A person may claim for compensation as a result of a dog attack and may claim compensation for both personal injuries and damages to property. Such action is instituted by way of the Actio de Pauperie, a common law delictual remedy. It is important to remember that when a person claims on this basis, fault on the part of the owner is not required for the owner to be liable. In other words the owner will be liable regardless of whether the attack was due to his fault or not.
In order to successfully claim compensation it is necessary for the victim to prove the following:
1. that the animal was owned by the person from whom the victim is seeking compensation;
2. that the animal was domesticated ( a separate action exists in respect of wild animals);
3. that the behaviour of the animal which resulted in the injuries and the claim for compensation, was contrary to the nature of domesticated animals (this is determined from the facts of the incident); and
4. that the conduct of the animal caused the victims damages.
Since it may be difficult to prove that the person from whom compensation is being claimed was the owner or to prove that the animal acted contrary to the nature of domesticated animals, it is advisable to simultaneously (in the same action) also claim for compensation on the basis of another common law remedy being the Actio Legis Aquiliae, which is essentially a claim against the person who was in control of the animal at the time of the incident based on that persons negligence.
An example of negligence would be where a person leaves their gate open and the dog goes out onto the street and attacks someone.
Only a few defences are recognised when one is dealing with the Actio de Pauperie, namely:
1. Culpable conduct on the part of the injured person or a third party or another animal, where the animal causing the injury was provoked;
2. The unlawful presence of the victim on the premises at the time of the attack; or
3. The victim knew of the risk of sustaining injury from the animal and voluntarily accepted such risk.
Apart from civil liability, as set forth above, the owner of a dog/animal may also be held criminally liable in terms of common law or statutory law, for example the The Animal Matters Amendment Act, 1993 (Act 42 of 1993), which allows the courts to make certain directions in respect of injuries caused by animals. Criminal liability will be established where a dog has been used as an instrument to commit an offence. An example is where a dog has been incited to attack someone else which may result in a conviction for assault or even assault with intent to do grievous bodily harm. A successful conviction under such circumstances will depend on whether the accused person acted intentionally. Negligence on the part of the accused person, will, with the exception of culpable homicide, exclude criminal liability in terms of the common law.
The compensation (damages) that a person may claim form a dog attack are:
1. General damages, being damages for pain and suffering (which are calculated with reference to the severity of the injury and the impact of the injury on the person’s life);
2. Past medical expenses;
3. Future medical expenses which are determined having regard to the evidence of a medical specialist;
4. Past and future loss of earnings; and
5. Damage to property.
The onus is on the victim to prove these damages.
Victims of dog/animal attacks should seek advice from an attorney who will be able to advise them on the correct course of action.