Dogs have long been companions and workers, and many families in the UK love having dogs as pets. People value their loyalty, intelligence, and emotional bond. I never knew how much satisfaction it brings to have a dog until I had one myself. However, dogs can sometimes cause harm or damage; it is a sad reality we must all accept, even if more often than not (or the majority at large) are very safe. The law aims to balance loving dogs with keeping the public safe and protecting property.
The Animal Act 1971 is the usual mechanism relied on by those who have sustained injury as a result of a dog-related incident. This article considers this Act and the relevant elements with respect to dogs.
Who is the keeper of the dog?
The definition of a keeper can be found in the 1971 Act, s6(3) and s6(4) say that a keeper can be:-
- The person who owns the dog.
- The person who possesses the dog.
- The ‘head of the household’ is the person who owns or has possession of the dog if the person is under 16 years of age.
- The previous person who owned or possessed the dog until someone becomes the keeper within the meaning of the act.
A person is not a keeper if they take and keep the dog into their possession to prevent it from causing damage or until it can be returned to its owner.
Can a dog fall within the definition of a dangerous species?
Strict liability for dangerous species, as per s1 and s2(1) of the 1971 Act, means a keeper is automatically liable for damage caused by the animal. The Claimant only needs to prove the keeper and injury, with no need for negligence or fault. Liability applies even if the keeper was cautious and unaware of the danger.
The definition of a dangerous species is found in s6(2) of the 1971 Act:-
(2)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.
A dog is a species that is commonly domesticated in the British Islands and therefore cannot fall within the definition of a dangerous species.
What would need to be proven to establish liability under s2(2) in respect of a dog?
There are three limbs to s2(2) that need to be met for injury that has been caused by an animal that does not belong to a dangerous species.
- The damage is of a kind which the dog, unless restrained, would likely to cause or which, if caused by the dog, it was likely to be severe
- The likelihood of the damage or of its being severe was due to characteristics of the dog 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
- Those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the dog (falling within the definition of ‘keeper’).
A Claimant must meet all three of these limbs to establish liability. The 1971 Act is well known to be difficult and contradictory and therefore is not a simple question.
Likelihood of damage
There are two ways to establish limb one of s2(2)(a), either was it the kind of damage that, if the dog was unrestrained, was likely to be caused or if it caused damage, the damage was likely to be severe.
It is an ‘either/or’ approach, and the Claimant needs to establish only one. It is likely that dogs with a history of attacking other dogs would, if unrestrained, cause injury to people who may intervene. The possibility of the damage a dog could cause (and damage, as per s11 of the 1971 Act, includes death of/or injury to any person) was likely to be severe.
S2(2)(a) is establishing the foreseeability element of the dog. In other animals, the test may not be so easily established, such as horses in horse-riding accidents (leading to fact-specific analysis by the Court as per (Turnbull v Warrener [2012] EWCA Civ 412).
Due to the particular characteristics
The mere fact that a dog could cause severe injuries or could have caused injury if unrestrained is not, of itself, sufficient. There needs to be something about the dog’s characteristics that is either not seen in other dogs or not at all, except at a particular time or in particular circumstances. As domesticated animals are not usually known to attack without any sort of provocation, that would be a particular characteristic not normally found
The example given in Mirvahedy v Henley [2003] UKHL 16 really helps to explain this point.
Para 46
Some forms of accidental damage are instances where this requirement could operate. Take a large and heavy domestic animal such as a mature cow. There is a real risk that if a cow happens to stumble and fall onto someone, any damage suffered will be severe. This would satisfy requirement (a). But a cow’s dangerousness in this regard may not fall within requirement (b). This dangerousness is due to a characteristic normally found in all cows at all times. The dangerousness stems from their sheer size and weight. It is not due to a characteristic not normally found in cows ‘except at particular times or in particular circumstances‘.
So, if a dog that tended to attack other dogs rushed towards another dog to carry out such an attack and knocked the claimant over, causing injuries, this could be said to be caused by a characteristic not normally seen in dogs. However, that logic may not apply to dog breeds that have that characteristic. Generally, just because a trait or characteristic is rare does not mean it is abnormal. For it to be a normal characteristic, it ought occur with some frequency or predictability (Welsh v Stokes [2007] EWCA Civ 796).
In Gloster v Chief Constable of Greater Manchester Police [2000] All ER (D) 389, a police constable was bitten by a trained German Shepherd police dog during a pursuit when the handler slipped and the dog broke free. The central issue was whether the dog’s police training amounted to a “characteristic not normally found” in German Shepherds under s 2(2)(b), thereby triggering strict liability. The Court of Appeal dismissed the appeal, deciding that the dog was acting based on training, not abnormal behaviour, and there was no evidence that the damage was due to an abnormal characteristic. The requirements of s 2(2) were not satisfied.
Then we come to the point of particular times or in particular circumstances.
In the case of Curtis v Betts & Anor [1990] 1 ALL ER 769, the Defendants owned a large, usually calm Alsatian dog, which was territorial and guarded its home. The Claimant was walking with his mother past the house. The dog, which was behind a gate in the front yard, got out and attacked the boy on the street, causing serious injuries to his face. The evidence suggested that the dog was not generous viicious, but it did bark and growl at passers-by and was protctive of its terriority
The Defendants appealed on the basis of whether a dog exhibiting territorial aggression would qualify as a characteristic under s2(2)(b). The Court of Appeal dismissed the appeal, finding that the territorial aggression characteristic could be common in dogs generally, but manifested in particular circumstances would satisfy the second limb of s2(2)(b). The limb of s2(2)(c) would be the next part of the test.
We know our dogs can, as they get older for example, start to act differently due to general wear and tear like we do. As we get affected by arthritis and other symptoms, so do our dogs. Therefore, dogs may start to respond more aggressively in particular circumstances when they never done so before.
The characteristics were known to the keeper
The final limb of s2(2) is intended to ensure that the Court is satisfied that the characteristics are known to the keeper. This can sometimes be a very strong defence for the keeper, as the Claimant bears the burden of discharging it. In practice, this can be evidence in the form of veterinary records (with reports that the dog had shown the aforementioned characteristic) or a police report following an incident. A Claimant might seek to contact nearby neighbours to see if they are able to shine any light on the characteristic being known to the keeper.
It is important to note that the type of knowledge is based on which of the two limbs is utilised in s2(2)(b). Returning to Curtis, the Court of Appeal was satisfied that the keeper knew the dog was territorial and defensive, barking and growling at passers-by and guarding the house. It was not necessary to predict the exact attack or fully understand the risk, the Claimant only had to show that the keeper knew the dog’s tendencies.
Statutory defences
As s2(2) is a strict liability mechanism, meaning once all three limbs are satisfied, the liability will only be defeated if one of the few statutory defences are utillised. They are:-
- Proving that the damage was wholly the fault of the Claimant (s5(1) of the 1971 Act).
- Voluntarily accepting the risk of damage (s5(2) of the 1971 Act)
- Trespass (if the dog is not kept there for the protection of persons or property or if so, keeping it there for that purpose was not unreasonable) of property (s5(3) of the 1971 Act)
Whiltst I do not intend to go into any detail on the above, it would sensible to point out that if the fault of the Claimant is only partial, then liability is not defeated because s10 and s11 allow for the Law Reform (Contributory Negligence) Act 1945 to apply.
The strongest case would be to demonstrate that the Claimant has failed to satisfy any or all limbs of the s2(2) test.
Conclusing remarks
This article only touches upon the 1971 Act in some very vague detail. The s2(2) is contradictory and complicated and there is significant wiggle room for interpretation thanks to the various Appellant decisions. Whilst broadly speaking the test can be relatively easy to explain, there is always grounds to consider whether or not the claimant has or can sufficiently established the necessarily elements for a strict liability claim.
Whilst dogs can easily satisfy s2(2)(a), it can be much more difficult to establish the remainder and it is of course on the Claimant to discharge the evidential burden.
I leave you with a very old photo (clearly shown by the fact that I have hair) with my dog when he was a little puppy!
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
