Ellis v Johnstone
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE DONOVAN,LORD JUSTICE PEARSON |
| Judgment Date | 03 December 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1203-2 |
| Court | Court of Appeal |
| Date | 03 December 1962 |
[1962] EWCA Civ J1203-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod,
Lord Justice Donovan and
Lord Justice Pearson
MR M. A. B. KING-HAMILTON, Q. C. and MR JOHN BOLLAND (instructed by Messrs Amery-Parkes & Co.) appeared as Counsel on behalf of the Appellant (Plaintiff).
MR JOHN PEPPITT (instructed by Messrs William Easton & Sons) appeared as Counsel on behalf of the Respondent (Defendant).
This appeal is from a decision of His Honour Judge Duveen given at the Watford County Court on the 1st August of this year, when he gave judgment for the Defendant for an agreed sum of £95. 18s.9d., alleged to be damage resulting from a collision between the Plaintiff's car and the Defendant's dog. The collision was alleged to be due to the negligent control by the Defendant of his dog.
Three questions arose in the appeal. They were, first, whether the rule that an occupier of land adjoining a highway isunder no obligation to fence to prevent animals from straying on to the highway applied to dogs; secondly, whether there were special circumstances which would put the Defendant, as the owner of the dog, under a duty to take care; and, thirdly, whether the proper inference on the facts was not that the dog had escaped, but that it had been let out by its owner.
These are the facts. The Defendant is the owner and occupier of a house called "The Orchard", standing in large grounds fronting on to the Chorley Wood Common Road which runs between Amersham and Rickmansworth. At the material part the road, according to the plan before us, is about 17 ft. wide. There are two drives to the house. The one with which we are concerned is about 140 ft. from a bend in the road in the Amersham direction. There is no footpath on either side of the road, and, on the side of the road where the house is, there is a wall, and, on the Rickmansworth side of the gate, a hedge some 5 ft. high, which might well be difficult to see through. On the opposite side of the road from the house there is an open common. The gate on to the road from the house, according to the evidence, is rarely, if ever, closed.
The dog in question was a large Welsh Collie, and we were told in Court that it was about four years old. According to the evidence, it had a well-known habit of crossing to the common when it felt like it, and it was said in evidence that the dog had "no road sense". The Defendant himself, in his evidence, said that he had never tried to train the dog to have any. There was some evidence (which was disputed) that the dog had from time to time run at motor-cars and other wheeled vehicles. But that did not appear to be material to the question which had to be considered, and the learned Judge made no finding on it. It was in fact disputed.
On the 19th November, 1960, the Plaintiff was driving his car in the direction of Amersham from Rickmansworth.He had just changed into top gear, having been held up before he went on to this road from the main road, and his speed, according to his speedometer, when he changed into top gear, was about 18 miles an hour. The learned Judge found that there was no criticism of the way the Plaintiff was driving. As he approached the gate to The Orchard, the Plaintiff says that the dog "dashed" out of the gate and bounded across the road in the direction of the common, and was. struck by the near side of the car and killed. The damage to the car was above the bumper bar, the inference being, presumably, that the dog was struck when it was bounding above the level of the road. The evidence was that the Defendant came on the scene and said words to the effect of "This was bound to happen". There is a conflict as to what he did say. The Defendant himself, in his evidence, said that he had no idea what had happened, and he was referring merely to the proximity of the gate to the bend, and in no way making any reference to any habit of the dog. There appears to be no specific finding on this point by the learned Judge. There was other evidence. For instance, there was the evidence of a cyclist, a man of the name of Broadstock, who was cycling behind the Plaintiff's car and saw the dog dash across the road. There was- the evidence of a Mrs Harvey, who lives nearby, that the dog often bounded unaccompanied across the road on to the common. There was evidence of a police officer who had been stationed in that part of the country for a number of years and knew the dog. He had seen the dog a number of times, sometimes walking and sometimes running across the road to the common unaccompanied. But he stated that at no time had he received any complaint as to the behaviour of the dog.
The Defendant himself in his evidence said that he had never known the dog rush out on to the road. He said that he himself did nothing to stop the dog and had never-trained it in any way in the manner in which it should cross the road, and hadhad no cause to worry about it.
The learned Judge found (1) that the dog "had a habit, well known to the Defendant, of crossing the road from the house whenever it felt like it, unaccompanied, for the purpose of sporting on the common", (2) "The collie came out of the gates, dashed across the road (in accordance with its habit of crossing the road unaccompanied to get on to the common, of which I have Said the Defendant had full knowledge), in front of the Plaintiff's car". And (3) "I find that this entrance" – that is the entrance to the drive from the road – "was no more dangerous than any other entrance on a busy road".
The learned Judge referred to Hughes v. Williams, 1943 King's Bench, page 574, and said that in that case "the Plaintiff relied on facts as showing 'special circumstances' which seemed to me much stronger than the facts in the present case. The Court of Appeal however ruled that those facts could not amount to special circumstances and in my view there are no 'special circumstances' in this case". Then, having considered whether a dog could be regarded as a domestic animal within the meaning of the rule to which I have referred, he said: "Accordingly, although in my view the Defendant failed to take any precautions to prevent the dog escaping on to the highway, he was not in breach of any duty to the Plaintiff. It follows that this action fails. I should mention that I have taken into account and rejected Mr Holland's point that the Defendant has admitted by his pleading that the dog was under his control at the time of the accident".
There were two questions, therefore, for this Court to consider. They were, first, is a dog a domestic animal within the rule stated in Searle v. Wallbank, and, secondly, if a dog is within the rule, were there special circumstances establishing some particular duty on the defendant.
We were referred to the case of Gomberg v. Smith, aresent decision of this Court reported in 1962, 2 Weekly Law Reports at page 749. The Court there consisted of Lord Justice Pearce, lord Justice Harman and Lord Justice Davies, and the matter to he considered was not whether a dog was a domestic animal within the rule as laid/down in earle's case, but whether, on the facts of that particular case, there was any liability on the owner of the dog which was let out on to the highway from a garage or shop by its owner. The three Lord Justices expressed their opinions on whether a dog was a domestic animal. Lord Justice Holroyd Pearce, at page 757, said this: "I, like my brother, incline to the view that the owner's immunity with regard to the escape of cattle and the like does not extend to dogs". Lord Justice Harman, on the other hand, at page 758 said that in the case of an animal allowed to escape "no distinction can be made between urban and rural situations, nor between dogs and other domestic animals". And Lord Justice Davies at page 763 said that "the rule does not apply to dogs, and the owner or occupier of land adjoining a highway is under a duty to take reasonable care in all the onto circumstances to prevent his dog from escaping on to the highway". The views above expressed were not essential to the decision in the case, and we are therefore not bound by them, although, of course, they are views we regard with considerable attention and respect.
Mr King-Hamilton has pointed out that no case decides specifically whether a dog is a domestic animal.
Lord Maugham, in Searle v. Wallbank, 1947 Appeal Cases, page 341, dealt with the origin of the rule at some length. His view was that it dated from the middle ages, before the commons were enclosed and when roads were little more than tracks leading from one community to another. There were no hedges or fences dividing the roads from the adjoiningland, and cattle and other domestic animals were in the habit of moving across the roads from time to time as their fancy or necessity required. As the commons were enclosed gradually over the centuries, and as roads became used for faster and faster traffic, measures were adopted by some landowners to mark more clearly the division between the road and their land and to prevent animals from going on to the road from the land. But, at no time has any duty been established that the owner of land abutting on to a highway is under any liability so to fence his land as to prevent animals straying from it on to the road.
Mr King-Hamilton pointed out that, although there were many cases affecting horses, Searl's case itself was one of them, and although there were some cases affecting cattle, there was not in fact any case in which dogs had been concerned. It was his submission that dogs, because of inherent characteristics, should not be subject to the rule. His contentions were twofold. He said, in the first place, that a dog was amenable to training, and in those circumstances should be trained; and, secondly, that...
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