Curtis v Betts
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE NOURSE,LORD JUSTICE STUART-SMITH |
| Judgment Date | 23 November 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1123-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/1128 |
| Date | 23 November 1989 |
and
[1989] EWCA Civ J1123-1
Lord Justice Slade
Lord Justice Nourse
and
Lord Justice Stuart-Smith
89/1128
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
(HIS HONOUR JUDGE HEALD)
Royal Courts of Justice
MR. S. GASH (instructed by Messrs. Hextall Erskine & Co., Solicitors, London, SW1V 1PW agents for Messrs. Hodgson Fox & Co., Solicitors, Nottingham NG1 5GN) appeared on behalf of the Defendants (Appellants).
MR. G.M. JARAND (instructed by Messrs. Hunt Dickens, Solicitors, Nottingham NG1 3DS) appeared on behalf of the Plaintiff (Respondent).
This is an appeal by Mr. Rolfe Betts and his mother, Mrs Frances Ann Betts ("Mrs Betts"), the defendants in an action, from a judgment of His Honour Judge Heald given on 8th December 1988 in the Nottingham County Court. By his judgment, he made an award of £2,368.90 damages against the defendants in favour of the plaintiff in respect of personal injuries and consequential loss sustained by reason of an attack upon him on 6th October 1983 by the defendants' dog. The plaintiff, Lee Curtis, is an infant who sues by his father and next friend. He was aged 10 at the time of the incident. The dog which bit him was a bull mastiff named "Max", of which the two defendants were the keepers. At the time of the incident Max was 15 months old. It was agreed at the trial that when he was full grown he weighed eleven or twelve stone, and doubtless at 15 months was approaching that weight.
The husband of Mrs Betts was the caretaker of the Berridge Road School at Hyson Green in Nottingham. She and her husband, and their son Mr. Rolfe Betts, lived at the school house, which is an integral part of the Berridge Road school buildings and fronts on to Berridge Road. Mr Betts senior had been the school caretaker for about ten years. The plaintiff lived with his parents in Berridge Road, opposite the school house. His mother was employed at the school as a part-time cleaner. All the parties were well known to each other, and indeed were friends. The judge, in giving judgment, paid tribute to the parties' common sense and understanding, which had reduced to a minimum the ill feelings which events such as these may engender.
The defendants had for some thirty years always owned two dogs, usually of the larger breeds. In October 1983 they owned in addition to Max a Boxer bitch known as "Nellie", who was also young. These dogs were kept as family pets, although doubtless from their sheer size they acted as deterrents to anyone who might contemplate breaking into the school grounds. It was the practice of Mr. Rolfe Betts and his brother Rhys to take the dogs for a substantial walk and exercise in the neighbouring Wollaton Park three times a week. For this purpose, the dogs had to be got into the rear part of the family Land Rover and driven to the park. Otherwise, for the purpose of exercise, the dogs were left to roam loose in the school yard, after the children had left the premises in the evening. The plaintiff had known Max since he came to the defendants as a puppy, and was particularly friendly with him.
As to the locality, the school playground fronted on to Berridge Road and Brushfield Street, which ran at right angles to Berridge Road. There were gates leading from the playground into Brushfield Street and into Berridge Road.
On the day in question, Lee, the plaintiff, was out on his bicycle with two friends. They had come along Brushfield Street, and turned into Berridge Road, stopping outside Lee's house. Lee saw that Mr. Rolfe Betts and his brother were loading Max and Nellie into the Land Rover, which was standing in Berridge Road more or less alongside the gate leading from the playground. He went over to see Max, and called out his name. He got close to the rear of the Land Rover by walking his bicycle across the road, whilst still sitting astride the saddle. Suddenly, for no reason which any witness could explain, Max, who was on a lead being held by Mr. Rolfe Betts, leapt at Lee and bit him on the right-hand side of his face in three places. Max was not yet in the Land Rover. Mr. Rolfe Betts said that Lee was coming towards his right-hand side, walking his bicycle with one foot on the pedal and one on the road; all of a sudden Lee and Max clashed; Max bit him on his chin and Lee ran off.
The judge found that Lee was in no way to blame for the incident, and that finding is not challenged on this appeal, in which the only issue is that of the defendants' liability.
The plaintiff's claim was pleaded on three alternative bases, namely (1) that Max was an animal belonging to a dangerous species; (2) that Mr. Rolfe Betts was guilty of negligence at common law, and (3) that both defendants were strictly liable under section 2 (2) of the Animals Act 1971. The first contention was not pursued at the trial. The second disappeared on the judge's findings that the dog had not escaped from the back of the defendants' Land Rover and run across the road before attacking Lee, and that there was no failure properly to control the dog. As to the third contention, on which the plaintiff succeeded, s.2 of the Animals Act 1971 ("the 1971 Act") reads as follows:
"(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 otherwide 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 its 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."
Dogs do not belong to a "dangerous species" within the definition of that phrase contained in s.6 (2) of the 1971 Act. The keeper of an animal not belonging to a dangerous species will be liable for damage caused by it, provided that the plaintiff can show that each of the three requirements (which I will call respectively "requirements (a), (b) and (c)") is satisfied.
Lord Denning M.R. in Cummings v Granger (1977) Q.B. 397 at p. 404, described s.2 (2) as "very cumbrously worded", and giving rise to "several difficulties". I agree. Particularly in view of the somewhat tortuous wording of the subsection, I think it desirable to consider each of the three requirements separately and in turn.
The kind of damage in the present case was personal injury. The judge, rightly, did not find that this damage was "of a kind which [Max] unless restrained was likely to cause". Indeed, he made it plain (at p. 4 A) that in general Max was a docile and lazy dog. However, he found (at p. 7 G) that Max's action "in jumping up and biting a child on the side of the face was likely to cause severe damage". By this route he found that the personal injury caused to Lee was of a kind "which, if caused by the animal, was likely to be severe", so that the second head of requirement (a) was satisfied.
Mr. Gash, on behalf of the defendants, submitted that the judge's approach to requirement (a) was erroneous. In this context, he referred us to and relied on a passage in North, The Modern Law of Animals where it is said (at p. 56):
"This second type of damage envisaged by s.2 (2) (a) is one that must prove to be rare in practice. For there to be liability on this basis, an animal must have caused damage in circumstances where it was unlikely that an animal of that species would cause the kind of damage in question but the animal had such abnormal characteristics that it was likely that, if it did cause damage, the damage would be severe."
He pointed out that there was no evidence or finding that Max had abnormal characteristics (that is to say, abnormal in the case of bull mastiffs as a breed) such as rendered it likely that, if he did damage, the damage would be severe.
I agree with the latter point, but, with respect to Professor North, am unable to agree with the approach to the construction of requirement (a) suggested by him for two reasons. First, while I accept that requirements (b) and (c) have to be read in conjunction with the preceding requirement (a), I see no necessity or justification for reading words into requirement (a) itself through a process of implication effected by reference to the succeeding requirements. The broad purpose of requirement (a), as I read it, is to subject the keeper of a non-dangerous animal to liability for the damage caused by it in any circumstances where the damage is of a kind which the particular animal in question, unless restrained, was likely to cause or which, if caused by that animal, was likely to be severe, provided that the plaintiff can also satisfy the additional requirements (b) and (c). While conceivably the reference to the likelihood of severity of damage may give rise to questions of degree on particular facts, I...
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