Dogs have a spe­cial place in the law

Jamaica Gleaner - - LAWS OF EVE - Sherry Ann McGre­gor is a part­ner and me­di­a­tor in the firm of Nunes Sc­hole­field DeLeon & Co. Please send questions and com­ments to law­sofeve@gmail.com or life­style@glean­erjm.com.

IN READ v J. Lyons & Co. Ltd. [1947] AC 156, Lord Si­monds said (in re­la­tion to an­i­mals and the law), “.... beasts have trav­elled in a com­part­ment of their own”. This is cer­tainly true for dogs, who have an act ded­i­cated to them. From The Mod­ern Law of An­i­mals, 1972, the learned judge in the case of Seach­well v Len­non and an­other Suit No. C.L. 1999/S191 (Judg­ment de­liv­ered on March 5, 2004) ex­plored the ra­tio­nale for the ex­is­tence of a spe­cial act for dogs and quoted the fol­low­ing ex­tract:

“. . . broadly speak­ing, dogs are priv­i­leged to roam and that, in or­di­nary cir­cum­stances, the owner of a dog does not act un­rea­son­ably to­wards oth­ers in per­mit­ting it to do so. No like priv­i­lege is con­ceded to any other an­i­mal which is likely as a dog to in­flict se­ri­ous in­jury. The po­si­tion of a dog is spe­cial; and this war­rants the im­po­si­tion of strict li­a­bil­ity in re­spect of them.”

STRICT LI­A­BIL­ITY

Strict li­a­bil­ity is pro­vided for in Sec­tion 2 of The Dogs (Li­a­bil­ity for In­juries By) Act:

The owner of ev­ery dog shall be li­able in dam­ages for in­jury done to any per­son, or any cat­tle or sheep by his dog, and it shall not be nec­es­sary for the party seek­ing such dam­ages to show a pre­vi­ous mis­chievous propen­sity in such dog, or the owner’s knowl­edge of such pre­vi­ous propen­sity or that the in­jury was at­trib­ut­able to ne­glect on the part of such owner. Such dam­ages shall be re­cov­er­able in any court of com­pe­tent ju­ris­dic­tion by the per­son in­jured, or by the owner of such cat­tle or sheep killed or in­jured.

When in­ter­preted, this sec­tion means that the owner of a dog may be li­able for the dam­age and loss caused by his dog even if he is not at fault. (An ex­am­ple of a strict li­a­bil­ity of­fence in an­other area of the law is driv­ing with­out in­surance).

Un­der the act, the ‘owner’ of that dog is broadly de­fined to mean that the oc­cu­pier of premises in which a dog re­sides could be deemed to be that dog’s owner un­less that oc­cu­pier can prove that he was not the owner of the dog.

The fact that there is strict li­a­bil­ity for dam­age or loss caused by a dog does not mean that a claim to re­cover dam­ages must suc­ceed, and the Search­well case in which a tenant of a flat was at­tacked and in­jured by the 24 dogs owned by her land­lord and land­lady makes that point.

The in­ci­dent oc­curred a mere three days af­ter Search­well started to live at the premises, and while she was at­tempt­ing to wash her laun­dry. In dis­miss­ing the claim, the learned judge pro­vided some use­ful in­sight about dog-bite claims:

1. The act does not im­pose ab­so­lute li­a­bil­ity, so de­fences such as tres­pass, neg­li­gence, and con­trib­u­tory neg­li­gence can still be raised in the de­fence of the claim. (See Wil­son v Sil­vera (1959) 2 W.I.R. 40.

2. The learned judge ac­cepted that the tenant was told to ex­er­cise cau­tion in the use of the prop­erty and to wait to be es­corted by the land­lord and land­lady while en­ter­ing or leav­ing un­til the dogs be­came fa­mil­iar with her. For that rea­son, by en­ter­ing the wash area with­out an es­cort, Search­well was a tres­passer in that area at that time.

3. By agree­ing to live on a prop­erty with dogs, the tenant did not re­duce the po­ten­tial li­a­bil­ity of the own­ers in re­la­tion to the dogs.

4. Search­well dis­obeyed the ex­press in­struc­tions of the own­ers not to go to the wash area un­escorted and, by do­ing so af­ter only three days on the premises, she was found to have been neg­li­gent.

5. De­spite the ex­is­tence of the act, the owner of a dog may be li­able at com­mon law for neg­li­gence or un­der statute for em­ployer’s or oc­cu­pier’s li­a­bil­ity; but that did not change the out­come for Search­well.

It is likely that dogs will re­tain their priv­i­leged po­si­tion to roam, so their own­ers are all likely to carry the spe­cial bur­den of be­ing li­able for in­juries causes by them with­out prove of fault.

MCGRE­GOR

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