Christopher Richard Smith (plaintiff) Appellant) v (1) Philip Ainger (2) Wilfred Douglas Ainger

This is an appeal by Mr. Christopher Richard Smith against the order of Mr. Justice Ian Kennedy dated 28th July 1988 dismissing his claim for damages against the respondents, Mr. Philip John Ainger and Mr. Wilfred Douglas Ainger.

The appeal raises questions, inter alia, as to the proper construction of section 2(2) of the Animals Act 1971 (the Act).

The facts

The facts, as agreed or as found by the judge, can be shortly stated.

Mr. Smith was born on 9th June 1950. On 18th July 1982 Mr. Smith, who was accompanied by his wife, was walking his dog along High Street, Old Woking. The dog, which was a cross-breed terrier, was on a lead. Mr. and Mrs. Smith were walking on the lefthand pavement. Mr. Smith saw Mr. Wilfred Ainger approaching with his wife. They were on the same pavement and were coming from the opposite direction. They had with them a large dog called Sam, which the judge found belonged to Mr. Philip Ainger, the first respondent and the son of Mr. Wilfred Ainger.

I can turn to the judgment to describe what then took place. The judge accepted the version of events given by Mr. Smith and it is therefore possible to omit any detailed reference to matters which were in dispute at the trial. The judge said this:

"The plaintiff and his wife had at some stage to cross the road, which at that time was not busy. So as to avoid the two dogs meeting the plaintiff walked into the middle of the road, almost to the white line, and would have gone on to cross over the road at a shallow angle had it not been for what then ensued. The plaintiff's case is that just before the two parties crossed Sam flew at his dog. Sam was a big dog, described as a mongrel on the RSPCA certificate, and by the police as a large dark grey long haired Alsatian cross. There was some discussion in the evidence as to exactly what Sam's breeding was, but the description of him given by the police will suffice for my purposes. I am satisfied that he was a strong and heavy dog. The plaintiff says that as Sam lunged at the other dog he pulled Mr. Ainger so that the latter tripped or lost his balance near to the edge of the pavement and fell on the road. Mr. Ainger did not lose hold of the lead but Sam was able nevertheless to reach the plaintiff and his dog. Sam made to attack the plaintiff's dog, and in doing so dashed against the plaintiff's legs, knocking him to the ground, and so causing the fracture to which I have referred. The attack was an attack by dog on dog, to which the plaintiff's accident was incidental. The two dogs were separated, and Mr. and Mrs. Ainger walked off. When the plaintiff tried to stand he found that he could not."

A little later in his judgment the judge continued (3F):

"I find that Sam went for the Smith's dog as the two couples were about to cross, and did so without any provocation from the latter, or at least without any provocation that was apparent to a human."

The law

The case for Mr. Smith is based primarily on the provisions of section 2 of the Act, though in the alternative it is claimed that Mr. Wilfred Ainger (the father) was negligent in allowing Sam, whose mischievous propensities he knew, to escape from his control.

I turn at once to the Act.

Section 1(1) provides (inter alia) that the provisions of section 2 to 5 of the Act are to replace "the rules of the common law imposing a strict liability in tort for damage done by an animal on the ground that the animal is regarded as ferae naturae or that its vicious or mischievous propensities are known or presumed to be known."

Section 5 is concerned with exceptions from liability under the earlier sections of the Act, but it has no relevance in the present case. Nor is it necessary to consider section 2(1) of the Act which is concerned with animals which belong to a dangerous species. The provisions which are relevant in this case are contained in section 2(2) which is in these terms:

"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 as that keeper's servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen."

The problems to which the interpretation of section 2(2) of the Act may give rise have been discussed in at least two cases in the Court of Appeal— Cumminqs v. Granger [1977] Q.B. 397 and more recently, ( Curtis v. Betts unreported, 23rd November 1989). Having considered these two cases and section 2 itself, one can go some way towards discovering a solution to these problems and the correct approach to the subsection. I would venture to put the matter as follows:

(1) In some cases it may be necessary to determine whether the animal concerned belongs to a dangerous species (which can include a sub-species or a variety: see section 11). A dangerous species is defined in section 6(2) of the Act as 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. If the animal does belong to a dangerous species the case will be covered by section 2(1) rather than by section 2(2). It is to be anticipated, however, that there will seldom be any doubt whether a particular animal does or does not belong to a dangerous species as so defined.

(2) The first step under section 2(2)is to determine whether "damage" has been caused by the animal. Damage is defined in section 11 of the Act as including "the death of, or injury to, any person (including any disease and any impairment of physical or mental condition)". It will also be necessary to determine the type or kind of damage.

(3) The next step, if there is an issue (as there was in the present case) as to whether the defendant is a "keeper" is to determine this issue. By section 6(3) of the Act it is provided, inter alia, that a person is a keeper of an animal if "he owns the animal or has it in his possession."

(4) One then turns to the conditions set out in paragraphs (a), (b) and (c) which have to be satisfied before the liability of a keeper is established. This liability is subject to certain statutory exceptions contained in section 5, but, as I have already noted, I do not propose to examine these exceptions as they have no application in the present case.

(5) It is important that the court should consider paragraphs (a), (b) and (c) of section 2(2) in turn and that the trial judge should make the necessary findings of fact so that it is clear on what basis, if any, liability is established.

(6) It will be seen that paragraph (a) can be satisfied in two quite separate ways:

(i) if the damage is of a kind which the animal, unless restrained, was likely to cause; or

(ii) if the damage is of a kind which, if caused by the animal, was likely to be severe.

The words "was likely" give rise to difficulty. In many contexts "likely" means "probable" or "more probable than not". But in other contexts it may have a wider meaning so that a likely event includes an event "such as might happen" or "such as might well happen" or "where there is a material risk that it will happen" as well as events which are "more probable than not." In the present context I consider that the wider meaning is to be preferred. It seems to me that Parliament cannot have intended that a keeper of a dog with a known propensity to bite strangers could escape liability by establishing that only 40 per cent of such persons had been bitten in the past. Moreover such a construction would represent a radical departure from the old law.

(7) It also seems clear that the likelihood of damage or of it being severe has to be considered in the circumstances of the particular case. I shall turn to this point later when examining paragraph (b).

(8) It has been suggested that the second limb of paragraph (a) will only be satisfied in rare cases: see North, The Modern Law of Animals, page 56. But this suggestion has been rejected by the Court of Appeal. Thus in Cummings v. Granger (supra) Lord Denning M.R. (with whose judgment Lord Justice Bridge agreed) adopted a simple approach to the second limb in a case involving a bite by an alsatian guard dog. He regarded the requirements of section 2(2)(a) as being satisfied because the animal "was a dog of the alsatian...