Jones v Whippey [2009] EWCA Civ 452, [2009] All ER (D) 91 (Apr)
Court of Appeal, Civil Division, Waller, Rimer and Aikens LJJ, 8 April 2009
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 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 to anticipate it.
Michael Bowerman (instructed by Shaw & Co) for the claimant. Giles Mooney (instructed by Equine & Livestock Insurance Co Ltd) for the defendant.
In June 2004, the claimant was running along a footpath on the side of a river in Leeds. He was an experienced runner.
On the footpath he had an encounter with a fully grown two-year-old Great Dane called Hector, who was owned by the defendant. According to the judge’s findings, Hector weighed over 12 stone. Due to ill-treatment as a puppy, he was wary of strangers and would tend to approach them to investigate and occasionally bark. He was, however, the “most gentle” of creatures and had no tendency to jump up at people.
When encountering the claimant, however, Hector knocked into the claimant’s shoulder. As a result the claimant fell down a slope and broke his ankle. He brought an action against the defendant, contending, inter alia, that the defendant had been negligent in the way he had handled Hector that afternoon.
The defendant argued that he would not have let Hector off the lead had he thought anyone else was present. The judge ruled in favour of the claimant and the defendant appealed.
Aikens J:
The only issue on appeal was whether the judge was correct to conclude that the defendant’s conduct in handling Hector that day fell below the standard to be expected of a reasonable handler in the circumstances of that afternoon.
The effect of the judgment was that the judge found that the defendant had failed to take sufficient care to ensure that there were no other people about before he let Hector off the lead.
The only part of the judgment that could be attacked was 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.
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.”
The question of whether a person had acted negligently was 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 had fallen below the objective standard expected and so finding that he acted negligently, the court had to be satisfied that a reasonable person in the position of the defendant would contemplate that injury was likely to follow from his acts or omissions. Nor was the remote possibility of injury enough; there had to be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it.
That was clear from classic statements of the law on the standard of care that was expected of people in circumstances where they owed a duty of care to others, in cases such as Donoghue (or McAlister) v Stevenson [1932] All ER Rep 1; Bolton v Stone [1951] 1 All ER 1078 and Glasgow Corpn v Muir [1943] 2 All ER 44.
His lordship held that the test the judge applied did 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 the claimant, by Hector making physical contact with him as he did, that the defendant, acting as a reasonable dog handler in the circumstances, ought to have anticipated that when deciding to let Hector off the lead.
Had the judge posed the correct question, he could only have concluded, on the facts found and on the unchallenged evidence of the defendant, that a reasonable man in the defendant’s position would not anticipate that physical injury to another adult park user such as the claimant would be caused by Hector physically contacting him.
The judge had found expressly that Hector had no tendency to jump up at other people; at the most he stopped and barked. There was no reason why the defendant, 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.
The appeal would therefore be allowed. Rimer and Waller LJJ agreed.
