A case which we recently defended successfully at trial in Bristol, Stringer v O’Connell and Baker, highlights the importance of taking a systematic approach when a Claimant relies on s2(2) of the Animals Act 1971 in support of their claim.
Claimants who have been injured by an animal will invariably try to bring themselves within the scope of the 1971 Act, as a breach of the Act gives rise to strict liability on the part of the animal owner (i.e. they will be liable to compensate the injured Claimant without proof of any negligence).
In the Stringer case, the Claimant was walking her two dogs in a park. She met with two friends, the Defendants (who coincidentally were both insured by our insurer client), who were also walking a dog each, a Wheaten Terrier and a Labrador.
One of the Claimant’s dogs was on a lead and the other was not; both of the Defendants’ dogs were off lead, and were chasing each other at speed and playing together.
One of the Defendants’ dogs – the Claimant could not identify which one – ran into the Claimant’s leg. She fell to the ground, and suffered a fracture to her knee which required surgery.
The Claimant alleged that both Defendants were in breach of s2(2) of the 1971 Act, and were therefore strictly liable for her injury.
s2(2) reads as follows:
“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…. 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; and
(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 …”
The Claimant’s pleaded case was that the Defendants’ dogs “had a tendency to be highly boisterous, out of control, excitable and/or to run and chase each other at speed”, particularly when first meeting up with each other.
She went on to claim that these characteristics were not normally found in animals of the same species, and that these characteristics were known to the two Defendants. She therefore claimed that the Defendants were both in breach of the Act.
Our position at trial was that this was a far too simplistic approach to s2(2), and that the Judge would have to look at each sub-paragraph to assess whether the Claimant had satisfied them all.
In relation to paragraph (a), we argued that there was no evidence that the injury that the Claimant suffered was of a kind which either dog, unless restrained, was likely to cause. There was no evidence that either dog had collided with anyone or anything before, whether whilst playing or otherwise. We emphasised to the Court that whilst dogs do tend to run and play with each other, they do not habitually run into people whilst doing so.
We also contended that a dog bumping into a person’s leg was not an event that was likely to give rise to severe damage. On that basis we argued that neither limb of s2(2)(a) had been established.
In relation to paragraph (b), our case was that neither dog had a characteristic which was not normally found in other animals of the same species. It is not abnormal for dogs to chase each other when playing, and neither dog had collided with anyone or anything before.
In any event, the characteristic which the Claimant was complaining of – namely the dogs chasing each other – was not sufficient to satisfy this limb of the Act. The Claimant’s injury was not caused by the dogs chasing each other; it was caused by one of the dogs running into her. We argued that she had to prove that it was a characteristic of either dog to collide with someone or something when playing, and that there was no evidence that either dog had this tendency. Again, when dogs are playing and running together they generally avoid colliding with other people and things.
Finally, in relation to paragraph (c), we again argued that it was not enough for the Claimant to show that the Defendants knew that their dogs had a tendency to chase each other when playing – the Claimant had to show that the Defendants knew their dogs had a tendency to collide with people when doing so. There was no evidence that this had happened before, and both Defendants denied having any knowledge that their dogs had a tendency to run into people.
The Judge agreed with us that the Claimant had failed to establish a breach of any of the limbs of s2(2), let alone all of them, and the claim was dismissed.
All too often, Claimants’ solicitors seem to make an assumption that if the Claimant has been injured by the Defendant’s animal, then the Defendant is automatically liable under the 1971 Act.
This case underlines the importance of Defendants and their insurers taking a forensic approach to s2(2), and requiring Claimants to show that they can establish a breach of all three subsections.