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Whippey v Jones, Court of Appeal, 8 April 2009

14 May 2009
The issues

Animals Act 1971 – Claimant knocked over by Great Dane.

The facts

In the late afternoon of 23rd June 2004, Andrew Jones was running along a footpath at Riverside Walk by the side of the River Aire at Kirstall in Leeds. He was visiting Leeds on business and had decided to do some running training. As he was running, a Great Dane called Hector appeared from behind a bush. He knocked into Mr Jones’ right shoulder causing him to lose his balance, jump over a low metal link chain on the river side of the footpath and fall or slip down the sloping bank to the area by the riverside. In doing so he broke his ankle. Mr Jones claimed damages from Mr Whippey, the owner of Hector. On the day, Mr Whippey had taken Hector and another dog for a walk in the park alongside the footpath. He had let Hector off the leash. He had done so because he was satisfied that no-one was about in the park area. Mr Whippey knew that Hector had a tendency to run up to people and bark in such a way as could frighten them. Having allowed both dogs off the leash, they had disappeared from Mr Whippey’s view for a period of time. The Trial Judge found that the Defendant was not liable to the Claimant under the Animals Act, taking the view that the Claimant had failed to prove that the damage he had suffered was a type which Hector was likely to cause. However, he did find that the Defendant was liable in negligence on the basis that a responsible carer for a dog should have ensured and taken reasonable care to ensure that their dog did not put people in a position where they might reasonably foreseeably suffer some sort of injury.

The Defendant appealed.

The decision

The Judge had found that Hector, at the time of the accident, was fully grown, weighing about 12 stone. He found that Hector was of a breed that could be intimidated to people despite his gentle nature. Hector had been badly treated as a puppy and was wary of strangers which, where in this, manifested itself in a tendency to approach them to investigate and occasionally bark. He was however a gentle creature and the Judge moreover found that Great Danes in general were not aggressive. The Judge found that Hector had no tendency to jump up at people.

Mr Whippey clearly owed a duty of care to Mr Jones with regard to the way in which he handled Hector in the public park in Leeds that afternoon. It was also clear from the Judge’s findings that the encounter between Hector and Mr Jones directly caused the injuries that Mr Jones suffered.

The only issue was whether or not the Judge was correct to conclude that Mr Whippey’s conduct in handling Hector that day fell below the standard to be expected of a reasonable handler of Hector in the circumstances of that afternoon. The Judge had set out the standard of care in the following words:-

“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.”

This was not the correct test. It was clear that from Donoghue v Stevenson onwards, the obligation was to take reasonable care to avoid acts or omissions which you might reasonably foresee would be likely to injure your neighbour – emphasising the word ‘likely’. In Bolton v Stone, the remote possibility of injury was not enough. There had to be a sufficient probability to lead a reasonable man to anticipate the injury. The Judge’s test did not accurately reflect those classic statements of the law. Had the Judge posed the correct question, he could only have concluded on the facts found and the unchallenged evidence of Mr Whippey, that a reasonable man in Mr Whippey’s position would not anticipate that physical injury to another adult park user such as Mr Jones would be caused by Hector physically contacting him. The most that Hector had done before was to bark at people some 5 to 10 feet away. A way of checking whether the Judge had applied the right test was by reference to the Judge’s findings when he dismissed Mr Jones’ claim under Section 2(2) of the Animals Act 1971. The Judge had found that Mr Jones had failed to prove any of the three elements set out in Section 2(2) of that Act. He had found that the damage which the Claimant had suffered was not a type of injury that the dog was likely to cause. This contrasted with the Judge’s conclusion that the injury Mr Jones suffered was a possibility. It made clear that the basis on which the Judge decided Mr Whippey had been negligent had not been based on the correct legal test.

Appeal allowed.

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