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Schooling your clients on pet liabilities

05 May 2021 Gareth Stokes
Elsa Jordaan

Elsa Jordaan

Local insurance brokers and their personal lines clients should take note of the current uptick in liability claims following domestic animal attacks. Elsa Jordaan, Executive Head of Claims and Legal at CIB singles out dog bites as one the prominent drivers of personal liability exposures in recent years. Jordaan was presenting at the InsureTalk 11 webinar and operated by CN&CO. Dog attack statistics are not freely available in South Africa; but there are countless news stories featuring the consequences of such attacks. Sadly, many reported cases involve serious attacks by family pets on family members or friends.

Setting aside the blame game…

Data from the United States (US) points to around 4.7 million recorded dog bites each year with around 800 000 victims requiring medical attention and 46 fatalities. In 2019 some 17 802 dog bites were reported for insurance claims. Dog bite victims in the US include delivery people such as mailpersons and parcel couriers and, unfortunately, many children aged 10 years and under. Most debates about dog attacks quickly unravel into arguments about which breed of dog is most often responsible; but that is not the point of today’s newsletter. Our intention is to explore the legal liability that your non-life personal lines clients face in the event their dog is responsible for biting someone. 

Jordaan kicked off the discussion about liability in the personal lines insurance context by sharing a generic policy wording. A policy might state that the insured will be compensated if he or she ‘becomes legally liable to pay compensation to third parties for accidental death, bodily injury or illness or accidental loss or damage to their property occurring during the period of insurance’. In such event the insurer will indemnify the insured ‘inclusive of costs and expenses’ and subject to policy limits. The ensuing discussion considered general legal liability before placing the case of attacks by domestic animals under the spotlight. 

ABCs of general legal liability

Jordaan reminded the audience of the three ways in which general legal liability could attach to an individual, namely by delict in terms of the South African common law; by way of contract; or by being introduced by legislation. “If the case involves injury or death you need to asses legal liability according to the five elements of delict,” she said. Observations about each of these elements follow in the bullet points below: 

  • Conduct: “If a work crew was digging a manhole on the side of the road and a pedestrian is accidentally pushed into the hole by a third party, the third party’s action would be considered positive conduct; an omission, or negative conduct, occurs if someone falls into the manhole because the workers left site without putting up barriers or warning tape,” said Jordaan.
  • Wrongfulness: Each of us is bound by a duty of care based on the broad convictions of society, and the general law requires that you not injure or kill somebody, because it is wrongful to do so.
  • Fault: “Fault is determined based on whether you acted reasonably,” said Jordaan. It is usually assessed on the basis of what a reasonable persons would do in the same set of circumstances. In other words, would a reasonable person have taken steps to guard against the event. A person who suffers an injury after failing to take reasonable steps to avoid harm is said to have contributory negligence.
  • Causation: Let us assume you step into an open manhole and injure your leg; but subsequently attempt to claim damages for sinus headaches that are completely unrelated to the accident… This claim should fail because there must be causation for liability for the damage or loss to attach. In other words, you must be able to show that the event caused the damage.
  • Damage: And finally, there can be no liability without damage. It does not matter how negligent the respondent has been if the claimant has not suffered actual damage. 

Liability for pet attacks is different

You have to wind the clocks back more than two thousand years to fully understand the legal apportionment of liability following a pet attack. “In the case of dog bites you will not need to go through all five elements of delict to determine whether there is liability,” said Jordaan. “Because there is an ‘actio’ in South African law which imputes strict liability or ‘liability without fault’ for the actions of your domestic animals”. In plain English, there is no conduct on the part of the owners necessary to cause liability following such an attack. 

The ‘actio de pauperie’ has existed in the Roman Law since the Twelve Tables, around 450BC. And South African courts confirmed the ‘actio’ as far back as 1927 in O’Callaghan vs Chaplin, 1927 AD 310. The court found: “It is satisfactory to find that the ‘actio de pauperie’ still forms part of our law … I think the conclusion is a sound and a just one, for if a man chooses to keep an animal, and injury or damage is caused by it to an innocent person, he must make adequate compensation. The owner of the animal and not the person injured must bear the loss…” This position still holds today. 

The ‘actio de pauperie’ provides a framework for liability following an attack by a domestic animal. For a dog owner to be liable it must be shown that he or she was the owner and in control of the dog at the time of the incident; that the animal qualifies as a domestic animal; that the dog must have acted contrary to its nature; and, in the event the attack happened on the owner’s premises, that the victim of the attack was on the premises lawfully. “The bar for ‘contrary to its nature’ is set very high and is premised on the expectation that a domestic animal should not bite someone, attack another animal or chase a cyclist etc,” said Jordaan. 

Defending the indefensible

There are few defences available to dog owners seeking to avoid liability for their pet’s actions. These defences include provocation, conduct on the part of a third party, and trespassing. Other considerations include Vis Major or act of god and knowledge or assumption of risk. Liability will not attach if, for example, a dog owner warns someone not to attempt to pet a domestic animal because it bites, and the person ignores the warning. Likewise, a legally compliant indemnification notice should do the trick. “The ‘beware of the dog’ notice at you driveway gate is not a true indemnity,” warned Jordaan. 

There are plenty of court cases to illustrate the aspects discussed in today’s newsletter. One example is Van Meyeren v Cloete 2021 (1) SA 59 (SCA). Three dogs had escaped from the owner’s yard and attacked a worker. The owner claimed the dogs had escaped due to the action of a third party, who damaged the gate in an attempted break in. In this matter, the court again confirmed that the ‘actio de pauperie’ finds application in our law. It also determined that a dog owner cannot escape liability for the pet’s actions based on someone else’s conduct, aside from the provocation defence mentioned earlier. In Visser v Visser 2021 (4) SA 74 (KZD) a family pet bit a child. This case involved a son suing his father for damages suffered by his child, which was permissible in terms of the pet owner’s liability cover because they were not living at the same premises. The risk to insurers is illustrated by the fact the case would not have proceeded had the homeowner not had personal liability insurance. 

Spiralling damages and a litigious society

“Liability insurers will have to look closely at the ‘actio de pauperie’ and consider whether they want to change their approach to liability covers for domestic pets because it is almost certain that liability will attach in these instances,” said Jordaan. “Damages are high and litigation risk are increasing; people are becoming more litigious due to information being more readily available”. It might be time for insurers to consider additional policy wordings or exclusions specific to dog breeds or to require the insured to apply risk mitigation in the form of disclaimers, warning signs or training. 

Insurance brokers will have to educate clients that the liability attaching to their pets extends to those who are in control of the animals at the time of an incident. “There is a need for brokers to address this type of liability as dog attacks become more prevalent,” concluded Jordaan. “Dog owners must pay attention to how their dogs act and have an idea what is acceptable in terms of animal behaviour”. 

Writer’s thoughts:
The rising frequency and severity of third party liability claims is seldom discussed when clients purchase non-life insurance cover; yet some form of liability cover is included as standard in most building, contents and motor policies. Do you think more should be done to educate clients about the various liability risks they face when they purchase insurance? Please comment below, interact with us on Twitter at @fanews_online or email us your thoughts [email protected].

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