rely on any possible defences, consider
taking out personal liability insurance to cover any claims from the victim of
a dog bits.
