Whippey v Jones

In the late afternoon of 23 June 2004, Mr Andrew Jones, the respondent, was running along a footpath at Riverside Walk at the side of the River Aire at Kirstall in Leeds. He was aged 42 and an experienced runner. He was visiting Leeds on business at the time and had decided to do some running training. On the footpath he had an encounter with a fully grown 2 year old Great Dane called Hector, who was owned by the appellant, Mr Christopher Whippey. Mr Whippey was an RSPCA Inspector and closely connected with the care of Great Danes. As a result of the encounter, Mr Jones fell down a slope to the river and he badly broke his ankle.

Mr Jones sued Mr Whippey for damages suffered as a result of this incident. He claimed that Mr Whippey had been negligent in the way he had handled Hector that afternoon whilst Mr Whippey had taken Hector and another dog for a walk in the park which is adjacent to the riverside footpath. Mr Jones also claimed that Mr Whippey was liable to him under the provisions of the Animals Act 1971, in particular under section 2.

The issue of liability came on for trial before HHJ Bartfield on 17 July 2008, some 4 years after the incident. The judge heard oral evidence from Mr Jones and Mr Whippey. In an ex tempore judgment, the judge ruled that Mr Jones was not liable to Mr Whippey under the Animals Act 1971. However, the judge held that Mr Whippey was liable to Mr Jones in negligence. The judge then went on to assess Mr Jones’ damages at £13,500 plus interest and he gave judgment for a total sum of £15,359.10 plus costs. The judge gave Mr Whippey permission to appeal, apparently in general terms. We heard the appeal on Monday, 30 March 2009 and announced at the conclusion of argument that we would allow the appeal for reasons to be given later. These are my reasons for allowing the appeal.

The findings of fact of the judge, which are not challenged on this appeal, are as follows: In June 2004 Hector was fully grown. The evidence was that he weighed about 12 ½ stone. The judge found that “…such a breed of dog can be intimidating to mankind” despite its gentle nature. (Footnote: ¹) Because of ill – treatment as a puppy, Hector was wary of strangers. This manifested itself in a “…tendency to approach them to investigate and occasionally bark. Such an approach would, invariably, of course, to a human being, present itself as an aggressive behaviour by the dog even though it was not intended by the dog as such”. (Footnote: ²) But the judge also found that Hector himself was “the most gentle of creatures” and that Great Danes in general are not aggressive towards human beings. (Footnote: ³) Importantly, the judge found that Hector had no tendency to jump up at other people. (Footnote: ⁴)

Mr Whippey had owned Hector for about 18 months and during that time he had exercised him in this park area by the river. On 23 June 2004 Mr Whippey took both Hector and his other dog, a German Shepherd to the park to have some exercise. The judge found that the park was an open space on which few people or dogs were encountered. Over time Mr Whippey had seen only a handful of individuals there. (Footnote: ⁵) The judge recited that 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. That was, as Mr Whippey stated in evidence and I think that the judge found, because Hector had a tendency to run up to people and bark in such a way as could frighten them. (Footnote: ⁶) Therefore, if Mr Whippey noticed anyone in the vicinity, Hector would remain leashed. (Footnote: ⁷) Mr Whippey’s evidence was that on this occasion he had checked to see if anybody was about, and having been satisfied that there was not, he took the lead off both dogs, who then disappeared from Mr Whippey’s view for a period of time. (Footnote: ⁸)

At the trial there was a dispute between Mr Whippey and Mr Jones as to the precise way Hector had behaved and how Mr Jones had reacted when they encountered one another. The judge decided that he preferred the evidence of Mr Jones on this issue. The judge therefore found that Hector appeared from behind a bush whilst Mr Jones was running along the footpath by the river and that the dog knocked into the area of Mr Jones’ right shoulder. That caused him to lose his balance, to jump over a low metal link chain on the river side of the footpath and to fall or slip down the sloping bank to the area by the river side. In so doing he broke his ankle. (Footnote: ⁹) The judge also said that Mr Jones struck him “…as many of us are, as someone who is quite intimidated by large dogs.”. (Footnote: ¹⁰)

The judge also found that Mr Whippey recognised that a dog like Hector is frightening to people and that “…if such a dog approaches…to about ten yards and perhaps closer, such an approach can cause panic and distress in those whom the dog approaches, even if it is stationary. After all the human being does not know what is going to happen next”. (Footnote: ¹¹)

For the purposes of this appeal the key paragraph of the judgment is paragraph 17. That states:

“The responsible carer must ensure, and take reasonable care to ensure, that a dog does not put people in a position where they might reasonably foreseeably suffer some sort of injury. On this occasion alone, in my view, the defendant did not fulfil that duty. When counsel for [Mr Whippey] described it as a level of perfection, I would simply say it is responsible and properly responsible to do this, and he should not have let the dog off the lease without either checking more carefully that somebody was not there or alternatively bearing in mind the possibility that someone might arrive. In the end, that momentary decision to let the dog off the lead, in circumstances that were not safe, was directly causative of this injury on either version”.

The judge does not make an express finding that Mr Whippey should have seen that Mr Jones was, in fact, running nearby along the footpath at the time that Hector was let off the lead. However, I infer from the terms of paragraph 17 of the judgment that this is what the judge concluded.

Mr Giles Mooney, who appeared for Mr Whippey, argued that the judge erred in finding that Mr Whippey had been negligent. He emphasised that there was unambiguous evidence that although Hector would go up to within five or ten feet of people and bark, he would never actually physically run up to someone and touch them. Mr Whippey had said, in cross examination, that because of this he would not foresee “harm befalling a member of the public if [Hector] was running free”. Therefore, the judge’s approach to the legal test in paragraph 17 of the judgment was wrong, because Mr Whippey, acting as a reasonable dog handler, could not have anticipated that this type of injury would have occurred if Hector had encountered a runner.

Mr Michael Bowerman, for Mr Jones, accepted that there was no evidence that Hector had ever jumped up at anyone as the judge found had occurred on this encounter. 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.

If a person A is to be held liable to B in negligence for personal injury, generally speaking the judge has to determine four principal matters in favour of B. The first is that A owed B a duty of care. Secondly, the judge must find that A acted negligently with regard to the relevant acts or omissions. Thirdly, the judge must hold that those negligent acts or omissions caused the personal injury to B of which he complains. Lastly, the judge must find that the injury was not so unforeseeable as to be too remote to be recoverable, although the extent of the personal injury suffered need not itself be reasonably foreseeable.

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. It is also clear from the judge’s findings that the encounter between Hector and Mr Jones directly caused the injuries that Mr Jones suffered and, obviously, those injuries were not too remote to be recoverable as a matter of law. So the only issue on which there can be argument is whether the judge was correct to conclude that Mr Whippey’s conduct in handling Hector that day fell below the standard to be expected of a reasonable handler of Hector in the circumstances of that afternoon.

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. He found that, as a result, in the circumstances existing that afternoon, Mr Whippey had, on that one occasion, fallen below the standard to be expected of a reasonable handler of Hector.

The only one part of the judgment that can be attacked in this court is, I think, the statement of law in the first sentence of paragraph 17 of the judgment. The judge there set out the test for the standard of care to be expected of a reasonable “carer” of a dog with the characteristics of Hector in the circumstances in which Mr Whippey found himself that afternoon. The judge said: “….the responsible carer must ensure, and take reasonable care to ensure, that a dog does not put people in a position where they might reasonably foreseeably suffer some sort of injury”.

Did the judge there correctly state the legal test? The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “reasonable behaviour”. Before holding that a person’s standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the defendant (ie. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it.

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. In Donoghue v Stevenson (Footnote: ¹²), Lord Atkin stated (Footnote: ¹³) the standard of care that a person must adopt is: “…[to] take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. I would emphasise the word “likely”. In Bolton v Stone (Footnote: ¹⁴) (the case of the cricket ball that was hit out of the ground and injured a passer by), Lord Porter elaborated Lord Atkin’s statement by saying: (Footnote: ¹⁵) “…it is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must be also such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it”. In the same case, Lord Normand referred to statements of various of their Lordships in Glasgow Corporation v Muir (Footnote: ¹⁶) concerning the proper test to define the standard of care that must be adopted by the reasonable man. Lord Normand agreed with a statement of Lord Clauson in the Glasgow Corporation case (Footnote: ¹⁷) that the test is whether the person owing the duty of care “had in contemplation that, unless some further precautions were taken, such an unfortunate occurrence as that which in fact took place might well be expected”.

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. The judge did not place sufficient emphasis on the need to establish that there was such a probability of physical injury occurring to another park user, such as Mr Jones, by Hector making physical contact with him as he did, that Mr Whippey, acting as a reasonable dog handler in the circumstances, ought to have anticipated that when deciding to let Hector off the lead.

In my opinion, had the judge posed the correct question, he could only have concluded, on the facts found and on the unchallenged evidence of Mr Whippey, that a reasonable man in Mr Whippey’s position would not anticipate that physical injury to another adult park user such as Mr Jones would be caused by Hector physically contacting him. As already noted, the judge had found expressly that Hector had no tendency to jump up at other people; at the most he stopped and barked at people some five or ten feet away. There was no reason why Mr Whippey, as a reasonable dog handler in the park, should therefore have anticipated that if Hector was let off the lead when some other adult was about, physical harm to that adult would result from Hector bounding up to him and contacting him.

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 first matter that Mr Jones had to prove under section 2(2)(a) is that “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”. The judge held (Footnote: ¹⁸) that Mr Jones failed to prove that the “damage” that he has suffered, ie. a personal injury resulting from physical contact with Hector,

“…was of a type which the animal was likely to cause. It would certainly be a possibility, as I have said already in relation to my assessment of the facts of the claim under the heading of negligence, but I do not find it is a type of injury the dog was likely to cause”.

The judge’s finding and his statement that this contrasts with his conclusion that the injury Mr Jones suffered was a “possibility”, as opposed to being likely, makes clear the basis on which the judge decided that Mr Whippey had been negligent. In my opinion it demonstrates that the judge did not apply the correct legal test.

For those reasons, I would allow the appeal.

I agree.

I also agree.