Injured in a Dog Attack. Can I Sue?

If you are injured in a dog attack you may be able to take legal action against the owner, writes Adelaide injury lawyer Mal Byrne.

“Man’s best friend”might apply when the man is the owner, but it doesn’t always apply when the man is a stranger.  Sometimes dogs attack humans.  Some dogs are inclined to attack due to breeding, training or ill-treatment by the owner.  Sometimes, a placid dog will attack if provoked or when feeling threatened.  Generally, the law grants dogs similar concessions to humans.  A dog that attacks in genuine self-defence or to protect its owner will be excused.  A dog that is provoked may escape some blame.  Where the law treats dogs and humans differently is in recognising that dogs do not have money or insurance and cannot pay compensation to victims.

The relevant law in South Australia is Section 66 of the Dog and Cat Management Act 1995.  If you are injured in a dog attack, you may be able to take civil action against the dog’s owner.  Before you do so, there are two things that you need to consider.  Firstly, you will need to have suffered an injury that significantly impairs you for a period of seven days following the attack.  Hence, if you suffer a minor laceration that only requires a band-aid, there is no point in taking action.  If you suffer a more serious laceration and have scarring, you should consult a lawyer.  If the dog attack is so severe that you suffer multiple injuries or the bite is so deep that you suffer internal damage, such as a damaged tendon in a hand, you must consult a lawyer. Some people (children especially) can suffer post traumatic stress disorder after a dog attack. If that happens, you should also consult a lawyer. Secondly, you also need to consider whether it is worthwhile suing from a commercial perspective.  If the owner has home and contents insurance, the policy will normally cover the owner for injuries caused by a dog attack.  If the owner does not have home and contents insurance, you need to consider whether the owner has any money to pay compensation.

Only the owner of the dog is liable.  However, if the owner is a child (under the age of 18), the child’s parents or guardians will be liable.

Section 66 is a strict liability provision.  What that means is that the victim of a dog attack does not have to prove that the owner was negligent or that the owner had knowledge that the dog was vicious or dangerous.  Hence, an owner of a dog who has never attacked a human and has been placid for all its life will still be held liable if the dog launches an uncharacteristic attack and causes injury.

There are certain exceptions where the owner may only be held partially liable or not liable at all, and liability will be decided according to the principles of negligence. These exceptions are:

1. If the dog is provoked by the victim or a person other than the victim;

2. If the dog is attacked by another dog not belonging to the owner.  This is an important exception, as many dog attacks occur when one person is walking their dog and confronts another person either on their property with their dog, or walking their dog in the opposite direction;

3. If the victim trespasses on land in which the dog is kept;

4. If the dog attacks in reasonable defence of its owner, another person or property;

5. If the dog has been stolen from the owner and is effectively out of the possession or control of the owner when the attack occurs;

Provocation is defined as teasing, tormenting or abusing the dog, any act of cruelty, or attacking the owner of the dog or a person whom the animal could reasonably be expected to be protective of.

If the owner does not have any money, you may be able to seek compensation under the Victims of Crime Act 2001 as a victim of a crime.  The Dog and Cat Management Act sets out a number of offences.  Under Section 43 of the Act, it is an offence for an owner to allow their dog to wander at large.  Hence, if you are attacked and injured by a dog wandering at large and the owner is convicted, you can sue under the Victims of Crime Act 2001.  This is so even though it is the local government authority that prosecutes the owner and not police.  A dog is taken to be wandering at large if it has escaped or been allowed to walk the streets by its owner.  If the owner is present, the dog can still be deemed to be wandering at large if the dog is either not physically restrained, or not restrained but close enough to the owner and in vision of the owner to be disciplined by command.  A dog will not be taken to be wandering at large if the dog is in a vehicle.

The definition of exercising effective control over a dog by physical restraint means a chain, cord or leash that does not exceed two metres in length restraining the dog or other similar objects.  A dog that is tied to a post by a chain, cord or leash that does not exceed two metres in length will be deemed to be under effective control even if the owner is not present.  Hence, you are taking a risk if you pat a dog in those circumstances.

It is also an offence to set on or urge a dog to attack, harass or chase a person or to chase that person’s dog, other animal or bird.  If you are injured in those circumstances, you will be able to sue under the Victims of Crime Act 2001.  The attack however must be unprovoked.  If you have provoked the dog, you may not get compensation at all or you might have your compensation reduced.

In terms of restraining dogs in vehicles, a dog in the back of a Ute that is not in a cage or securely tied to the vehicle so that it cannot escape will not be deemed to be restrained.

In summary, dogs are expected to be good citizens.  If they are not, their owners may be held liable civilly and may be prosecuted for the dog’s actions.  The dog is at risk of being destroyed.  However, the Courts recognise that dogs love their owners and have natural protective instincts.  They also recognise that dogs can be provoked to violence and they have a right to defend themselves if threatened.  Hence, no matter how cute, placid or attractive that dog sitting in a car, tied to a post or with its head pushed up against a fence might look, Beware!

For further information or assistance with your legal matter contact us.