Gomberg v Smith
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE HARMAN,LORD JUSTICE DAVIES |
| Judgment Date | 22 January 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0122-1 |
| Date | 22 January 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0122-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Holroyd Pearce
Lord Justice Harman and
Lord Justice Davies
Mr J. D. F. MOYLAN (instructed by Messrs Muscatt & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr J. B. MORTIMER (instructed by Messrs Lesser & Co.) appeared on behalf of the Respondent (Defendant).
The Plaintiff appeals against a judgment of His Honour Judge Potter at the Bow County Court dismissing his action for £73 damages for negligence resulting from a collision between the Plaintiff's van and the Defendant's dog.
At 6.30 p. m. on the 3rd November, 1960 the Plaintiff, driving his light van, entered Roman Road, Bow, from a side street. Having completed the turn, he was going eastwards on his correct side at 10 or 15 miles per hour in second gear. Suddenly he felt a heavy impact, and stopped dead. He had come into collision with the Defendant's very large St. Bernard dog. The Judge, who saw him, described him as hip high. After the accident, the dog ran off down an adjacent street. The Plaintiff was badly shaken, since at first he thought that, owing to the weight of the impact, he must have hit and injured a man or woman.
The Defendant spoke to the Plaintiff and said that he was the owner of the dog. He told the Plaintiff not to worry, since it was not his fault, and the dog had run into the van. He also said that the dog was not on a lead, that the dog ran across the road, that it was his (the Defendant's) fault, and that he should' not have called the dog. He took the Plaintiff into his flat and gave him a cup of coffee. He asked him not to report his knowledge of who the owner of the dog was, and promised to pay all expenses. Subsequently he changed this point of view and declined to pay.
In answer to a letter before action the Defendant's solicitors wrote on the 25th November as follows: "Our instructions are that at about 6.30 p. m. on the 3rd November last our client was crossing from one side of Roman Road to the other with his dog on a lead when your client emerged from a side turning and accelerated his van to an excessive speed and then drove on his side lights, obliging our client, whohad by then reached the crown of the road, to finish crossing by running. He dropped the lead and called to the dog, which, being a large St. Bernard, was slow in movement, as a result of which your client collided with the dog and caused it quite serious injury".
When that account was challenged by the Plaintiffs solicitors, the Defendant's solicitors reiterated it. That story was repeated in the Defence.
There was evidence from two independent witnesses called by the Plaintiff. The Defendant did not choose to give evidence. The truth of the matter appears to be this. The Defendant owns a super market shop in Roman Road, which was on the Plaintiff's near-side, not far from the place of the accident. Just before the accident the Defendant came out of his super market with a bucket in his hand. The dog came out at a "terrific speed" and ran across Roman Road to a wall at the opposite side of the road. It was not on a lead. The Defendant followed it, and ran across the road shouting at the dog. The dog turned back, evaded the Defendant, and ran or "shot" back across the road, colliding with the van. The dog's first Journey across the road may well have happened when the Plaintiff was turning into Roman Road.
Thus the Defendant's story was almost entirely untrue. But the Plaintiff seeks to rely on it so far as it admits by implication that the Defendant had deliberately set out from his premises with the dog, and in so far as it does not seek to say that the dog escaped from his premises on to the highway by any misadventure. It is a fair comment that since the Defendant was prepared to lie in order to exculpate himself, it is unlikely that he would not put forward the excuse that the dog had escaped from the shop through mischance if that were the truth.
The learned Judge assessed the damages at £33 in case of an appeal, and said that he would have found the Plaintiff one-quarter to blame owing to his failure to keep a good look-out.
There is an appeal against the finding as to the amount of damages. But that was a simple question of fact, and the appeal must fail on that point.
The Plaintiff also appealed against the finding of contributory negligence. That finding was based on an inference drawn from the fact that the Plaintiff failed to see by the artificial lighting a brown dog which ran at a "terrific speed" or "shot across" (to use the witnesses' phrases) straight into the front of the van from its offside pavement. The Judge said that there was nothing to prevent the Plaintiff seeing the dog, and if he had, the Judge thought he had some chance of slowing or avoiding the dog altogether. In my judgment, there is no evidence from which inferences can be drawn that justify a finding of contributory negligence.
The main point of the appeal is whether there was any liability on the Defendant. If the Defendant deliberately brought the dog on to the highway, he had a duty to take reasonable care to control it while it was there. In Dean v. Davies, 1935 2 King's Bench, 282, it was held that a person who brings an animal on to the highway must take reasonable care to prevent it from doing damage to other persons thereon. And it was pointed out that what constitutes "reasonable care" was a question of fact in each case, and that the standard of care may not be the same in the country as in a town. See also Turner v. Coates, 1917 1 King's Bench, 670; Gayler & Pope v. Davies. 1924 2 King's Bench, 75, and the dictum of Lord Porter in Searle v. Wallbank, 1947 Appeal Cases at 356.
In Pitcher v. Martin, 1937 3 All England Reports, 918, the Defendant on a highway held her dog's lead soloosely that the dog broke loose and the lead became entangled with a pedestrian. The Defendant was held liable for the pedestrian's injuries.
But the Judge in the present case found that the dog escaped from the Defendant's premises, and that after it rushed across the road, the Defendant made reasonable, though unsuccessful, efforts to recapture it. He held that, on the authority of Searle v. Wallbank, and other cases, there was no duty of care on the Defendant to prevent escape, and that therefore the Defendant was not liable.
The law on the subject is difficult, archaic and ill-adapted to urban communities. We have had the advantage of a very fair and careful argument on both sides. Mr Mortimer, for the Defendant, contends that Searle v. Wallbank and other cases establish, that there is no duty of care on the owner of a dog to prevent its escape from his premises even if they adjoin the highway, and even if the escape be into a crowded urban roadway where a dog, as is shown by the published figures with regard to road accidents, is likely to be a danger to traffic.
Mr Moylan, for the Plaintiff, contends that the cases do not establish that the owner has no duty of care to prevent a dog escaping from a house adjoining the highway in an urban area if danger to traffic can reasonably be apprehended. He argues that the immunity does not extend to owners of dogs in urban surroundings.
So far as concerns damage caused by the mischief of animals (such, for instance, as biting, scratching or kicking) the law is clear. The owner of an animal ferae naturae is liable for its mischief, since the nature of the wild animal is mischievous. But the owner of an animal mansuetae naturae (cattle, horses, dogs, cats and the like) is not liable for its mischief, unless ocienter is shown, that is, unless he isshown to have had knowledge of its propensity to that or similar mischief.
The danger caused by a dog in traffic, however, does not arise from any mischief in its nature, but from its mere presence in the roadway. That is a danger to be apprehended from any animal, whether wild or tame, which is liable to step into the path of fast-moving traffic. It is akin to the danger caused by an infant let loose in traffic. In Carmarthenshire County Council v. Lewis, 1955 Appeal Cases, 549, the House of Lords held an education authority liable for a road accident caused by a four year old boy who was allowed to stray into the road from a school adjoining the highway during the temporary absence of a teacher.
No English case has been cited which deals expressly with such an accident caused by a dog. There are many cases dealing with accidents caused by the mere presence of large animals on the road such as horses, sheep and cattle. And in those cases the owners have been held not liable for the escape of the animals.
Lord Atkin in Pardon v. Harcourt Rivington, 146 Law Times, 391, at page 392, having dealt with the owner's liability both, for wild animals and, where scienter is proved, for tame animals, said: "Quite 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 neighbour - the ordinary duty to take care in the cases put upon negligence". See also Lord Justice Greer in Sycamore v. Ley, 147 Law Times, 342, at page 345. These passages were quoted with approval by Lord Justice Slesser in Dean v. Davies above.
Lord Atkin's dictum shows that although an owner may be relieved of liability for escape in general circumstances, yet there may be a duty to prevent escape in special circumstances when that escape is likely to lead to damage to persons lawfully using the highway
In Hughes v. Williams, 1943 1 King's Bench, 574, this Court dealt with a collision caused by the escape...
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