HHJ Walton, 12 June 2006

 

Newcastle upon Tyne County Court (4DH01030)

 

Jonathan Clarke (Old Square Chambers), counsel for C, instructed by Lees Lloyd Whitley

 

Michael Ditchfield (Plowden Chambers), counsel for D, instructed by the Treasury Solicitor.

 

 

C was employed by D in the Prison Service as a dog handler. D provided C with a German Shepherd dog with which he was to work and to house at his home in conditions dictated by D. In the early hours of 11 May 2001, during the night shift, whilst C and the dog were patrolling the prison, the dog went lame in the left hind leg. C took the dog to the vet approved by D. The vet was unable to reach a firm diagnosis. The vet provided C with mild anti-inflammatory pain killers for the dog and advised C to give the dog kennel rest at home. C returned home, placed the dog in its kennel and went to bed. That evening, C let the dog out of the kennel to toilet and prepared the medication in the manner he always used when administering medication for the colitis that the dog occasionally suffered. As C was doing so, the dog suddenly attacked him, inflicting serious bite wounds to C's arm. The dog was subsequently destroyed.

 

C claimed damages. The claim was based solely on Section 2(2) of the Animals Act 1971. C alleged that the dog was in pain at the time of the attack, that being in pain was the cause of the attack, that being likely to launch an unprovoked attack is a characteristic not normally found in German Shepherd dogs other than in particular circumstances, that being in pain is such a circumstance and it was known to his superiors that a dog in pain is likely to bite.

 

D denied liability. D contended that C was the keeper and that D, despite owning the dog, was not the keeper. Who was the keeper rested upon who had control and it was C who had control. D denied that the dog was in pain at the time. D denied that being in pain is a "circumstance" within the meaning of the second limb of s.2(2)(b) which requires something external to the animal. In any event, on the facts, the attack was wholly or partly due to C's own fault in how he dealt with the dog.

 

Liability was tried as a preliminary issue.

 

HELD:

On the facts, the dog was in pain at the time of the attack and this was the cause of his attacking C. None of the allegations that C was at fault were made out. Being in pain is a "circumstance" within the meaning of the second limb of s.2(2)(b). There is no basis in the Act for a distinction based upon external and internal factors. D, as owner, was a keeper within the meaning of the Act as provided by s.6(3)(a). Lack of control did not render D not a keeper. In any event, on the facts, D had control over the manner of C's housing and caring for the dog and therefore had a degree of control. C and D were both keepers and one keeper can recover under the Act from another keeper (Flack v. Hudson [2001] QB 698 applied). D, by its officers, knew that a dog in pain was likely to bite and therefore had the knowledge required by s.2(2)(c).

 

Judgment for C.

 

This report prepared by Jonathan Clarke.