AWARE

Keoghs Insight

Author

Lorna Affleck

A Dog is for Life – Not Just for Christmas. Liability for Animals in Civil Cases

AWARE04/01/2013
Casualty Aware 1

At this time of the year, when pets are sometimes given as a Christmas gift, most people’s biggest concerns with their new puppy might be where they are going to store all those new dog toys, or what colour of collar might suit Rover and how they are going to stop man’s best friend from chewing the dining table legs! With all the excitement of the new addition to the family, most new pet owners might forget the responsibility that comes with being the ‘Keeper’ of an animal.

After all, “a Dog is for Life not just for Christmas” and whilst that puppy might have been a surprise, a civil claim later down the line might come as an even greater shock!

And it doesn’t stop there – anyone who is control of the dog at the time of an accident, such as taking it for a walk, could also be a potential defendant.

If an Animals Act claim lands on your desk, keep the following in mind as examples of the type of information you need to get your ‘paws’ on:-

The Law

Collating early evidence in Animals Act cases is vital. The Animals Act 1971 and associated case law is complex. However, the key steps to bear in mind when getting started on any case of this nature are:

  • Identify the defendant(s) – who is the “Keeper” of the animal under s 6(3) of the Act? A person is a “Keeper” of an animal if he owns the animal or has it in his possession.
  • Is the animal a dangerous animal for the purposes of s 6(2) of the Act? A dangerous species is a species not commonly domesticated in the British Islands and whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they do is likely to be severe. If it is, as per s 2(1) of the Act, strict liability will attach to the “Keeper” of the dangerous animal.
  • If the animal is not dangerous, have all the three provisions of s2 (2) of the Act been satisfied? If so, liability will attach to the “Keeper”.
  • Was the animal, unless restrained, likely to cause damage of this kind? The key word here is ‘likely’. In the absence of evidence as to the animal previously causing damage, this test will rarely be satisfied – for example, a previously good natured horse who has never thrown a rider off before.
  • When damage has actually been caused, was it likely to be severe? For example a border collie dog is not likely to cause physical injury, but due to the size and speed of the dog, if it does cause injury, it is likely to be severe.
  • These tests fond in s2 (2)a are known as ‘the likelihood tests’ and will be met if either criteria is satisfied. s2(2)b ‘the characteristic test’ also has 2 limbs and again satisfying either limb will suffice
  • Was the likelihood of damage or it being severe due to characteristics of the animal which are not normally found in animals of the same species? For example, a dog might not like leaves blowing in the wind and might dart or pull on the lead when confronted with this, but this is not a characteristic of the dog’s breed.
  • Is the likelihood of the damage or its being severe due to characteristics that are not normally found except at particular times or in particular circumstances – for example, a horse might buck or rear when frightened.
  • Finally s2 (2)c the characteristics were known to the keeper.

Investigations

  • Every dog has a ‘personality’ and you need to establish the dog’s previous behaviour – obtain witness statements from the owner, the keeper, friends and family who have known the animal and people who have walked the dog or looked after it who can tell you what the dog is like – is the dog placid, calm and well behaved or boisterous and disobedient?
  • What is the extent and quality of the witness evidence?
  • Has the dog you are dealing with been in the ‘doghouse’ before for knocking Grandma over by jumping up? What is the animal’s nature, how does it behave? Has it any particular propensities? If so, you need to know about them! Does it have any characteristics which are peculiar to it – such as in the case of Kite v Napp The Times 1.6.1982 where the dog involved was known to bite people carrying bags!
  • Has it acted in the same way as the allegations now being made?
  • Did the owner have reason to anticipate the behaviour? If yes, did they act appropriately in the circumstances?
  • Is there a causal link between the injury and the behaviour/characteristic?
  • It’s not only us humans that have medical records! Obtain the veterinary records for the defendant’s dog. If more than one dog is involved request records for the other dogs involved.
  • Make sure you get the full ‘tail’ Obtain certificates, and any pedigree documents. If the dog is from a rescue, trace the rescue centre to ascertain if they have any notes of the dog’s temperament when they took possession of it.
  • Attempt to obtain the medical records, including any ambulance records to assess the account given to the treating clinicians.
  • Consider a site inspection – do you need to obtain photographs of the accident location?
  • A recurring theme in investigating any claim will be the reduction in time limits for liability decisions to be introduced as part of the Jackson reforms in April 2013. Given the need to front-load evidence in these cases investigations will need to put in hand at the first “sniff’ of an incident.

There is a wealth of case law which illustrates how these tests work in practice which warrants an article in itself.

For further information on dealing with Animals Act cases, please contact Lorna Affleck or Megan Bradshaw.