Understanding Dog Attack Liability: Who’s Responsible?

Issue: If your dog attacks someone, who is liable for that party’s injuries?

Here’s a question from Annalie:

“I have two dogs that are the best-behaved loves of my life. A few weeks back, I had a plumber and his associate come over to do some repairs. When they left, I did not realise they had not properly closed the gate. At some point in the day, my dogs got out of the yard and onto the street.

Somehow, they attacked a young man on his bicycle. I say “somehow” because my babies are well-behaved dogs. It is so unlike them to attack anyone. Anyway, his parents have been harassing me to pay for his hospital fees. I admit it was my dogs that caused his injuries, but to say I must pay for them seems unreasonable. They also want me to pay for his psychologist visits because of trauma.

Their lawyer has just sent me a letter demanding I pay damages for his injuries. I’m not the one who let the dogs out, and I don’t know why they even attacked him. I think he may have provoked them even though he claims he did not. Can they make me pay these so-called damages? Shouldn’t they be claiming from the plumbers who left the gate open?”

From The Legal Desk:

Thanks for your question Annalie. First off, let me say I feel your pain. It’s like a twisted trifecta, from plumbing mishaps to doggy dilemmas to legal conundrums. I wish I could soften the blow with some good news, but I’m afraid I am only going to pile on. Let’s take a look at the legals…

Your first question: Can they make you pay these damages? Well, the short answer is yes.

Typically, if you are faced with a claim due to an incident involving your domesticated animal, it is likely to be pursued through the Actio de Pauperie. This legal remedy enables an individual to seek compensation from the owner of the animal responsible for harm or injury, without the need to establish negligence or fault on the owner’s part. The Actio de Pauperie operates on the principle that the owner is accountable for their animal’s behaviour and the potential risks it poses to others. Although originating from Roman law (which means it’s ancient), the South African common law still recognises and upholds the Actio de Pauperie, as was confirmed by the Supreme Court of Appeals (SCA) in the case of Van Meyeren v Cloete.¹

To succeed with the Actio de Pauperie claim, the injured party will have to show the following:

– the defendant (that would be you, Annalie) was the owner of the animal at the time of the incident;

– the animal was domesticated, meaning that it was accustomed to living with humans;

– the animal must have acted contra naturam sui generis, i.e. acted contrary to the nature of domesticated animals, meaning that it was not provoked or acting in self-defence;

– the claimant was lawfully present at the place where the harm occurred and did not contribute to the harm by their own negligence.

From the brief information you have shared, it looks to me like your situation satisfies all these requirements, i.e. you were the owner of the dogs at the time of the incident, they are domesticated, the dogs were not provoked (or at least there is no evidence they were), and the injured cyclist was lawfully present on a public road.

Now, there are some ways that you, as the owner of the dogs, can still escape liability. You would have to prove that the injured party was trespassing, provoking your dogs, or aware of the risk and voluntarily accepted it. You could also show that harm was caused by an unforeseeable intervening force or by the negligence of a third party in charge of or in control of the dogs. This point on third parties brings us nicely to your second question: Shouldn’t they be claiming from the plumbers who left the game open?

A key feature of pauperien strict liability is that the owner is the source of risk to the injured party. Should the culpable conduct be on the part of a third party, the owner of the animal avoids liability. The exemption from pauperien responsibility occurs when the actions of the victim or a third party directly lead to the incident that causes harm, and the owner has no means of preventing it. For the owner to be absolved of liability, there must be a clear connection between the third party’s actions and the animal’s behaviour responsible for the harm.

In the case of Lever v Purdy,² the court outlined two scenarios where the culpable conduct of a third party could constitute defences against the actio de pauperie:

(i) If a third party, through a positive action like provocation, induces the animal to cause harm to the victim; or

(ii) If the third party has control over the animal and fails to prevent the animal from causing harm to the victim.

Regarding the plumbers’ actions, at least based on what you shared with me, it does not appear that either of the above is relevant. There was no positive action on their part to cause your dogs to injure the cyclist, nor were your dogs in their control. The question that then remains is: can the plumbers be held liable for their negligence in not ensuring your gate was closed correctly?

To pursue this angle, the common law would have to be developed to allow for the third-party defence to be extended to situations where the harm would not have occurred “but for” the negligent conduct of the third party in circumstances where the third party had no control over the animal. In Van Meyeren, the SCA (as had the court a quo) refused to do so and held that the third-party defence could not be extended in this manner.

In conclusion, as the owner of the dogs, you (not the plumbers) will have to make good on the damage caused by your dogs.

Written by Theo Tembo