The Uniform Civil Court Rules 2020 for civil legal proceedings in the Magistrates, District and Supreme Courts of South Australia commenced on 18 May 2020.
When a person is injured or property is damaged by an animal owned by someone else, there may be several ways to obtain compensation. The remedies vary according to the place in which the injury occurred. This is because of the different rules and standards of care which apply to the different places. In many cases, criminal liability may also apply.
The law in this area is regulated by the Dog and Cat Management Act 1995 (SA) . Under the Act, the owner or person into whose possession a dog has been delivered is responsible for any injury, loss or damage caused by his or her dog [s 66]. An attack by the dog is not necessarily required. The injury, loss or damage could be caused by the dog in any way [see Elliott & Anor v Andrew[2009] SADC 31]. A victim only has to show that there has been damage and that this was caused by the dog. It is not necessary to show that the person who is responsible for the dog was negligent or knew that the dog was vicious or dangerous. However, where:
the person who is responsible for the dog may then be only partially liable or not at all.
In the case of Vanderkop v Harding[2000] SADC 100 a dog had attacked a postman and he made a successful claim under the Dog and Cat Management Act 1995 (SA) against the dog owner.
Most household insurance policies provide public liability cover for injuries caused by dogs on the owner's property. All dog owners should make sure that they have this type of insurance. It is also possible to buy legal liability insurance which protects dog owners no matter where the injury occurs.
There are three types of compensation claims that can be made where an injury is caused by a dog.
If a dog owner is prosecuted by the local council, the injured person can provide a list of their expenses to the council who can seek an order that the owner pays compensation [Dog and Cat Management Act 1995 (SA) s 47(1)(g)]. However, this option relies on prosecution by the local council and may be of little use if the owner has no money or assets.
Because a dog owner commits a criminal offence when a dog causes injuries, injured persons may be entitled to claim compensation for their injuries under the Victims of Crime Act 2001 (SA), see VICTIMS OF CRIME - Victim's of Crime Compensation. Although the burden of proof is higher and the maximum amount of compensation much lower than what may be awarded against the owner under a Dog and Cat Management Act 1995 (SA) action, if the owner cannot be identified or does not have any money, assets or insurance, a victims of crime compensation claim may be the only claim worth making. If victims of crime compensation is awarded, the State of South Australia will pay the compensation and will try to recover the amount paid from the owner of the dog.
Another means of pursuing compensation is to take civil action against the owner of the dog under the Dog and Cat Management Act 1995 (SA) [s 66]. The amount that may be awarded is higher than under both of the other options discussed above. The injured person will have to prove (on the balance of probabilites) that the dog caused their injuries, loss or damage and determine the amount of money that will compensate them for those injuries, loss or damage. A person considering making a claim should seek legal advice from the Legal Services Commission, a community legal centre and/or a private lawyer.
Under section 18(1) of the Civil Liability Act 1936 (SA) compensation for injuries, loss or damage caused by animals (other than dogs) is decided according to the principles of the law of negligence, see Negligence.
Negligence is a failure to take reasonable care to avoid causing injury, loss or damage to another person. In determining whether an animal has been kept, managed or controlled to a reasonable standard, the courts would consider [s 18(2)]:
It is not necessary for someone claiming compensation to prove that anyone knew that the animal had a propensity to be vicious, dangerous or mischievous [see s 18(3)].
Farmers who do not maintain their fences in good order and owners who allow their pets to roam the streets may be held liable for damage to road users caused by the animals [see s 18(4)]. However, if animals escaped onto a road as a result of an unauthorised person leaving a gate open, the owner may not be held liable.
In relation to employees in close contact with animals, it may not be enough for the owner to warn about possible risks. The owner may also be obliged to ensure that accidents do not occur by providing safe handling equipment and protective gear. It will not be presumed that the employee accepted the risks attendant upon working with animals [see s 18(5)].
If an animal is injured, the owner may be able to claim compensation. It may also be possible to bring a criminal prosecution against the wrongdoer.
Compensation
If an animal is injured intentionally, either directly (for example, by shooting) or indirectly (for example, by laying poisoned bait), the animal's owner will probably have a claim for compensation.
If an animal is injured unintentionally, the owner may be able to claim negligence. This would be difficult to prove, especially if the animal was hit while on a road. In this case, the owner may be sued for damage caused to the vehicle for not controlling the animal properly. See Injuries caused by other animals.
Criminal liability
Heavy criminal penalties are imposed for the abandoning, neglect or ill treatment of animals under the Animal Welfare Act 1985 (SA) [see s 13]. Licences are required for the use of animals in science teaching, research and experimentation [s 16]. For the purposes of the Act, animals means any animal having a backbone except humans or fish [s 3].
Complaints can be made to the Police or the Royal Society for the Prevention of Cruelty to Animals (RSPCA). The Society will send an inspector to investigate a complaint and will, in many cases, take the appropriate criminal proceedings.
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