A biting issue

This article was first published in PI Focus for the Association of Personal Injury Lawyers.

Introduction

Dog bites are on the increase.  In May 2015 the BBC reported statistics which showed that the number of people taken to hospital after dog attacks had risen by 76% in the past decade.  With rates of hospital admissions for dog bites the highest in urban areas (81%), and "between two and three times as high for the 10% most deprived areas" this can mean that dog bite claimants seeking compensation have difficulty finding a solvent defendant.    

Assuming the defendant has an insurer standing behind them (or in the case of a police dog bite, the police force) the cause of action of choice for bitten claimants is usually the Animals Act 1971 because it offers strict liability. Negligence and perhaps breach of statutory duty under the Occupiers’ Liability Acts are also potential causes of action.  In the case of a police dog bite, trespass to the person may feature. 

This article looks at some of the finer points of the Animals Act 1971 as it relates to dog bites as well as police dog bites in light of the Supreme Court giving the claimant permission to appeal in Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15.

The Animals Act 1971 and dog bites

The Animals Act 1971 imposes strict liability on the keeper of an animal for damage done by that animal. The keeper is defined as a person who owns the animal or has it in his possession.

S.2(2) of the Act applies to animals of a non-dangerous species, which includes dogs. It lays down the conditions for the keeper’s liability for damage caused by a non-dangerous species if:

(a) the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and

(b) the likelihood of the damage or of it being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally found except at particular times or in particular circumstances; and

(c) those characteristics were known to the keeper.

The court has to consider each part of this three-part test in turn. Under s.2(2(a) the claimant has to prove that either (i) personal injury was the kind of damage that the dog, unless restrained was likely to cause or (ii) which, if personal injury was caused by the dog, was likely to be severe. These are alternative criteria, satisfaction of either suffices. In relation to dog bites, the first limb part of s.2(2)(a) is usually difficult to prove unless the dog in question is particularly fierce.  Most claimants focus on the second limb part of s.2(2)(a). The leading House of Lords case Mirvahedy v Henley [2003] UKHL 16 confirmed that this test is not satisfied by looking at the injury actually sustained by the claimant and deciding whether that was severe or not. The mere possibility of severe injury is not enough, it has to be likely.

S.2(2)(a) is also linked to the characteristic referred to in s.2(2)(b). If the alleged characteristic of the dog is biting, the question is: is personal injury caused by a dog bite likely to be severe?  In previous dog cases such as Cummings v Grainger [1977] QB397 (bite by an Alsatian) and Curtis v Betts [1990] 1 WLR 459 (bite by a Bull Mastiff) the courts have found fairly easily that a dog bite from a large dog is likely to be severe without needing expert evidence.  However this issue has not been squarely confronted in Animals Act cases (see Lewison LJ dissenting in Turnbull v Warrener [2012] EWCA Civ 412) and if the defendant puts it in issue, a claimant may have difficulty in proving that a bite, especially from a smaller dog, is likely to be severe.

S2(2)(b) means that the claimant has to prove that the likelihood of the injury or of it being severe was due to either the dog’s characteristics (biting people) which are not normally found in dogs (the first class) or are not normally found in dogs except at particular times or in particular circumstances (the second class).

Lord Nicholls of Birkenhead in Mirvahedy said that “the first class embraces a case where animals of the species are normally docile but the particular animal is not.”  So if the dog was a vicious dog which regularly bit people then it would fall within the first class. Evidence would be needed from the claimant of previous bites and the circumstances in which they occurred. 

Lord Nicholls described the second class in Mirvahedy when he said “however, there are many species of animals which are normally docile but which, in certain circumstances or at particular times, behave differently, even dangerously. Dogs are not normally prone to bite all and sundry.  But a dog guarding his territory, or a bitch with a litter whose pups are being threatened, may well be vicious.”

Past authorities have been divided on the interpretation of the second class or limb part of s.2(2)(b). On the question of interpretation of s.2(2)(b) in Mirvahedy the House of Lords found that bolting was normal behaviour for horses in circumstances where they were panicked. As the defendant horse owners were aware that horses bolt if panicked (therefore fulfilling s.2(2)(c)), they were liable for the consequences. 

Usually expert evidence is required to answer the question posed by s.2(2)(b), in particular whether a dog falls into the second class or not. The expert evidence would have to be directed to the specific facts of the case as well as considering the specific breed. Species includes sub-species, so the comparison required in s.2(2)(b) is between the dog in question and others of its breed. Without supportive expert evidence, claimants are likely to have an uphill struggle at this stage. In one case where I was instructed for the defendant there was no dispute that the defendant’s Labrador had badly bitten a meter-reader who had walked up the driveway. The well-trained Labrador had not bitten anyone before. The claimant failed to obtain any expert evidence that it was normal for Labradors to attack and bite in circumstances where there were strangers on its property. Consequently his claim failed at trial, specifically at s.2(2)(b) stage, because the judge was not prepared to infer this was normal behaviour without expert evidence.

The third part of the test in s.2(2)(c) is a keeper’s knowledge of the animal’s characteristics. It is not just actual knowledge that satisfies s.2(2)(c) but also inferred knowledge. For example, in Mirvahedy, the defendants accepted that, as experienced horse owners, they knew any horse would bolt if sufficiently frightened and that satisfied s.2(2)(c).

There are several important defences in the Animals Act 1971 to assist defendants, including situations when it is the claimant that causes the animal to behave in that way, and voluntary acceptance of risk. This defence was successful in Preskey v Sutcliffe [2013], Leeds County Court (unreported but on Lawtel) when the claimant had restrained the dog that bit him.

Police Dog Bites

If bitten by a police dog a claimant may have a claim for the tort of trespass against the person (assault and battery) in addition to negligence and a claim under the Animals Act. As battery is the actual infliction of unlawful force on another person, in a police setting this can include force through the use of a weapon, such as a truncheon, Taser or police dog.

It is not necessary to show an intention to injure the claimant. The intention relates to the act constituting the trespass. A battery will be committed if force is applied intentionally or if the police officer knew his act was likely to result in the application of force. Therefore if a police officer instructs a police dog to bite the claimant, the bite can constitute trespass to the person consisting of an assault and battery unless the police can establish a justification. 

The police have an important defence contained in s.3(1) of the Criminal Law Act 1967 if they can prove the force used was reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. This will often be a very difficult defence for a claimant to overcome.

What if there was an “unwarranted” or “accidental” bite by a police dog? For example, the suspect hiding in bushes who gets bitten even though he does not run away or attack the police dog that finds him? In Murgatroyd v The Chief Constable of West Yorkshire Police [2000] CA, unreported, the police were held liable to the claimant when a police dog was sent into a house through a gap in the door, behind which the claimant was resisting opening, and bit the claimant. The dog was not ordered to bite the claimant but it was predictable that this would happen. 

In these circumstances the bite history of the police dog should be obtained and scrutinised.  If the dog has a history of bites when not commanded to, this could be sufficient evidence to show that it was foreseeable the dog would bite.

What if the claimant was never the intended target, and was just in the wrong place at the wrong time? Are the police liable to the innocent passer-by that gets caught up in the pursuit of a fleeing suspect and gets bitten by the pursuing police dog in the ensuing melee? The liability of the police in such situations is currently in flux. The issues of public policy and the Hill immunity are soon to be re-considered by the Supreme Court in Robinson v Chief Constable of West Yorkshire Police. Mrs Robinson was walking along the pavement in Huddersfield when, unbeknown to her, she passed a drug dealer. The police spotted the drug dealer and decided to arrest him.  During the arrest Mrs Robinson was knocked over, everyone fell on top of her and she was injured. The Court of Appeal held that in this case it was not fair, reasonable or just to impose a duty of care on the police to individuals during the detention and prevention of crime.  The risk to individual passers-by inadvertently caught up in an arrest was trumped by the risk to society as a whole if he was not arrested. This August the Supreme Court granted the claimant permission to appeal.

In the meantime, claims resulting from accidental or inadvertent bites are likely to cause difficulty for the police. Recently I was instructed for the claimant, a female university student who was sitting outside her halls of residence with a female friend when she was bitten several times by a police dog that was conducting an off-the-lead search for a male suspect. The police accepted that the claimant did not run, nor did she act aggressively towards the dog. Instead they pleaded a defence that the claimant was bitten because her movements were “perceived as a threat” by the dog. This, somewhat surprising, positive case was not supported by factual evidence (it is difficult to think of what evidence could have been called…) nor expert evidence. Having disputed liability from the start, Chester Police Force agreed a substantial settlement on the eve of trial.

Conclusion

If contested, dog bite claims are usually:

1. complicated to prove because the Animals Act 1971 remains confusing;
2. expensive to run as expert evidence is usually involved; and
3. difficult to win against the police because of public policy arguments.

Hopefully the Supreme Court’s future analysis of the public policy issues in Robinson will clarify liability for inadvertent police dog bites.