When Liability Bites
Although there are no official figures, the best estimate is that there are 6.1 million dogs kept as pets in the UK (one for every ten people). Sadly not every one of that number is well trained and controlled and it is perhaps not surprising that dogs cause millions of pounds worth of damage every year. From the tragic, but thankfully rare, cases where dog attacks lead to fatalities in human victims to the more mundane attacks on neighbours’ pet rabbits, dogs frequently land their owners in trouble.
While we are relatively familiar with the criminal sanctions for owners of pets that cause damage or personal injury, we hear much less about civil liability. So what activities might end up with a dog owner in Court and when can postmen, refuse collectors, paperboys and milkmen obtain some compensation for the time that the poodle at number 21 decided that lunch had come early?
Who can be sued for damage done?
In most cases the question of the identity of the potential defendant is fairly straightforward and will be obvious from the facts of the case. Indeed, as a general rule s6(3) of the Animals Act 1971 (the 1971 Act) is an excellent starting point. The 1971 Act identifies the defendant as the animal’s keeper. The ‘keeper’ is defined as the person who owns the animal or who has it in their possession.
A potential difficulty arises when there are multiple keepers. For example, if a dog owner hires a dog walker to take their dog out for a walk and the dog subsequently bites the walker while the walker has the dog in their possession, can one keeper (the walker in possession) sue another keeper (the owner)?
This question came before the Court of Appeal in Flack v Hudson & ors (2000), where it was made plain that an animal could have more than one keeper and that one keeper could sue another keeper.
Damage to livestock
Where a dog causes damage by killing or injuring livestock the position is start. The keeper is strictly liable for that damage under s3 of the 1971 Act.
There are only two defences for the keeper of the dog. These are found in s5 of the 1971 Act. Under s5(1) the defendant can escape liability if they can prove that the damage was due wholly to the fault of the person suffering it. It is difficult to imagine a set of facts that would allow a defendant to rely on this section where their dog has attacked livestock. This section will have limited use in practice against this type of claim. Section 5(4) provides a defence if the livestock was killed or injured on land onto which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier. In other words, under the 1971 Act, your dog is allowed to attack sheep that have broken through a fence to get to your grass. Of course, the defence would not assist a dog owner who, knowing that livestock had strayed onto their land, negligently or deliberately let the dog harm the livestock.
Damage other than to livestock
Unfortunately, damage caused by dogs that does not involve livestock is far less straightforward and inevitably it is this category that is most often before the courts. The vast majority of cases involving dogs that reach the civil courts are personal injury claims. As with all personal injury claims, dog claims are fact specific and the cause of action will depend largely on the circumstances of the individual case. However, certain common themes can be identified.
The limits of negligence
Although there can be no doubt that a person who chooses to keep a dog (often a large animal with sharp teeth and powerful jaws) owes a duty of care to people who may come into contact with that animal, dog claims often expose the limitations of negligence. The very nature of dogs (they have their own brains and can do unexpected things) means that the requirement of foreseeability is often difficult to meet. How can an owner of a dog be said to be negligent when their dog, which has never shown any propensity to aggression, suddenly attacks a visitor while at home? Why should a dog owner take steps to prevent an event they had no warning or expectation of? To misquote the advertisement, ‘no blame, no claim’.
The 1971 Act
As a result of the problem identified above very few cases involving dogs will be complete without an allegation made under the 1971 Act. This Act creates a ‘strict liability’ on keepers of animals that have caused harm. The question that the courts have grappled with since the 1971 Act came into force is exactly how strict a ‘strict liability’ is.
The simple answer to that question is that it depends on what type of animal has done the damage. The 1971 Act splits animals into two categories: dangerous and non-dangerous animals. Dangerous animals are defined in s6(2) of the 1971 Act:
A dangerous species is a species:
(a) which is not commonly domesticated in the British Islands; and
(b) 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.
Historically, this section would not have concerned a practitioner dealing with potential liability for damage done by a dog. Dogs are commonly domesticated in the British Islands and hence they would not fall into the dangerous category by virtue of failing the test set out in s6(2)(a). However, as a result of the Dangerous Dogs Act 1991 (the Dogs Act) this provision has potential application in dog cases. As a result of this Act various types of dogs are not commonly domesticated in the British Islands as it is illegal to keep them in the UK (the Republic of Ireland has some breeds that are imposed at local level). Accordingly, the dogs listed in the Dogs Act (including pit bulls and Japanese fighting dogs) may now be dangerous animals. Until the point is tested in court the status of breeds listed in the Dogs Act is uncertain under the 1971 Act.
With the possible exception considered above, dogs are non-dangerous animals and hence 99% of the cases dealt with by the courts will fall squarely into this category.
The reason this distinction is so important in discovering the strictness of the liability is immediately apparent on looking at s2 of the 1971 Act, which sets out the criteria for liability:
(1) 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.
(2) 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; 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 or were at any time known to a person who at that time had charge of the animal so that keeper’s servant.
While s2(1) sets out the clear position that keepers will liable for damage unless the defences in s5 apply, s2(2) creates a tripartite conjunctive test that must be satisfied before liability can attach. In other words, liability is strict for dangerous animals but rather less so for non-dangerous animals.
The wording of s2(2) has been the subject of much judicial criticism as a result of its rather opaque language and any practitioner considering liability under s2(2) will need to consider the criteria set out in the subsection extremely carefully. As a starting point, however, the subsection creates three test that need to be satisfied to establish liability. These can best be summarised as (a) the likelihood test, (b) the characteristic test and (c) the knowledge test.
The characteristic test
The reason for the apparently odd decision to start with the second of the three tests is that s2(2)(b) has traditionally caused the most difficulty. The section splits into two limbs, either of which can be satisfied for the purposes of the characteristic test. To satisfy the first alternative set out in the subsection a dog would have to have an unusual characteristic. Accordingly, if a dog caused damage because it was an unusual dog (for example a very aggressive Labrador) the first limb would be satisfied. This limb rarely causes difficulty as unusual characteristics are by their very nature easy to identify. The second limb is far less straightforward and until relatively recently was the subject of contradictory authorities.
The differing opinions concerned the proper construction of the second limb of s2(2)(b). The example often used in legal submission to deal with the second limb is that of a good-natured bitch that has puppies. This dog would not normally be aggressive and aggression would not be a trait of her breed. However, as a result of having puppies the bitch may become aggressive when guarding them. The characteristic of aggression would not be unusual as bitches are usually protective of their puppies and might well be aggressive in protecting them. Taking this example, defendants argued that the second part of the subsection did not add anything extra to the first limb and where a dog simply did something normal for dogs (guarding its puppies) the subsection could not be satisfied. Claimants on the other hand argued that this was exactly the situation that the second limb of the subsection was designed to deal with and hence the dog was displaying a characteristic normal for dogs in a certain circumstance.
The debate was finally concluded by the House of Lords in the case of Mirvahedy v Henley & anor (2003). By a majority of three to two the House of Lords found that the subsection was to be interpreted to mean that normal characteristics displayed at certain times or in certain circumstances were to be sufficient to fulfil the terms of the subsection. Going back to the example, a normally good-natured bitch causing damage by biting someone coming close to her puppies would fall into s2(2)(b).
Mirvahedy was greeted with dismay by animal insurers because it appeared that the liability imposed by s2(2) had just got a lot stricter. Certainly the decision rather empties subsection (b) of content, a point pretty much conceded by their Lordships in the judgment. Almost all characteristics are exhibited in certain circumstances and hence subsection (b) will almost always be met.
Mirvahedy was, without doubt, a good result for claimants suing the keepers of animals. However, in the five years since the judgment, it has become increasingly clear that it was not the ‘holy grail’ that some claimant lawyers had first hoped it was. Indeed, in apparent reversal of the public policy arguments rehearsed in Mirvahedy, Sedley LJ remarked in the Court of Appeal case of Clark v Bowlt (2006):
Section 2(2) is not intended to render the keepers of domesticated animals
routinely liable for damage which results from characteristics common to the
It is amazing how often it is forgotten that to satisfy the second limb of subsection (b) it is necessary to identify a characteristic and a circumstance and it is not good enough to simply plead that an animal caused an accident.
The likelihood test
In one of the dissenting judgments in Mirvahedy, Scot LJ dealt with s2(2)(a). Although this subsection had been conceded by the defendants in Mirvahedy, he posed the question as to whether damage was necessarily likely in the case. As a result of this and the closure of the subsection (b) arguments, subsection (1) has become the new battleground in dog and animal cases generally.
Like subsection (b), subsection (a) has two limbs. The first limb questions whether the animal, unless restrained, was likely to cause damage. The second limb asks whether the damage was likely to be severe when the animal has done damage. Again either limb will suffice to satisfy the subsection. It is often argued by defendants that this subsection effectively imposes a foreseeability test.
It is argued in dog bit cases, or cases where a dog has knocked someone over, that where a dog has never bitten anybody before or never caused damage before it was inherently unlikely that the dog would cause damage. In effect, without a history of similar damage, it cannot be said that a dog is likely to cause damage or that the damage will be severe. This argument has been run very successfully in a number of reported first-instance cases involving horses.
The problem with this approach for defendants is that while it may have some merit in relation to the first limb of the subsection it is difficult to see how it applies to the second limb. Where a dog has bitten for this first time, an argument can be made to say that the damage was not likely because the dog had never bitten before. However, it is difficult to see how, when a dog has bitten for the first time and damage has been caused, it can be argued that the likely severity of the damage has anything to do with the dog’s history. The likely severity of the damage is related to the facts of the incident and not the past behaviour of the dog.
This point really boils down to an argument as to whether you apply s2(2)(a) to the animal in isolation or to the animal in the circumstances of the case. Should the judge ask whether this dog was likely to cause damage or whether the damage it caused was likely to be severe, or are the more appropriate questions whether the dog was likely to cause damage when it bit the claimant or whether damage from a bite was likely to be severe? This is a question that may have to be resolved by the higher courts as it is causing conflicting results at first instance. Until the Court of Appeal looks at the question it remains the author’s view that the latter approach is the correct one.
The knowledge test
Section 2(2)(c) is the most straightforward of the test to deal with. It is a question of fact as to whether the defendant knew about the characteristics that their animal had. The test is fairly easy where the characteristic replied upon is an unusual characteristic as the defendant either will or will not know about the animal’s esoteric behaviour.
Until recent intervention by the Court of Appeal in the case of Welsh v Stokes & anor (2007) it was less clear as to whether general knowledge about the type of animal generally was sufficient. However, it seems as a result of this judgment that general knowledge will suffice. For example, if a dog that has no antecedent history of biting bites a person for the first time, the keeper will not be able to argue that they had no knowledge that the dog might bite as it had never done so before. As a dog owner they would have aware that all dogs are capable of biting in certain circumstances and this knowledge ought to be sufficient for the purposes of s2(2)(c).
Having waded through s2(2) it comes as something of a shock to find that there is still work to be done. The 1971 Act provides various defences. These are set out in s5 of the 1971 Act (see box below). Section 5(1) provides a defence where the damage is caused wholly by the fault of the Claimant while s5(2) sets out the defence of Volenti. The section 5(2) defence does not apply to employees, so where a proprietor of kennels warns an employee about the vicious nature of a dog and then the employee nevertheless gets bitten, the defence would not assist the proprietor
Section 5(3) deals with dog attacks on trespassers. In short if the dog is not a guard dog and the trespasser is bitten, the keeper is not liable. Furthermore, even if the dog is a guard dog and it is reasonable to have a guard dog on the premises, the keeper would not be liable.
Animals Act 1971
- Exceptions from liability under sections 2 to 4.
(1) A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.
(2) A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof.
(3) A person is not liable under section 2 of this Act 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 it there for that purpose was not unreasonable.
(4) A person is not liable under section 3 of this Act if the livestock was killed or injured on land on to which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier.
(5) A person is not liable under section 4 of this Act where the livestock strayed from a highway and its presence there was a lawful use of the highway.
(6) In determining whether any liability for damage under section 4 of this Act is excluded by subsection (1) of this section the damage shall not be treated as due to the fault of the person suffering it by reason only that he can have prevented it by fencing; but a person is not liable under that section where it is proved that the straying of the livestock on to the land would not have occurred but for a breach by any other person, being a person having an interest in the land, of a duty to fence.
Guard dogs and occupiers’ liability
Occupiers’ liability has limited application in relation to dog cased. The act of keeping a dog give rise to an ‘activity duty’ rather than an ‘occupancy duty’ and hence damage done by dogs to visitors will rarely result in a case being brought under the Occupiers’ Liability Act 1957. As for trespassers and the Occupiers’ Liability Act 1984 (the 1984 Act) the cases prior to this Act drew a distinction between ‘deterrent dangers’ and ‘retributive dangers’. This distinction was preserved in the case of Cummings v Granger(1997) and the occupier will only be liable for retributive dangers. In other words, if a burglar happens to come across the occupier’s dog and is savaged, liability will not follow. If on the other hand the occupier sees a trespasser on is land and sets the dogs on them, liability may well attach under the 1984 Act.
Although keeping dogs as a deterrent against trespasser should not lead to liability under the 1984 Act, consideration does need to be given to the Guard Dog Act 1975 if the premises is not agricultural or a dwelling. This Act prohibits the use of a guard dog unless it is under the control of a handler or chained up.
In the modern world, the old adage that every dog is entitled to one bite no longer applies. Dog owners would be well advised to have comprehensive insurance in place to protect them from the indiscretions of their pest. Nevertheless, it is clear that unless the case involves a dog that has previously offended claimants do not have it all their own way. As a result of some rather awkward drafting, the 1971 Act continues to ensure that a definitive answer as to when a dog owner is liable for the actions of their animal remains as elusive as ever.
Speak to a solicitor about making a claim.