8.4.09

Dog owner not negligent for unleashing his dog; reasonable person would not contemplate that injury was likely to follow.  

Whilst Mr Jones was running along a footpath by a river in June 2004 he had an encounter with a Great Dane called Hector who was owned by Mr Whippey. Hector jumped up at Mr Jones' shoulder, as a result of which Mr Jones fell down a slope and broke his ankle. Mr Jones sued Mr Whippey claiming that he had been negligent and that he was liable under the Animals Act 1971. Because of ill treatment as a puppy, Hector was wary of strangers, which manifested itself in a tendency to approach them to investigate and occasionally bark, but not to jump up. At first instance Mr Jones was held not to be liable to Mr Whippey under the Animals Act but to be liable to him in negligence. This was on the basis that he should not have let Hector off the leash without checking more carefully that no one was around, or bearing in mind the possibility that someone might arrive.  

Held: Having found that a duty of care existed and that the injury was not too remote, the Court of Appeal held that the only issue was whether the Judge was correct to conclude that Mr Whippey’s conduct in handling Hector fell below the standard to be expected of a reasonable handler in the circumstances i.e. whether a reasonable person in the position of Mr Whippey would contemplate that injury was likely to follow from his acts or omissions. There was no reason why Mr Whippey should have anticipated that physical harm to an adult would result from letting Hector off the lead. Accordingly the appeal was allowed.  

Comment: Likelihood of injury/damage i.e. that it is a probability and not merely a possibility, is a necessary ingredient for a finding of liability both in negligence and under s.2 of the Animals Act. Accordingly, a claim cannot fail under the Animals Act on this basis and then succeed in negligence. It is not surprising that the claim against the dog’s owner failed in the Court of Appeal.  

Claims against animals are topical at the moment as DEFRA is consulting on proposed amendments to s.2 of the Animals Act, with the intention of clarifying when strict liability will apply under the Act and reducing the number of successful claims.