When can you claim damages for patrimonial loss (expressed in money) from a dog owner if his dog bites you and injures you?
Two Latin principals apply, the actio de pauperie (that refers to the legal remedy that can be brought against the owner of a domesticated animal that has caused damage when it was acting contrary to the nature of its species – that is, from ‘inward excitement or vice’ and the actio legis aquiliae (an action used to claim for financial loss).
Both special damages (which may include, for example, damage to property and future medical expenses), as well as general damages (which may include pain and suffering, loss of amenities of life, disability and disfigurement) may be claimed in terms of the actio de pauperie. A person who has been bitten by a dog is entitled to damages not only for the direct injury and pain, but also for subsequent physical disorders occasioned by the nervous shock.
As a general principle, where a person has assumed control over a potentially dangerous animal which may cause harm unless preventative measures are taken, she is under a legal duty to act to protect third parties, and must take steps to protect others against harm flowing from the conduct of the dog. If she fails to do so, she bears the sole responsibility for the damage caused by the animal.
What do you have to show to a court?
You must prove that she owned the dog; that it was under her control; that it acted against its nature (referred to as contra naturam sui generis in Latin) and that you (the victim) were lawfully present at the location where the damage was inflicted and you were injured.
The actio de pauperie imposes a strict liability on the dog owner (i.e. if you sue, you don’t normally have to prove that the owner was at fault (that he acted intentionally or negligently) and you can rely, in the alternative, on the actio legis aquiliae to prove negligence. You must prove that the dog attacked and bit you without any apparent cause.
You will need to prove the requirements set out in the ‘reasonable person test’ that Mr Average Citizen in the position of the defendant would foresee the possibility of his or her conduct causing injury to another or to the property of another and leading to subsequent patrimonial loss; and must take reasonable steps to guard against this occurrence.
The following defences may be raised by a defendant against a pauperian action.
You knew the dog was vicious but chose to place yourself in a dangerous situation, willingly; you were on the premises unlawfully (for example, an intruder or a thief), or you provoked the dog. To succeed, you must show the court that the victim knew of the risk of sustaining injury and voluntarily accepted such risk.
Take reasonable steps to protect yourself from claims.
Rather than rely on any possible defences, consider taking out personal liability insurance to cover any claims from the victim of a dog bite.