When good dogs go bad

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

Since the House of Lords decision in Mirvahedy v Henley, 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.

James McNally

James McNally

Dubbed by The Guardian newspaper as “the dog bite solicitor” James McNally is an expert in animal law. He is a previous winner of DASLS Young Solicitor of the Year and was named a “Pro Bono Hero” by the Attorney General.
James McNally

James McNally

Dubbed by The Guardian newspaper as “the dog bite solicitor” James McNally is an expert in animal law. He is a previous winner of DASLS Young Solicitor of the Year and was named a “Pro Bono Hero” by the Attorney General.

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