Is Your Pet’s Bite Worse Than Its Bark?

For those who keep vicious pets and who have wondered what liability they would have towards a victim of your pet and for those who have been a victim of someone else’s vicious pet and have wondered what type of claim they could have against the pet’s owner, this article is for you.

The position was summarized in the January 2017 issue of the De Rebus in an article penned by Kristen Wagner.

The essentials of this article are as follows:

FOR THE VICTIMS:

Essentially, there are two types of claims available to you:

1. The Actio de Pauperie (damage caused by animals); or
2. Aquilian action (a classic remedy for compensation in respect of patrimonial loss).

To succeed in the Actio de Pauperie, you need to prove four things:

1. the defendant (person against whom the claim is instituted) must be the owner of the animal that caused harm – i.e. this claim cannot be instituted against a third party (for example a dog walker) that was in control of the animal at the time of the attack;
2. that the animal is domesticated – this must be determined on a case-by-case basis;
3. the animal must have acted spontaneously and contrary to its nature. Thus, the animal should not have reacted to some sort of provocation; and
4. the claimant must have had a legal right to where he/she was at the time of the attack.

To succeed in the Aquilian action, the claimant must prove that the defendant was in control of the animal at the time of the attack and had acted negligently and, due to such negligence, the claimant suffered harm.

Generally, it is advisable to institute a claim in terms of both of the above described actions.

Clearly the onus of proof is less onerous in an Aquilian action. However, the damages awarded in the event of a successful claim, are in respect of patrimonial loss only compared to special damages and general damages awarded in respect of a successful claim in terms of the Actio de Pauperie.

Thus, if you have suffered at the teeth of a Chihuahua, a claim in terms of the Aquilian action would be sufficient to replace your pair of Jimmy Choo heels, however, if you have suffered extensive damage/loss such as losing the ability to work (at the jaws of a Rottweiler or crocodile), the Actio de Pauperie will have to be used to claim restitution for such loss.

FOR OWNERS OF THE VICIOUS PETS

If you are faced with a claim in terms of the Actio de Pauperie as described above, it is important to know that this action does not require any fault on your part i.e. you are facing strict liability.

The following defences could be used against a claim in terms of the Actio de Pauperie:

1. that you are not the owner of the animal that caused the harm (if it is your animal, and you can prove that someone else was in control of the animal at the time of the attack, this could conceivably be raised as a defence);
2. that the animal is not domesticated. Whether or not that the animal is domesticated will be determined on a case by case basis. Note that there have been instances where animals, such as meerkats and bees, have been held to be domesticated and this defence is not clear cut as it seems;
3. that the claimant was aware of the danger and assumed the risk of coming near/ teasing the animal; or
4. that the claimant was trespassing on the property where the attack occurred.

In the event that you are facing a claim in terms of an Aquilian action, the following two things could be used as a defence:

1. that you had taken the necessary steps to secure the animal/prevent the animal from attacking and that the attack did not occur due to any negligence on your part; and
2. that the claimant has not suffered any patrimonial loss as a result of the attack by the animal.

If a claimant succeeds with a claim in terms of the Actio de Pauperie, the consequences will be that the claimant will be awarded special and general damages which means that the claimant will be entitled to restitution in respect of damage to property, future medical expenses, pain and suffering, loss of amenities of life, disability and disfigurement. This is the heavy penalty and, if you own a particularly vicious pet, it is advisable to consider taking out personal liability insurance to cover you in the event of such a claim. It is also advisable to have a disclaimer on your property to warn would-be-claimants of the danger (note: there may be laws that have to be considered in respect of a lawful disclaimer).

Robynne Zevenster – Attorney

robynne@mrf.co.za

Monty Rademeyer – Partner

monty@rademeyer.co.za

The above does not constitute legal advice and, if you do have an issue relevant to this article, please contact our firm and set-up an appointment.