When the bark is no longer worse than the bite
- Featured article by LAWYERS-ONLINE.CO.ZA - March 2019
As the age old saying goes, the bark is worse than the bite, but for many dog owners, this may no longer ring true. In a recent landmark case in 2018, Cloete v van Meyering, the Eastern Cape High Court found in favour or a plaintiff on the grounds of actio de pauperie for harm caused by domesticated animals. He was granted a staggering R2.4-million in damages! This may have far-reaching consequences for dog owners and insurers alike.
So what does this all mean? Before we get down into the nitty-gritty, let’s just break down the consequences: as a result, dog bite victims now have the right to claim for damages without even having to prove fault. What is fault? Well, that means they do not have to prove that the owner was negligent, simply that the animal of the owner caused them harm. Scary stuff, as in the Cloete case, the victim was attacked by the defendant’s dogs after a third party let them out.
It is an interesting legal conundrum to investigate, as it grants victims of domesticated animal attacks more rights, but also reduces the rights of an owner who may not have control of their animal at the time of the attack.
But there might be hope, as dog owners could be relieved of their liability if they can prove that the animal was in the care of a third party. In the Cloete case, the third party was not in charge of the care of the dogs in question, and the owner has had to pay a steep price. In order to succeed using this defence, dog owners will have to prove that the third party was negligent in preventing an attack and that control of the animal was entirely entrusted to the other person.
So why are we focusing on this case now? Because in February of 2019 the defendant’s leave to appeal against the Cloete judgement was denied, further securing the fact that dog bite victims most certainly have more rights to claim damages than before.
Therefore, we would like to urge dog owners to be more vigilant about their animals. Ensure that they have no means of escape while you are out and when taking them for walks ensure that they are leashed and under control. Perhaps avoiding your local off-leash dog park is best if your four-legged companion is more Gremlin than loveable Mogwai!