Liability for Injuries Caused by Dogs. Jonathan Owen

Transcription

1 Liability for Injuries Caused by Dogs Jonathan Owen

2 Introduction 1. This article addressed the liability for injuries caused by dogs, such as when a person is bitten, or knocked over by a dog. Such cases, although often not factually complicated, do raise difficult legal points. The broad principles in play are of course not unique to injuries caused by dogs, with the principles governing the liability for injuries caused by animals generally. 2. The two potentially viable heads of civil liability will be common law negligence and liability under the Animals Act 1971 (hereafter the Act ). Each is addressed in turn below, as well as the inter-relationship between the two, with this article seeking to draw some conclusions about the circumstances in which liability will be established. The Act 3. The Act concerns the keeper of a dog, which is defined materially in section 6 of the Act as the person owns the animal or has it in his possession; or... is the head of a household of which a member under the age of 16 owns the animal or has it in his possession. 4. The two potentially applicable statutory liabilities are under Section 2(1) and Section 2(2) of the Act. Section 2(1) 5. Section 2(1) of the Act provides that where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act. 6. As commented by Kay L.J. in Turnbull -v- Warrener [2012] EWCA Civ 412 (hereafter Turnbull ) this is a form of strict, albeit not absolute, liability. 2/12

3 7. A dangerous species is one which is not commonly domesticated in the British Islands and whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe. See section 6(2) of the Act. 8. If the animal is a member of a dangerous species then the keeper will be liable for any damage caused by that animal, subject only to the statutory defences, which are addressed below. This is a broad liability which will attach howsoever the injury was caused by the animal (by biting, bumping or any other means, so long as the animal was the cause). 9. This sub-section, however, has limited practical application to dog-biting cases in circumstances in which most cases will fall at the first hurdle because most dogs will not be classified of being of a dangerous species because even potentially dangerous dogs which will be encountered in the ordinary course of events are commonly domesticated in the British Islands. 10. Accordingly, in dog biting cases, the real work of the Act is done by Section 2(2) of the Act. Section 2(2) 11. Section 2(2) of the Act provides that:- Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if - (a) The damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; (b) The likelihood of the damage or of it being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and (c) Those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as the keeper s servant or, where that keeper is the head of a 3/12

4 household, were known to another keeper of the animal who is a member of that household and under the age of Shortly after the entry in force of the Act, Lord Denning MR predicted in Cummings -v- Grainger [1977] QB 397 (CA) (hereafter Cummings ) ( the case of the barmaid who was badly bitten by a big dog per Lord Denning MR) as follows:- The section is very cumbrously worded and will give rise to several difficulties in future. 13. Having moulded the development of so many areas of law, it is probably not surprising that Lord Denning MR was correct in his prediction, and 35 years later Kay L.J. commented in Turnbull that the drafting, which has attracted four decades of judicial and academic criticism, is grotesque. Be that as it may, however, Section 2(2) of the Act remains good law, even if it continues to vex the Courts, and will be the single most important legal provision in the majority of dog-biting cases. 14. Each of the conditions of Section 2(2) needs to be considered in turn and each needs to be satisfied for liability to be established. (a) The damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe (hereafter condition (a) ). 15. There are two conditions within this first requirement, either, rather than both of which, needs to be satisfied. Kay L.J. in Turnbull put it this way at paragraph 10:- In order to succeed, a claimant has to satisfy at least one of them. In interrogatory form, they are: is the damage of a kind which the animal, unless restrained, was likely to cause? Alternatively, is the damage of a kind which, if caused by the animal, was likely to be severe? 16. In a dog biting case this condition will rarely not be met if any injury of significance of has ensued. As Jackson L.J. commented in paragraph 33 of Goldsmith -v- Patchcott [2012] EWCA Civ 183 (hereafter 4/12

5 Goldsmith ) it should be noted that this sub-section will only eliminate a small number of cases. Most animalrelated damage which someone wishes to sue about will fall into one or other of those two categories. 17. This is particularly so in circumstances in which likely is not a hard threshold to cross: it merely means reasonably to be expected (see Kay L.J. in Turnbull at paragraph 12, relying on Mirvahedy -v- Henley [2003] 2AC 491 (HL) at - hereafter Mirvahedy - and Freeman -v- Higher Park Farm [2008] EWCA Civ 1185 (CA) - hereafter Freeman ). 18. The application of this condition is a matter for the facts of any given case. In some circumstances expert evidence on the point will not be required with the matter speaking for itself. For example, in the case of Cummings the animal in question was an Alsatian dog and Lord Denning M.R had little difficulty in concluding that if it did bite anyone, the damage was likely to be severe. In the case of a small, less potentially aggressive breed, however, that proposition would not necessarily speak for itself, and might not be satisfied. Close attention therefore has to be given to the breed of dog in question. (b) The likelihood of the damage or of it being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances (hereafter condition (b) ). 19. If condition (a) is satisfied, it is, in light of the law as it stands, really very difficult to foresee condition (b) not being met in a dog biting case. That is because condition (b) is met either when the conduct of the particular animal is not characteristic of its own species in the particular circumstances of the case or where the behaviour was so characteristic of the species in the circumstances of the particular case. In other words, it does not matter if the relevant characteristics are entirely abnormal for the species in question, or entirely normal for the species in question, provided that they are only found (in this particular animal or the species generally) at particular times or in particular circumstances. It should almost always be possible to frame the claim in such a way that this is satisfied:- (i) [Condition (b)] will be satisfied whenever the animal s conduct was not characteristic of the species in the particular circumstances. [Condition (b)] will also be satisfied when the animal s 5/12

6 behaviour was characteristic of the species in those circumstances : please see Lord Nicholls in R Mervahedy at paragraph 43. (ii) The fact that an animal s behaviour, although not normal behaviour of animals of that species, was nevertheless normal behaviour for the species in the particular circumstances does not take the case outside [condition (b)] : per Lord Nicholls in Mervahedy at paragraph In circumstances in which the condition covers both animals which act abnormally for the species and also species whose normal conduct can be dangerous in particular circumstances, as commented by Jackson L.J. in Goldsmith it is not obvious... what purpose [condition (b)] serves (see paragraph 40), with Lord Nicholls having commented in Mervahedy at paragraph 42 that the interpretation of condition (b) which has been adopted seems to leave [condition (b)] with very limited content. (c) Those characteristics were known to that keeper or at any time known to a person who at that time had charge of the animal as that keeper s servant or, where that keeper is the head of a household were known to another keeper of the animal who is a member of that household and under the age of 16 (hereafter condition (c) ). 21. In light of the only modest limiting scope of liability provided by condition (a) and condition (b), condition (c) will often be one of the most crucial areas of dispute in a case about a dog who has bitten someone. It will depend upon a knowledge of the animal s characteristics and the history of the dog s previous conduct. 22. Condition (c) is, however, not a charter for an owner to avoid liability simply on the grounds that the particular animal has not caused an accident before. It is not the case that every dog is allowed one bite. It is not just knowledge of the animal s own personal particular characteristics which is relevant. As Dyson L.J. made clear in Welsh -v- Stokes [2007] EWCA Civ 796 (hereafter Welsh ) I do not see why a keeper s knowledge that a horse has the characteristic of normally behaving in a certain way in particular circumstances cannot be established by showing that the keeper knows that horses as a species normally behave in that way in those circumstances.... It may no sense to require a keeper, if aware of that general characteristic, to have some additional and more particular knowledge. That statement, in my opinion, applies as much to species of 6/12

7 dog as it does to horses. If a certain species is known to behave in a certain way, it will be difficult for an owner to escape liability on the basis that his or her particular example is a particularly gentle exception to the rule. 23. Accordingly, there has to be a careful analysis of the characteristics of the particular species of animal (including at particular times or in particular circumstances) as well as the knowledge of a particular owner about the particular history and characteristics of his her own animal. Expert Evidence 24. Careful consideration should always be given, on each side, as to whether or not expert evidence is necessary to resolve the dispute. Expert evidence could legitimately and easily go to condition (a) and (b) (the characteristics of the animal and its species) as well as, at least indirectly, to condition (c) (because knowledge of characteristics of an animal can be established by knowledge of characteristics of a species). There will be some cases, at the plain or obvious end of the spectrum, in which expert evidence is not required (or necessary for the purposes of CPR Part 35) where the various conditions speak for themselves (particularly by reference to dogs of aggressive and large breeds). However, a conscious decision has to be made about that because both sides run a risk in not obtaining expert evidence. On the Claimant s side the risk is that the conditions will not be satisfied, with the burden of proof being upon the Claimant whereas on the Defendant s side if evidence is not obtained on the point there is the risk that the Court will simply fill the gap by treating the matter as speaking for itself and forming its own conclusion, in the Claimant s favour. Statutory Defences 25. In a case of a dog biting a person consideration should always be given to the statutory defences when assessing the merits of the case, and when pleading the case, with the Defendant having the burden of establishing those statutory defences:- (i) Under Section 5(1) of the Act a person is not liable for any damage which is wholly due to the fault of the person suffering it. Fault has the same meaning as in the Law Reform 7/12

8 (Contributory Negligence) Act 1945 (hereafter the 1945 Act ) (see s. 11 of the Act), meaning negligence, breach of statutory duty or other act or omission which gives rise to liability in tort or would, apart from this Act, give rise to the defence of contributory negligence. The circumstances will probably be quite rare in my opinion in which an injured person is the only person to have any fault in the causation of an accident suffered by reason of a dog in relation to which liability under the Act attaches. (ii) Under Section 5(2) of the Act a person is not liable for any damage suffered by a person who has voluntarily accepted the risk thereof. Useful guidance has been given as to this by Etherton L.J. in Freeman at paragraph 48:- the words of Section 5(2) are simple in English and must be given their ordinary meaning and not be complicated by fine distinctions or by reference to the old common law doctrine of volenti... what must be proved in order to show that somebody has voluntarily accepted the risk is that (i) they fully appreciated the risk, and (ii) they exposed themselves to it. This defence might be made out with relative ease in cases concerning horse riding accidents. It is, however, much more difficult to conceive of circumstances in which a person would voluntarily accept the risk of injury by a dog. (iii) Under Section 5(3) of the Act a person is not liable for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either - (a) that the animal was not kept there for the protection of persons or property; or (b) if the animal was kept there for the protection of persons or property, that keeping there for that purpose was not unreasonable. This can prove an important defence in cases concerning dog bites. A trespasser has no protection from the Act unless the animal was a guard dog and it was unreasonable to keep that animal as a guard dog. A Defendant should, however, carefully analyse that defence before pursuing it and a Claimant should consider the same with a critical eye, because it depends upon the claimant being proven to be a trespasser. This depends upon an analysis of that common law concept and is not a question which is always easy to judge. For example, the case of a person who walks up a drive to knock on someone s door without permission, whilst not intended by the keeper of the animal to be there (and the keeper might therefore accordingly see that person in their own mind as trespasser): such a person, however, would not ordinarily be a trespasser at law, there being an implied invitation 8/12

9 to persons generally to call for lawful purposes at other persons houses. It will therefore not be enough for the keeper to prove simply that the Claimant was in a place where he, the keeper, did not want the Claimant to be, but rather the keeper will have to prove that the Claimant was in a place where objectively under the law of trespass the claimant ought not to have been. Contributory Negligence 26. Just as at common law contributory negligence can provide a partial defence to liability under the Act. However, causative fault on the part of the Claimant would have to be shown and again, in the case of a dog biting a person, it is not easy immediately to identify conduct to which such criticism would legitimately attract. Again, however, the defence is there to be made out if the defendant is able. Common Law Negligence 27. Common law negligence should not be overlooked as a cause of action. There is a duty of care at common law on the part of a keeper of an animal to take reasonable care to avoid the animal injuring another person. That duty of care is almost so obvious as to be assumed: see e.g., paragraph 13 of Whippey -v- Jones [2009] EWCA Civ 452 (hereafter Whippey ). Breach duty is to be judged not simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then tested it against an objective standard of reasonable behaviour. Before holding that a person s standard of care has fallen below the objective standard expected and so finding that he acted negligently, the Court must be satisfied that a reasonable person in the position of the defendant (i.e., the person who caused the accident) would contemplate that injury is likely to follow acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the Defendant) to anticipate it (Aikens L.J. in Whippey at paragraph 16). 28. Although common law liability can theoretically be wider than the Act, in light of the relative ease with which condition (a) and condition (b) can be satisfied under Section 2(2), and given that the knowledge requirement in condition (c) mirrors to some extent the same considerations as common law (knowledge 9/12

10 and foreseeability of risk) it will be a rare case in which common law liability will be established without liability also being established under Section 2(2) of the Act. Conclusions 29. Accordingly, it appears to me that:- (i) Section 2(1) of the Act is unlikely to apply in a dog-biting case, because most dogs which will be encountered, even if of a potentially aggressive breed, will be commonly domesticated in the British Islands, and accordingly not of a dangerous species. If the section does, however, in a rare case apply, it is an entirely strict liability, subject only to the statutory defences. (ii) The real heart of the dispute will in any case generally be Section 2(2) of the Act, and in that regard:- (a) Condition (a) will often be satisfied in the case of any injury of real significance, as will condition (b) (which has a particularly limited role now). (b) The real battleground will often be condition (c) and knowledge of the characteristics of the animal (although knowledge of the characteristics of the species in question can suffice). (c) Careful consideration will have to be given as to whether or not expert evidence should be obtained because it can go at least conditions (a) and (b) and can at least indirectly have a role in determining (c). Not every case calls for expert evidence, but both sides run risks if it is not obtained in cases in which it is called for: careful thought therefore has to be given to that procedural decision. (iii) The statutory defences are unlikely to have application save and except the trespassing exception under Section 5(3) of the Act (although a careful scrutiny will have to be given as to whether or not a person is a trespasser) albeit if the Defendant can in the correct case make 10/12

11 out the defences under Section 5(1) (Sole Fault of the Claimant) or Section 5(2) (Voluntary Assumption of the Risk), then those defences remain open to the Defendant in the right case. (iv) Common law negligence should also be considered but, given the width of condition (a) and condition (b) and the ease with which they can be satisfied in Section 2(2) and given that the considerations under condition (c) of Section 2(2) closely mirror those at common law, it appears unlikely that in reality liability at common law will be wider in a dog-biting case than under Section 2(2). Jonathan Owen October /12

12 Jonathan Owen Jonathan Owen was called to the Bar in He is a specialist in personal injury, clinical negligence, disease, fraudulent claims, regulatory, costs, business and property, employment, planning and environmental and local government claims. jonathanowen@ropewalk.co.uk Disclaimer: The information and any commentary on the law contained in this presentation is provided free of charge for information purposes only. The opinions expressed are those of the writer and do not necessarily represent the view of Ropewalk Chambers as a whole. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the writer nor by Ropewalk Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comment contained within this Article. 12/12