STRICT LIABILITY - DOG OWNERS BEWARE - actio de pauperie

In South Africa many homeowners have dogs as their domestic animals and with this comes the responsibility to ensure that they keep their pets under proper supervision and care.  There is a duty of care that the owner must exercise to ensure that the pet/dog does not harm others. 

There have been many incidences relating to dog attacks and bites in South Africa and therefore the duty rests with the dog owner to ensure the safety of individuals who come into contact with their domestic animals.   

It is therefore expected that if your dog is domesticated  it is able to control itself and it should not act contra naturam sui generis and in the event that the dog acts spontaneously and not as a result of an external factor or provocation and attacks or bits a third party then the owner is legally liable.

Liability without fault, is known as 'strict liability', which signifies a form of liability without fault on the part of the wrongdoer and thus actio de pauperie cements the instance of strict liability in South African law which was confirmed in the case of O’Callaghan NO v Chaplin 1927 AD 310,  this with regards to the damage caused by a domestic animal. So know that if your dog harms another person you will be ultimately held legally liable for any injury suffered by claimant.  The duty will now fall on you to compensate the injured third party.

Under strict liability the claimant need not proof any fault, negligence or intention.  

The claimant need only to proof the following:

• That the animal was owned by the person from whom the victim is seeking compensation;
• That the behavior of the animal which resulted in the injuries and the claim for compensation, was contrary to the nature of domesticated animals; and
• That the conduct of the animal caused the damages.

The owner of the domestic animal's defence will be that:

• The victim/claimant provoked the dog to attack by teasing or taunting it;
• There was a warning sign upon entry into the owner's home e.g. beware of the dog;
• A third party was delegated control of the dog;
• The unlawful presence of the victim/claimant on your property.

Should a claim not succeed against a dog owner and alleged that a third party had delegated control over the dog then the claimant/victim may have a claim in delict against the controller under the actio legis aquiliae this defence was confirmed in the case of Lever v Purdy 1993 (3) SA 17 (AD). 

For such unexpected event dog owners may also take out personal liability insurance to safeguard themselves for any such unforeseen expenses.

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