When good dogs go bad

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James McNally investigates the possibility of strict liability under the Animals Act 1971

James McNally is a partner at Slee Blackwell

Since the House of Lords decision in Mirvahedy v Henley & anor [2003], claims for injuries caused by animals have caused claimant and defendant solicitors equal amounts of stress and confusion, and have kept the Animals Act (AA) 1971 topical for almost six years. In the past two months DEFRA has closed its consultation on a proposal to amend s2(2)(b) AA 1971, seeking to clarify the application of strict liability to the keepers of animals that cause harm or damage. DEFRA believes that this amendment will help to protect animal owners who have taken all reasonable precautions to prevent their animals causing harm. While the results of the consultation are awaited, the most recent attempt to clarify the law relating to animal injuries was the Court of Appeal decision in Whippey v Jones [2009] EWCA Civ 452.

Background

On the afternoon of 23 June 2004 Andrew Jones was visiting Leeds on a business trip and decided to go for a jog along the River Aire. As he did so he was approached by a two-year-old Great Dane called Hector, owned by RSPCA inspector Christopher Whippey. Hector was fully grown and weighed some 12½ stone. He had been ill-treated as a puppy and was wary of strangers, with a tendency to approach them to investigate while remaining at a distance. Although this behaviour could be interpreted as aggressive, it was not intended by the dog as such. He had no tendency to jump at other people and was described by the judge at first instance as ‘the most gentle of creatures’. It was, however, Mr Jones’s case that Hector jumped up, striking his shoulder and knocking him down a slope by the river bank, breaking his ankle in the process.

Mr Jones claimed that Mr Whippey had been negligent in the way he had handled Hector, and that Mr Whippey was liable to him under the provisions of AA 1971, in particular under s2.

First instance

The trial took place on 17 July 2008. HHJ Bartfield ruled that Mr Whippey was not liable under AA 1971 on the grounds that Mr Jones had failed to prove s2(2)(a), namely that the damage caused by Hector was of a type he was likely to cause. The judge felt that the type of injury was ‘certainly a possibility’, but not likely. However, HHJ Bartfield held that Mr Whippey was liable in negligence stating:

The responsible carer must ensure, and take reasonable care to ensure, that a dog does not put people in a position where they might reasonably foreseeably suffer some sort of injury. On this occasion alone, in my view, the defendant did not fulfil that duty. When counsel for [Mr Whippey] described it as a level of perfection, I would simply say it is responsible and properly responsible to do this, and he should not have let the dog off the leash without either checking more carefully that somebody was not there or alternatively bearing in mind the possibility that someone might arrive. In the end, the momentary decision to let the dog off the lead, in circumstances that were not safe, was directly causative of this injury in either version.

Mr Jones was awarded £15,359.10 plus costs and Mr Whippey was given permission to appeal.

Appeal

Mr Whippey’s appeal was on the basis that the judge had erred in finding him negligent. Although there was evidence that Hector would go up to within five or ten feet of people and bark, there was no evidence that he would run up to someone and physically touch them. Mr Whippey had also stated in cross examination that he would not foresee ‘harm befalling a member of the public if [Hector] was running free’. If Mr Whippey, acting as a reasonable dog handler, could not have anticipated that this type of injury would have occurred if Hector encountered a runner, then the judgment was wrong.

The Court of Appeal considered the matter on 30 March 2009. They found that a duty of care existed and that the injury was not too remote. The only issue therefore was whether or not the judge was correct in concluding that Mr Whippey’s handling of Hector that day fell below the standard to be expected of a reasonable handler of Hector in the circumstances of that afternoon. Would a reasonable person in Mr Whippey’s position contemplate that injury was likely to follow from his acts or omissions? Was there a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it?

HHJ Bartfield’s test for the standard of care expected was considered, namely that:

… the responsible carer must ensure, and take reasonable care to ensure, that a dog does not put people in a position where they might reasonably foreseeably suffer some sort of injury.

It was held that here the judge had indeed erred. The judge had not placed sufficient emphasis on the need to establish that there was such a probability of physical injury occurring to another park user by Hector making physical contact with them that Mr Whippey, acting as a reasonable dog handler in the circumstances, should have anticipated and acted accordingly before letting Hector off the lead.

If he had, then having found expressly that Hector did not have a tendency to jump up at other people, HHJ Bartfield should have concluded that there was no reason why Mr Whippey should have foreseen that Hector would cause physical harm to Mr Jones by bounding up and striking him. Thus there was no negligence.

The judge’s dismissal of any claim under AA 1971 and his statement that such an injury was only possible and not likely added further weight to the belief that the wrong test had been applied. As a result the appeal was allowed.

Analysis

With this decision the Court of Appeal appears to confirm that liability under AA 1971 and negligence are one and the same, and that the test for responsibility under AA 1971 should be applied when looking at whether or not a defendant is also negligent. If a claim fails under AA 1971 because the type of injury is not likely then the defendant cannot be liable under negligence, as the type of injury would not have been foreseeable.

Unfortunately the decision in Whippey did little to clarify AA 1971 itself and, as far as clearing up any of the confusion caused by Mirvahedy and its aftermath, the judgment is somewhat lacking.

As HHJ Bartfield dismissed any claim under AA 1971 their Lordships didn’t have to trouble themselves too much with this area of the law. The judgment makes no reference to Mirvahedy and instead relies on the safer ground of Donoghue v Stevenson [1932] and Bolton v Stone [1951]. One can imagine the sighs of relief coming from the Court of Appeal when it realised that the pertinent issues did not encroach on Mirvahedy territory. This seems a pity because HHJ Bartfield’s decision not to allow a claim under AA 1971 is often skirted over in reports of the case. It is, however, one of the most interesting aspects of Whippey, but like anything which appears to be associated with AA 1971, the judge’s reasons have caused confusion.

A summary of the decision in Whippey in Practical Lawyer 198, May 2009, p27, read:

Indeed, liability under the Act did not apply because the injury caused was not ‘of a type which the animal was likely to cause’.

At first reading this causes some concern. If a big dog knocks into a jogger, isn’t it likely that the dog will cause injury? Indeed, Whippey is unusual in that it is a large dog case where it was felt that injury under s2(2)(a) AA 1971 was not likely. The fact that injury was not deemed likely seems to have been more a question of semantics than the law. HHJ Bartfield noted Hector’s size and tendency to approach strangers, investigate and bark in what could be interpreted as an aggressive fashion, and noted that ‘such a breed of dog can be intimidating to mankind’. However, on the basis the Hector had no tendency to jump up at other people, he decided that that injury:

… would certainly be a possibility, as I have already said in relation to my assessment of the facts of the claim under the heading of negligence, but I do not find it is a type of injury the dog was likely to cause.

There are arguments that it is a rather subjective point whether or not something possible can also be likely. However, HHJ Bartfield was drawing a distinction highlighted by Lord Scott in his speech in Mirvahedy.

The word ‘likely’ shall, in my opinion, be accorded the same meaning in section 2(2)(a) as it has in section 6(2)(b). If a commonly domesticated animal causes damage, the first two questions, if strict liability is to be imposed, are whether the damage is of a kind that the animal, unless restrained, was likely to cause or whether the damage is of a kind which, if caused by the animal, was likely to be severe. The answer to these questions cannot be answered by simply referring to the seriousness of the damage actually caused in the case in question. To do so would be to ignore the inclusion in the statutory language of the word ‘likely’. If a large domesticated animal, say a horse or a bullock, finds itself loose and unrestrained in a public place it may cause personal injury or injury to property. But is it likely to do so? If it does cause personal injury or injury to property is injury of that kind likely to be severe? Neither of these questions can be answered simply by saying that the animal has in fact caused severe damage to the complainant or has in fact caused severe damage to his property. If that were the right approach paragraph (a) could simply have read ‘or which, if caused by the animal, was severe’.

Lord Scott’s view was that under paragraph (a) the word ‘likely’ had to be taken to mean ‘to be reasonably expected’.

Comparable cases Cowley v Clements

This was a view Deputy District Judge Bruce shared in Cowley v Clements [2006]. The facts are similar to Whippey in that it is another large dog injury.

Mrs Cowley had been walking her Alsatian, Kira, in an orchard in Kent at the same time as Mrs Clements was practising dog training exercises with her Newfoundland, Fliss. Fliss was an 18-month puppy, but still weighed in the region of six-and-a-half stone. Fliss wandered away from Mrs Clements and approached Kira. Kira was a mature dog and had no interest in playing. Fliss’s behaviour at this time was found to be ‘boisterous’. As Mrs Cowley spotted Mrs Clements in the distance and let out a loud ‘yoo-hoo’ she was struck by Fliss, suffering a broken leg as a result.

Mrs Clements was not found to be negligent. It was found reasonable that she had taken Fliss off the lead to carry out training exercises with her and it was not felt unreasonable that training had not been started earlier than 16 months. However, strict liability was applied under AA 1971.

In considering s2(2)(a) Deputy District Judge Bruce stated:

What I have to determine is whether the damage is of a kind which is likely to be caused or, to use another phrase which has received approval in the House of Lords and was adopted by Neale LJ in Smith v Ainger, an unreported case in which judgment was given on 16 May 1990 in the Court of Appeal, that the word ‘likely’ in section 2(2)(a) could also mean ‘reasonably to be expected’. In my judgment, taking into account the size of Fliss, that she was at the material time largely untrained, and having regard to her weight and enthusiastic, boisterous demeanour, I am satisfied that the damage, ie personal injury to Mrs Cowley, was damage which could reasonably be expected to be caused if Fliss was left unrestrained. I am therefore, satisfied that section 2(2)(a) of the Animals Act 1971 is satisfied.

In making his decision Deputy District Judge Bower was mindful of the decisions in Elliott v Townfoot Stables [2003] and Plum v Chorley Equestrian Centre [2004]. In both cases unseated riders suffered injury, but in both instances it was decided that there was not strict liability under AA 1971, as regardless of the actual severity of the injury suffered, damage was only a mere possibility if the rider was unseated and that, if caused, it was not ‘likely to be severe’. Deputy District Judge Bower’s view was that Elliott and Plum were:

… distinguishable from the facts of this case because this case involves not the riding of a horse but rather walking in and around a young playful puppy which barged into Mrs Cowley. I think the cases are distinguishable on that basis and my finding is consistent with the Court of Appeal’s decision in Smith v Ainger and as considered in Mirvahedy by the House of Lords. So I do not find that those cases compel me to take an alternative view of section 2(2)(a).

Deputy District Judge Bower’s explanation is not entirely clear, and at first reading it is easy to take a view that as far as Elliott and Plum are concerned he was simply trying to find the quickest route around them. However, this is far from the truth. In both cases it was found that the claim failed under s2(2)(a) AA 1971, but importantly in both cases this decision was reached without the Court looking at the characteristics of the animal in question. In Elliott the horse had a tendency to make a sudden movement if the rider inadvertently touched a sensitive spot, and in Plum the horse had a tendency to buck when the rider pulled too hard at a trot or canter. These are issues relevant to s2(2)(b), and so were effectively ignored by the recorders in each case, who dismissed the claims following their failure to meet s2(2)(a). But they were wrong to do so, as the specific characteristics of the animal in question are also relevant to s2(2)(a) and key to determining what is ‘likely’.

Clark v Bowlt

Two months after the decision in Cowley, the Court of Appeal confirmed the relevance of an animal’s characteristics in Clark v Bowlt [2006]. In this case a horse had stepped off a verge and into the path of a passing vehicle. At the first instance HHJ Walton found that although there was no negligence on the part of the horse owner s2(2)(a) was satisfied. He felt that the horse was likely to cause damage and that the damage was likely to be severe as the horse weighed some 600lbs. He also found that at certain times and under certain circumstances a horse had an inclination to move in a direction other than that indicated by the rider, and that this was a characteristic which satisfied s2(2)(b) AA 1971. Damages were awarded as a result. Again, the decision was appealed.

The Court of Appeal held that in finding that s2(2)(a) was satisfied solely because of the weight of the horse, HHJ Walton should have explained why the horse’s weight was either an abnormal characteristic or a characteristic found in horses only at particular times or in particular circumstances. By failing to do so the judge had wrongly found that s2(2)(b) was satisfied.

Similarly, the Court of Appeal found that the judge had erred in finding that the horse had a ‘characteristic’ to move in a direction other than that directed. It was doubted that this inclination (which at times HHJ Walton appeared to imply was almost normal behaviour) could be considered a ‘characteristic’. Nor was it clear from the judge’s reasoning the particular times or circumstances during which the horse would react in this way. If it was a normal characteristic then it would be excluded from s2(2)(b). This tendency to move without warning was not in any event relevant to s2(2)(a) as it only addressed whether the damaged caused was likely unless the animal was restrained. It ignored the need to show how that ‘characteristic’ could have caused damage which was likely to be severe. The link between s2(2)(a) and s2(2)(b) was firmly established.

Conclusions

Returning to Cowley and the approach taken by Deputy District Judge Bower, it is apparent that he was correct to draw the distinction between the injury caused by Fliss and the decisions in Plum and Elliot. He did so not because these decision were flawed but because he identified the relevant characteristics in the ‘young, playful puppy’, and their relevance to s2(2)(a) and s2(2)(b). He noted that because of these characteristics severe injury was not just possible but likely. It was ‘reasonably to be expected’.

In light of this HHJ Bartfield’s decision to dismiss the claim under AA 1971 is far less surprising. Hector was a big dog and the possibility of him injuring someone was clearly there. However Hector’s specific characteristics made this unlikely. This meant that even if HHJ Bartfield had felt that s2(2)(a) did apply, the claim would still have been dismissed because it failed s2(2)(b). As was shown in Cowley and later Clark, the two sections cannot be considered independent of each other. That anyone should question a contrary decision is not just possible or indeed likely but a certainty.

Bolton v Stone [1951] AC 850

Clark v Bowlt [2006] EWCA Civ 978

Cowley v Clements (Unreported, Medway County Court, 24 April 2006)

Donoghue v Stevenson [1932] AC 562

Elliott v Townfoot Stables (Unreported, 3 September 2003)

Mirvahedy v Henley & anor [2003] UKHL 16

Plum v Chorley Equestrian Centre (Unreported, Preston County Court, 5 November 2004)

Smith v Ainger (The Times, 5 June 1990)

Whippey v Jones [2009] EWCA Civ 452