Cummings v Granger
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORMROD,LORD JUSTICE BRIDGE |
| Judgment Date | 26 May 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0526-4 |
| Date | 26 May 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0526-4
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Queen's Bench Division (Mr. Justice O'Connor)
The Master of the Rolls
Lord Justice Ormrod and
Lord Justice Bridge
MR. N. IRVINE Q. C. and MR. E. GLASGOW (instructed by Messrs. Lewis. Silkin & Partners, Solicitors, London) appeared on behalf of the Plaintiff (Respondent).
MR. J. B. MORTIMER Q. C. and MR. R. BRYAN (instructed by Messrs. Alton Batchelor, Solicitors, London) appeared on behalf of the Defendant (Appellant).
This is the case of the barmaid who was badly bitten by a big dog. It was a guard dog, an Alsatian, about two years old. It kept guard over a yard next to the Maypole public house in East London. The yard was used for storing and selling scrap motor cars and scrap metal, and so forth. It was enclosed by high walls and a high wire fence. During the daytime customers came to the yard. To protect them, the owner kept the dog secure in an old van from which it could not escape. During the night-time, and also during week-ends, there were no customers coming to the yard. The big gates were shut. At those times, to scare intruders, the owner let the dog run loose about the yard: but it could not get out. The walls and fences were too high.
The big gates had a warning on them in huge letters "Beware of the Dog". Alongside the big gates there was a small wicket gate. It was padlocked at night, but the owner put the key in a secret place near the gate so that he (or anyone whom he authorised) could get in. The owner said that the dog took particular objection to coloured people. If people came round near to his cage in the daytime, the dog would bark and run round in circles. At night if the gate was rattled, the dog would come to the gate and bark.
Coming now to the particular night, it was on the 4th November, 1971. Closing time in the public house was at half past eleven. The customers were leaving. The barmaid and her friend Mr. Hobson had just left too. They were going to her car. It was parked in the street outside the scrapyard. Her friend Mr. Hobson had his own car in the scrapyard. He wanted to get some tools out of it. He knew where to find the key of the yard. He got the key. He unlocked the padlock and went in by the wicket gate. The barmaid says that she stayed outside on the pavement, but the Judge did not believe her. The Judgefound that she followed her companion in. She got nearly to the middle of the yard when the dog attacked her.
A neighbour in the house opposite saw what was happening. He had just got into bed when he heard the dog barking. He jumped out of bed and looked. He saw the dog in the yard attacking the girl. She was in the middle of the yard. Her man friend was trying to get the dog away by beating it with a piece of wood or iron. He saw him helping the girl to the car to drive her to hospital.
Her cheek was torn open and she was badly injured. She has had plastic surgery, but she has a very severe scar still remaining on her cheek. She now claims damages against the owner of the dog.
After the accident her handbag and shoe were found in the middle of the yard. She had to explain how this came to be. She did it this way. She was standing outside on the pavement waiting for her friend to come out. Then she heard a noise. She turned round and there was the dog. She was terrified of it, but she says that she tried to make friends with it. She patted it on the head. This seemed to infuriate the dog. It went at her and dragged her from the pavement through the gate and then back into the yard. That is why she was seen to be in the yard and that is why her handbag and shoe were there in the middle of the yard.
The Judge did not believe that she stayed outside. He found that she had gone inside. She had followed her companion without any authority at all. She was a trespasser in the yard. That must be accepted. Mr. Irvine took us through the evidence. He asked us to find that her story was correct, but I am quite clear that we cannot interfere with the Judge's finding. She was a trespasser.
Nevertheless the Judge held that the lady had a goodcause of action against the keeper of the dog under the Animals Act, 1971. He held that that Act imposed a strict liability on the owner of this dog: but it was partly the lady's own fault. He said that they were both equally to blame. He found the total damages to be £2,892.95 and awarded her one-half, that is, £1,446.46.
The case is of some interest because it is the first we have had under the new Act about a guard dog. This Alsatian seems to have been a typical guard dog. A veterinary surgeon gave evidence as to the behaviour of this Alsation. Was it exceptionally ferocious? He answered: "No, I think this is perfectly normal behaviour for a good number of Alsations or, indeed, many other breeds of dogs". The Judge asked: "What – to leap up and seize somebody by the face?". The veterinary surgeon answered: "In these circumstances, yes. The Alsation is a dog which is very insecure, very nervous type of animal. This dog has had no formal discipline or training at all. The plaintiff has already said that she was frightered of the dog. The dog would be perfectly well aware of this, instantly. We know perfectly well that even in our profession if a dog comes in and we have a smell of fear about us that from then on we cannot handle it. Equally, we can master a lot of dogs that are already terrorising their owners. If a dog feels threatened, and this dog has a job to do, which is to guard its territory, if it feels threatened, it wants to defend that territory; if it then smells fear, this is the next reaction and it is a very very common one". A little later he was asked whether it was not unusual for an ordinary house Alsation to seize somebody's face because she bends down to pat it. The veterinary surgeon answered: "No, many house dogs will not accept strangers, and this sort of behaviour where you bend down straight out of the blue, you are likely to get attacked by many dogs - Alsationsand many other sorts of dogs". So this Alsation was just a typical guard dog.
This brings me to the law. At common law when a dog bit a man, the owner or keeper of the dog was strictly liable if he knew that it had a propensity to bite or attack human beings. Apart from this, however, he was liable for negligence if the circumstances were such as to impose upon him a duty of care towards the injured plaintiff, which he had failed to observe: see Fardon v. Harcourt-Rivington, 1948 Times Law Reports at page 217 by Lord Atkin, ( Draper v. Hodder 1972) 2 Queen's Bench 556. Now so far as strict liability is concerned, the common law has been replaced by the Animals Act, 1971. But the common law as to negligence remains. If the barmaid's version - that she was on the pavement - had been accepted, we might have had to consider the issue of negligence. But she was not on the pavement. She was a trespasser: and the only duty owed to her was the duty considered by the House of Lords in Herrington v. British Railways Board 1972 Appeal Cases 877 and by the Privy Council in Southern Portland Cement Limited. v. Cooper, 1974 Appeal Cases 623. Those were cases of children trespassing and their presence was to be expected. But this was the case of a grownup person. The owner had no reason to expect that anyone would enter unlawfully, especially as he had a large warning notice and a guard dog. It seems to me that he was not under any duty of care towards her. Nor indeed was it suggested in argument. The only case put before the Judge or before us was that the keeper was strictly liable under the Animals Act, 1971.
The statutory liability for a tame animal, like a dog, is defined in Section 2(2) of the Act, subject to exceptions contained in Section 2(4). Now it seems to me that this is a case where the keeper of the dog is strictly liable unless hecan bring himself within one of the exceptions. I say this because the three requirements for strict liability are satisfied. The Section is very cumbrously worded and will give rise to several difficulties in future. But in this case the Judge held that the three requirements are satisfied and I agree with him for these reasons:- Section 2(2)(a): This animal was a dog of the Alsation breed. If it did bite anyone, the damage was "likely to be severe". Section 2(2)(b): This animal was a guard dog kept so as to scare intruders and frighten them off. On the owner's own evidence, it used to bark and run round in circles, especially when coloured people approached. Those characteristics - barking and running around to guard its territory - are not normally found in Alsation dogs except in the circumstances where used as guard dogs. Those circumstances are "particular circumstances" within Section 2(2) (b). It was "due" to those circumstances that the damage was likely to be severe if an untruder did enter on its territory. Section 2(2)(c): Those characteristics were known to the keeper. It follows that the keeper of the dog is strictly liable unless he can bring himself within one of the exceptions in Section 5. Obviously Section 5(2) does not avail. The bite was not wholly due to the fault of the lady, but only partly so. Section 5(3) may, however, avail the keeper. It shows that if someone trespasses on property and is bitten or injured by a guard dog, the keeper of the guard dog is exempt from liability if it is proved "that keeping it there for that purpose was not unreasonable".
The Judge held that the owner of this dog was unreasonable in keeping it in this yard. He said: "It seems to me that it was unreasonable to keep an untrained dog, known to be ferocious and known to be likely to attack at least...
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