Whippey v Jones
Colin Tennant, FCFBA MA, (criminal & Civil Court expert witness) presents a illustrative case in which a Great Dane, present in a public location, leaped onto an individual, causing him to fall and sustain injuries. This case serves as a notable instance highlighting the relevance of the Animals Act 1971 and serves as a cautionary narrative emphasizing the importance of adequately training and controlling dogs within public areas. The expenses incurred in pursuing this case, ultimately reaching the appellate courts, would have amounted to a substantial financial burden for both parties involved
Mr Jones was visiting Leeds on business and decided to do some running training. While running along the footpath by the river, he was knocked into the area of his right shoulder by a Great Dane named Hector, who was off the leash and owned by Mr Whippey. Mr Jones suffered damages as a result of this incident and sued Mr Whippey.
Ex Tempore Judgment
The judge ruled that Mr Jones was not liable to Mr Whippey under the Animals Act 1971, but held that Mr Whippey was liable to Mr Jones in negligence. The judge allowed Mr Whippey to appeal in general terms. The judge also found that Hector was “the most gentle of creatures” and that Great Danes in general are not aggressive towards human beings. The judge found that Hector had no tendency to jump up at other people. Mr Whippey had stated in evidence that he would only let the dogs off the leash if he was satisfied that no one was about in the park area. However, the judge did not make an express finding that Mr Whippey should have seen that Mr Jones was running nearby along the footpath at the time that Hector was let off the lead.
Mr Giles Mooney, who appeared for Mr Whippey, argued that the judge erred in finding that Mr Whippey had been negligent. He submitted that, given his findings of fact, the judge’s conclusion that Mr Whippey had been negligent in handling Hector that day could not be criticised.
Duty of Care
In this case, Mr Whippey clearly owed a duty of care to Mr Jones with regard to the way Mr Whippey handled Hector in the public park in Leeds that afternoon and the judge so found. The effect of the judgment is that the judge found that Mr Whippey had failed to take sufficient care to ensure that there were no other people about before he let Hector off the lead. This is clear from classic statements of the law on the standard of care that is expected of people in circumstances where they owe a duty of care to others. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it.
In my judgment, the test that the judge applied in the first sentence of paragraph 17 of his judgment does not accurately reflect those statements of the law. A good way to check whether the judge applied the right test is by reference to the judge’s findings when he dismissed Mr Jones’ claim under section 2(2) of the Animals Act 1971. The judge held that Mr Jones had failed to prove any of the three elements set out in section 2(2) of that Act, all of which must be established before Mr Whippey, as Hector’s keeper, could have been held liable under that Act for damage caused to Mr Jones by Hector. The judge held that Mr Jones failed to prove that the “damage” that he has suffered, i.e. a personal injury resulting from physical contact with Hector, ” was of a type which the animal was likely to cause. In my opinion, it demonstrates that the judge did not apply the correct legal test.