How a guard dog may complicate a homeowner’s liability

03 September 2018 Johannes du Plessis, RBS
Johannes du Plessis, Legal Advisor at RBS.

Johannes du Plessis, Legal Advisor at RBS.

While many homeowners and tenants keep dogs on their properties, it’s important to know that they are likely to be held liable if their animals attack a third party. This is according to Johannes du Plessis, Legal Advisor at RBS (Risk Benefit Solutions Pty Ltd), a Financial Services Provider, who says that both lawful visitors and unlawful trespassers have the right to claim damages from homeowners or tenants if they are injured by a guard dog on the property.

“Owners and occupiers of properties or buildings where dangerous conditions exist, have a legal duty to prevent injury to anyone who enters the premises. They can be held liable for damages caused from a dog bite by a domesticated pet to a lawful visitor if it behaved in a manner that is contrary to what may be expected of a well-behaved dog. In other words, if they attack without provocation. This also means that fault, intent or negligence on the part of the owner of the dog is not required for liability to a lawful visitor.”

Du Plessis adds that if it can be reasonably expected of the owner or tenant to anticipate the presence of an unlawful trespasser, they are also legally required to take precautions to prevent injury to the unlawful trespasser. “According to legal precedent, owners and tenants in areas not desolate and properties in densely populated districts are expected to anticipate the presence of an unlawful trespasser. Precautions would include the owner or tenant affixing a clearly visible warning notice at the entrance, and that any dogs are kept in such a way that trespassers are able to keep out of their way.”

The owner or tenant could be held civilly liable to repay damages to the lawful visitor or unlawful trespasser. An owner or tenant may even be criminally liable if in an extreme case the animal kills a person, according to Du Plessis.

“In one case, a trespasser attempting to escape from an animal tore his Achilles tendon and as a result suffered damages to the sum of R6 750 000. An owner or tenant held liable for such a large amount could effectively be bankrupted immediately.”

Candice Bosman, Head of Personal Lines Insurance at RBS, adds that this is why it is vital to have adequate homeowners’ liability insurance in place. “A liability policy will come into effect if you are held legally liable. Should you, for example, keep a highly aggressive dog on your property, but you do not provide the necessary fencing and warning signs, your liability policy may cover the damages if the dog jumps over the fence or if a person enters the premises and the dog bites a person.”

She says that homeowners’ liability cover is critical, even when one is not negligent. “Obviously, if you have put all the precautions in place, and an unlawful trespasser is attacked by your dog, you would not owe damages to the injured party. However, the unlawful trespasser may still put you through a court case and your liability policy may cover the legal costs during the trial.”

Bosman adds one piece of advice to homeowners and tenants who may find themselves in this situation. “Homeowners should never accept liability at the time of the incident. Should you, for example, promise to pay all the medical bills without agreement from your insurer, the insurer has the right to reject a claim. This will be based on the fact that you accepted liability and they will not be able to defend the matter in court.”

Lastly, Du Plessis states that protecting a property by means of a guard dog comes with risks, if one does not take the necessary precautions. “People are entitled to protect their property and families from trespassers however, the law expects everyone to do so in a reasonable manner. Proper notice of dogs must be displayed on the gates in a manner that is clearly visible to trespassers,” he concludes.

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