Draper v Hodder
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0203-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 1972 |
[1972] EWCA Civ J0203-4
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Park - Winchester)
Lord Justice Davies
Lord Justice Edmund Davies and
Lord Justice Roskill
Mr. DERMOND O'BRIEN (instructed by Messrs. Wilkinson, Kimbers & Staddon, Agents for Messrs. Humphries, Kirk & Miller, Wareham, Dorset) appeared on behalf of the Appellant (Defendant).
Mr. MARTIN TUCKER (instructed by Messrs. Farnfield & Nicholls, Gillingham, Dorset) appeared on behalf of the Respondents (Plaintiffs).
Before writing this judgment, I have had the Advantage of seeing in draft the judgments which are about to be Delivered by my Lords and I would say at once that so fully have they covered all the aspects of the law and the facts of this by no means easy case that they have really left very little for me to say. But I feel nevertheless that, quite apart from outlining the general story of the case. I should, though at no great length, express a view on two aspects of the case, one of law and one of fact.
The appeal is by the defendant from a judgment of Mr. Justice Park giving at the Winchester Assizes on the 6th April, 1971, by Which he awarded to the infant plaintiff, whom I shall call Gary, £4000 damages for personal injuries and to the adult plaintiff, Gary's father, £380 special damages. No question arises in the Appeal as to the amount of the damages. It concerns liability only.
The action arose from a horrifying occurrence which took place on the 5th March, 1968. When Gary, then just over 3 years of age, was savaged by a number of Jack Russell terriers which were the plaintiffs. This was at Hyde near Bere Regis in a somewhat remote Part of Dorset. The locus in quo is shown in a sketch plan prepared by the defendant and is perhaps even better to be seen in certain photographs which were in evidence. Mr. and Mrs. Draper with their children lived in a first floor flat at Hyde house and the defendant at a house called Forest Lodge, which had apparently been converted from what had formerly had gone to live there in 1952 an his Retirement from his occupation as an agricultural engineer. Since that date he had been engaged there in breeding dogs and particularly Jack Russell terriers; and it is to be noted that he had been interested in such breeding from his childhood, from the age of about eight. At the date of the events with which this case isConcerned he was about sixty years of age and he had on his premises some thirty dogs and puppies.
Turning now to the photographs, one seen in photograph No.1 the entrance or gateway to the back yard of Hyde House. There was no gate. Photograph No.2 is taken looking across the lane which separates Hyde House from Forest Lodge and shows the entrance from the lane to Forest Lodge. That was also ungated. The distance between the two Entrances in 15 yards, and it is obvious, therefore, that, there being no gates ot other fencing, it would be the simplest matter for dogs or dispose of the photographs by pointing out that nos. 3 and 4 show, at the point where a ruler can be seen on the ground, the place where marks of blood were found after Gary's accident.
I should add, though it is not any great importance in the Case, that behind Forest Lodge there was a bungalow called River Lee which was occupied by a Mr. and Mrs. Weeks and their two young children.
On the morning of the 5th March, 1968, a Mrs. Butt with her three children, of whom the eldest was a 5-year-old girl called Nicola, called on Mrs. Draper. They had some refreshments. Gary and Nicola went out to play and Gary may perhaps have had a piece of toast in his hand. Mrs. Draper saw from her window the two children sitting on a pile of sand which was in the yard behind the wall on the right distress. The two women rushed out and found Gary lying on the ground in the yard entrance surrounded by six or seven Jack Russells. He was nearly naked, having nothing on but his vest and a piece of tee-shirt round his neck. When he went out he had been wearing, in addition to his vest and tee-shirt, underpants, a woolen jumper, shorts, anorak, shoes and socks and a woolen cap.Tron bits of his clothing were found strewn about the yard and, according to the defendant, the woolen cap and the shorts were found by him in the drive to Forest Lodge. The defendant also said that he found signs of a considerable souffle inside the entrance to that drive, though the police officer who examined the place that evening saw no such signs but did see signs of a disturbance on the sand heap in the yard on which Gary and Nicola had been sitting before the attack took place. But myself I do not think that anything in this case turns on the question where the incident occurred.
Gary was most severely injured. According to the agreed medical report he suffered something in the region of a hundred dog bites, the largest number of dog bites which the surgeon had ever seen, and he lost a large part of his scalp with some skin loss of his left cheek. Truly it was a terrible injury.
The defendant's account of what took place was contained in statements made by him to the police and, of course, in his evidence. He said that on the day in question he had on his premises, in addition to adult dogs, fifteen puppies. These were normally fed in two batches, one of seven and on of eight, in the covered coach house as marked on the sketch plan. Their normal feeding time was 8 a. m.; but on this particular day he was not feeling well and so contented himself at that time with giving them some biscuits. By about 11.30 he had prepared the food and was about to give it to the first batch of puppies when they suddenly ran down the drive. He walked down the drive shouting to the puppies to come back. He then heard screams, and ongoing round the corner into the lane saw the seven puppies outside the entrance to the yard of Hyde House excitedly tossing about pieces of clothing. He managed to drive them back to his premises. Shortly afterwards, as a result of a telephone message from Hyde House, he went there and learned what had occurred.
Later that day he shot two of the puppies because he had found blood round their mouths; and on the 8th March on his instructions Colonel Kingston, his vet., put down five other puppies.
It is obvious from this very brief statement of facts that no one will ever know precisely what happened or why it happened save that this little boy was so severely injured by the defendant's dogs. There was a wealth of detailed evidence, carefully and fully set out by the learned judge in his judgment; and a multitude of points were argued by learned counsel on both sides. But most of these matters have now gone out of the case.
The reason for this is that the first contention on the part of the plaintiffs, namely the attempt to prove scienter, namely, that the defendant knew of a vicious propensity in some or all of the dogs which took part in the affair to attack or bite human beings, was rejected by the judge. This was almost inevitable since it was impossible to show which dog or dogs actually took part in the attack and there was indeed no evidence to show any such propensity on the part of any of them. And it was to this point that a great deal of the evidence was directed.
The plaintiffs have not sought to disturb this part of the judgment. So that in this court we are concerned solely with the defendant's appeal against the judge's finding in favour of the plaintiffs on their alternative claim, namely, that in the circumstances the defendant was guilty of negligence. The judge stated his finding in these terms: "In my judgment, the attack on Gary directly resulted from the defendant's failure to take reasonable care to prevent this pack of terriers from escaping from his land. Gary's injuries were therefore caused by the defendant's negligence". As will be seen, this conclusion was based on the evidence of Mr. Watson, a veterinary surgeon, and Mr. Webster, a dog breeder, who were called for the plaintiffs, which evidence was in a very minor degree assented to by Colonel Kingston, the defendant's vet. Thecontention of Mr. O'Brien for the defendant was in effect that the conclusion of the learned judge was the result of a successful attempt on behalf of the plaintiffs, the case on the scienter rule having failed for lack of evidence, to prove scienter in another guise. Such expressions as "pack scienter" and "breed scienter" were used in the course of the argument.
There can, I think, be no doubt that certain modern authorities show clearly that an owner or keeper of an animal may quite apart from the scienter rule be liable for damage done by that animal if the owner or keeper puts it or allows it to be in such a position that it is reasonably foreseeable that damage may result. These authorities will be fully considered and discussed by my Lords and I therefore propose to deal only with some of them and that very briefly.
The first is, of course, Fardon v. Harcourt-Rivington (1932) (48 Times Law Reports 215), where a cause of action in negligence as opposed to liability under the scienter rule was clearly envisaged by Viscount Dunedin at page 216 and by Lord Atkin at page 217, where the learned Lord said, after having dealt with the scienter rule: "But it is also true that, quit apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbor".
Mr. O'Brien for the defendant emphasizes the words "put to such a use". But, for...
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