FACTS:-

At 6.30pm on 3 November 1960, the Claimant, 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 ten or fifteen miles per hour in second gear. Suddenly he felt a heavy impact, and stopped dead. He had come into collision with the Defendant’s large St Bernard dog.

The Defendant owned a shop adjoining a highway in a built- up area, on Roman Road, Bow. As he came out of his shop after dark, his St Bernard dog, which was not on a lead, came out at and ran across Roman Road to a wall at the opposite side of the road. The Defendant followed it, and ran across the road shouting at the dog. The dog turned back, evaded the Defendant, and ran back across the road, colliding with a van being driven by the Claimant.

At the time the Defendant spoke to the Claimant, stating that it wasn’t his fault, and the dog had run into the van. He also said that the dog was not on a lead, that the dog had run across the road, that it was his (the Defendant’s) fault. He promised to pay all expenses.

Subsequently, the Defendant changed his point and view and declined to pay. Evidence from two independent witnesses called by the Claimant at trial, confirmed the Claimant’s version of events.

The learned judge assessed the damages at £33 in case of an appeal, and said that he would have found the Claimant one- quarter to blame owing to his failure to keep look out. The judge said there was nothing to prevent the Claimant seeing the dog, and, if he had, there was some chance of slowing down and avoiding the dog altogether. The Claimant appeals against the finding of contributory negligence against him in the Court of Appeal before Holroyd Pearce, Harman and Davies LJJ.

HELD:-

Holroyd Pearce LJ immediately dismissed contributory negligence from the Claimant as there was no evidence from which inferences could be drawn to justify this. The main point of the appeal was whether there was any liability on the Defendant. If the Defendant had deliberately brought the dog on to the highway he had a duty to take reasonable care to control it while it was there.

Holroyd stated that the law on this particular subject was difficult, archaic and ill- adapted to urban communities and it was difficult in deciding whether such duty arose as both sides put forward fair and careful arguments. Counsel for the Defendant contended that Searle v Wallbank [1947] 1 All ER 12 and other cases established that there is no duty of care on the owner of a dog to prevent its escape from his premises even if they did adjoin the highway. Counsel for the Claimant contended that the immunity from this duty of care does not extend to owners of dogs in urban surroundings.

Halroyd addressed a number of authorities in reaching a decision, however none specifically dealt with accidents caused by dogs.

Despite such uncertain case law, Halroyd Pearce came to the conclusion that the Defendant was negligent as he was deliberately taking or letting the dog out and that he did not have it on a lead or otherwise take steps to control it when he should have done. He stated that when a man and his dog emerge together from premises it is some prima facie evidence that he is taking his dog out or letting it out. The supermarket had closed by then and it was unlikely that the dog would have been in the shop unless the Defendant had let him into it; and his only reason for letting the dog into the supermarket from the living accommodation upstairs, would be in order to let it out on the road.

The case identified, that in law there is a difference between an animal escaping on to a highway and one that is taken on or let on to one. Consequently, if an animal escapes no such duty of care exists.

Harman LJ agreed with Halroyd Pearce that the judge at first instance was wrong in determining that there was no evidence suggesting that the Defendant brought the animal on to the highway. He agreed that the evidence of the dog and owner emerging from the shop together was sufficient to infer that the animal was let out. According to Harman LJ a man who lets a dog out of his weight and size loose on to a busy road and then further excites it by shouting at it, is clearly liable for the damage it does by running back across the road and colliding with the Claimant’s van.

His Lordship was heavily influenced by the authority of Deen v Davies [1935] All ER Rep 9, in which it was held that if the animal’s owner brings it on to the highway he owes a duty of reasonable care to other users of the road. Romer LJ  ([1935] All ER Rep at p 15 says;

“It will be found in some cases that where a man has so brought an animal on to the highway he has been held liable for damage caused to another party…. As I read those cases … it has been clearly established that the owner of an animal who brings it on to the highway does owe a duty to those who are using the highway to use all reasonable care to prevent the animal damaging persons. What may be reasonable care in the country may not be reasonable care in the town. What may be reasonable care in the case of one animal may not be reasonable care in the case of another”

It is important to note that Harman LJ stated the case must be decided on its own facts and not on any view of the desirability that, in modern circumstances, it should be held that a man so situated in an urban area is not doing his duty to his neighbour if he carelessly allows his dog to escape from his house and cause damage to the users of the street. He saw no escape from the rule that there is no such liability having regard to the decision in Hughes v Williams [1943] 1 All ER 535. Neither did he think a distinction should be made between urban and rural situations, nor between dogs and other domestic animals.

Davies LJ agreed with his fellow lordships that the Defendant let his dog out, and consequently was negligent for failing to take reasonable steps to control it.

He adds further to the debate. He comments on the two questions that were argued (i) does the rule in Searle apply in towns or urban areas as well as in country districts? (ii) Does the rule apply to dogs? In regards to the first question, he could see nothing to justify the distinction between rural and urban, according to him all land is “country” until it is built over. He would not accept that a difference in traffic conditions gives support to this distinction.

Davies LJ found the second question much difficult. He addressed the authorities of Searle and Heath’s Garage, Ltd v Hodges and their subsequent approach to this rule. In Searle the learned judge said ([1947] 1 All ER at p 16);

“What animals [is] the owner required as a matter of duty to fence in? It is admitted that dogs, cats, pigs and fowl cannot be prevented from straying by ordinary quickset hedges, yet accidents from their presence on roads must, I should suppose, be more frequent than those arising from straying horses or cattle”

In Heath’s Garage Neville J said ([1916- 1917] All ER Rep at p 363);

“I am unable to draw any distinction between domestic animals; I think horses, cattle, sheep, pigs, fowls and dogs fall into the same category for this purpose.”

Instead of accepting the view of the authorities, he was persuaded by the Report of a committee appointed by the Lord Chancellor published in a White paper in January 1953 Cmd 8746.  The passage read;

“A series of decisions have established beyond question that the common law imposed no duty on the owner or occupier of land adjoining the highway to prevent animals from escaping from it on to the highway. The rule is restricted to cattle and poultry. In “cattle” we mean to include horses, mules, asses, sheep, goats, swine and deer kept in a park or other enclosure, and in “poultry” we mean to include domestic fowls, turkeys, geese, ducks and guinea fowl”

In conclusion he found that the rule did not apply to dogs, and the owner or occupier of land adjoining a highway is under a duty to take reasonable care in all circumstances to prevent his dog from escaping on to the highway. Additionally, if the keeper of a dog takes or invites his dog on to the highway he is under a duty to take reasonable care to prevent the animal causing damage.

Related posts:

1. Smith v Ainger [1990]
2. Page v Smith [1996]
3. Smith v Stages [1989]