On Friday 11 September the Supreme Court of Appeal (SCA) handed down an important judgement that all dog owners should take note of.
The judgement pertained to the case of a gardener and refuse collector who was attacked by three dogs in the street in 2017.
The claimant, Gerald Cloete, sustained serious injuries as a result of the dog attack and lost his left arm. Cloete maintains that he did not do anything to provoke the dogs, and was lawfully present on a public road when the attack happened. The owners of the dogs were not home at the time of the attack and denied liability.
According to the dogs’ owners, the dogs were secured within their property behind a gate. They argued that an intruder may have gained access by breaking the two padlocks keeping the gates closed. This, they maintained, would explain why the gate was left open and the dogs were able to escape.
Actio de Pauperie
Cloete sought out R2.4-million in damages for the incident, which left him handicapped. He made his claim based on a principle of Roman Law, which is called the “actio de pauperie“. According to this law, the owner of a domesticated animal is strictly held liable for the harm caused by that animal.
Under this action, the injured party does not have to prove negligence on their own part and can claim damages without having to prove fault.
The SCA said that there are three recognised defences to such a claim, which include:
- That the injured party was in a place where they had no right to be
- The animal was provoked either by the injured party or a third party
- That custody and control of the animal has passed to a third party who negligently failed to prevent the animal from causing the harm
In this case, however, the court found that the dog owners failed to prove that the incident was not their fault and therefore dismissed the dog owner’s appeal. The SCA ruled that the dog owner is liable to pay Cloete up to R2.3-million in damages.
Owners should be held liable – SCA
The court said, “Animals can cause harm to people and property in various ways. When they do so and the victim of their actions is innocent of fault for the harm they have caused, the interests of justice require that … it is the owner who should be held liable for that harm.”
“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.”
Henry Shields, a personal injury lawyer with experience in dog bite cases, has subsequently spoken to Refilwe Moloto on Cape Talk about the ruling.
Shields says, “This is a warning shot. If you want to have a dog – or a horse that kicks… call your broker and insure it! But if you’re going to let the Pitbull loose on the poodle, that’s a crime. You can’t buy your way out of a criminal charge”.