Cedric Stephens | Insurance protection for dog owners

The Dogs (Liability for Attacks) Act 2020, which this newspaper’s editors have called the Dog Attack Bill, wrongly in my view, completed the last stage of the legislative process.

It was passed by the Senate on December 5. The governor general must give his approval before it becomes effective.

I have been following this piece of legislation with interest since it was first mooted in Parliament. One of my first articles in this newspaper, 23 years ago, was titled ‘Protecting the Public from Dog Bites’. The law that was in force at the time, and which will be replaced by the new act, was The Dogs (Liability for Injuries) Act. It is a relic of the island’s post-slavery history. That law came into being in 1877.

The other reason for monitoring the bill’s progress is personal. A Rottweiler attacked me on a public road a few years ago. It suddenly climbed over a four-foot wall and sank his teeth in my left calf before I had time to react. I was walking on the far side of the road from the premises where the animal was housed.

I vividly recall hearing the dog’s owner shouting through an open window upstairs: ‘Stop, Fidel!’ The command was ignored. The assault ended when I slapped the dog hard on its hind legs with an umbrella that was thrown to me by my wife.

Significantly, the dog’s owners did not offer to reimburse the medical expenses that were incurred because of the attack. Quite inexplicably, I did not retain the services of an attorney to file a claim against the dog owners.

The new law connects dog ownership and the duties associated with ownership with liability for dog attacks and imposes criminal and civil penalties when the animal causes injury. Unlike Trinidad & Tobago’s Dog Control Act, the local law does not mandate compulsory insurance to protect dog owners against claims made by third parties.

The non-imposition of compulsory third-party insurance in the local law means that dog owners without deep pockets and insurance are now likely to face criminal and civil penalties that could run into millions of dollars.

In September 2009, dogs owned by former DJ Marion Hall, whose stage name is Lady Saw, mauled her 62-year-old helper. The court made an award of $1.5 million to the ex-employee. If Ms Hall had liability insurance, it is highly improbable that the matter would have gone to court.

Duties of dog owners

Section 4 (1) of the Dogs (Liability for Attacks) Act imposes a duty on an owner to ensure that at all times while the dog is in a public place it is: (a) kept under control; (b) fitted with a muzzle that prevents the dog from biting any individual; and (c) fitted with a restraint (such as a secured leash attached to a collar or harness), or contained in a receptacle, that allows the movements of the dog to be kept under control and prevents the dog from biting or presenting a menace to any individual.

Subsection (2) says: “The owner of a dog shall not permit the dog to enter any public place at which a notice prohibiting entry by dogs is prominently displayed,unless the dog: (a) is being used, by the occupier, to secure the place; (b) is being used for a lawful purpose by a constable or other agent of the Government; or (c) is guiding a ‘person with a disability’ as that term is defined in the Disabilities Act.”

Section 5 spells out the dog owner’s liability. “The owner of a dog shall be liable in damages for injury done by the dog in any place, other than the premises (or part thereof) referred to in Section 3 where the dog is kept, or permitted to live or remain, and it shall not be necessary for the party seeking compensation in damages to show: (a) a previous mischievous propensity in the dog; (b) the owner’s knowledge of a previous mischievous propensity in the dog; or (c) that the injury was attributable to neglect on the part of the owner. Compensation shall be recoverable in any court of competent jurisdiction … .”

When dog owners violate their statutory duties, they are also liable to be charged with committing criminal offences under Section 6. Where a dog attacks an individual in any place, other than the premises where the dog is kept or permitted to live or remain, the owner of the dog commits an offence.

Criminal penalties

Penalties can be imposed by a parish court under Section 8 as follows:

• A sum not exceeding $500,000, or, in default of payment, imprisonment for up to six months, where the person had not previously been warned, whether in respect of the same dog or another.

• A sum not exceeding $1 million, or imprisonment for up to six months, in any case where the attack did not result in injury to an individual and the person had previously been warned under Section 10, whether in respect of the same dog or another.

• A sum not exceeding $3 million, or imprisonment for up to three years, in any case where the attack results in injury to an individual.

Where death or debilitating injuries resulting from the attack occur, these offences will be tried in the Circuit Court. Larger fines and/or longer terms of imprisonment will be imposed.

Even though the new law will create significant legal exposure for the average dog owner, it appears that lawmakers did not examine whether these risks could be transferred to the insurance system at a reasonable cost – much in the same way that risks associated with the ownership of motor vehicles are now being handled.

The omission is likely to lead some victims of dog attacks ‘sucking salt’ unless the market develops a solution. Up to press time, the Insurance Association of Jamaica had not responded to my request for comment.

- Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to aegis@flowja.com.