Today, I turn attention, for the time being, away from the Employment Rights Act and consider an area of liability for animals which I had intended to address two months ago following the vicious attack on a woman and members of her family by a pitbull.
The dangers posed by dogs may be divided into three major categories:
1. There are still a very large numbers of dogs which are allowed to roam the roads, and they from time to time cause injury by attacking people who are on the road riding, walking or going about their business.
2. Dogs also frequently attack and kill or injure livestock.
3. Dogs and other animals sometimes collide with, and cause damage to, vehicles on the public road.
Tame by nature
At common law, dogs had been classified as animals mansuetae naturae, meaning that they were by nature tame and harmless.
The owner of this type of animal was only liable for harm caused by the animal if the particular animal had shown a propensity in the past to do harm of that kind and the other owner or keeper of that animal knew of that propensity to do harm.
Therefore, a plaintiff who was bitten by a dog would have to show that the dog had a tendency to attack humans. He would be able to show this by proving that the dog had bitten someone in the past or had attacked or attempted to bite someone.
The liability of owners of dogs was changed in 1980 when the Animals (Civil Liability) Act came into force.
Sections 8 and 9 of the act are reproduced below:
“8 (1) Subject to Section 9, the owner of a dog is liable for any damage caused by that dog.
(2) In an action under subsection (1), it shall not be necessary for the aggrieved party to prove
(a) a previous mischievous propensity in the dog;
(b) that the owner knew of the dog’s vicious or mischievous propensity; or
(c) that the damage was attributable to neglect on the part of the owner.
9 An owner is not liable under Section 8 if
(a) the damage is due wholly to the fault of the person suffering from it;
(b) the court is satisfied that he took reasonable care to prevent the dog from causing damage; or
(c) in the case of livestock
(i) he proves that at the material time the livestock was trespassing on land in his possession and he in no way caused the dog to attack the livestock, or
(ii) he proves that at the material time the dog was in the custody or control of the person whom he reasonably believed to be a fit and proper person to have such custody or control, or
(iii) he proves that the livestock was killed or injured on the land on to which it had trespassed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier.”
Similar provisions in the Dogs Act of Jamaica have been viewed by the Jamaica Court of Appeal as imposing strict liability.
No defence
Therefore, in the case Brown v Henry (1947) where the plaintiff had instituted proceedings to recover damages for injuries caused by the defendant’s dog,
it was no defence that the dog had been set upon the plaintiff by two small boys as they were walking the public road.
According to the court, the defence of act of a stranger could only succeed if the owner of the dog had done everything he could to prevent third parties from meddling with it.
In other cases where dogs had trespassed onto lands and killed livestock, the court held that it was not necessary to prove that the owner knew that the dogs had this propensity.
Moreover, as far as public places are concerned, Section 12 of the Dogs (Licensing and Control) Act makes it an offence to:
“(a) permit the dog to be:
(i) in any public place unless
it is kept on a lead or lease; or
(ii) in or on any premises without the consent of the owner or occupier of those premises.
Any person who contravenes or fails without reasonable excuse to comply with this section is guilty of an offence and is liable on summary conviction to a fine of $250 or to imprisonment for a term of three months or both.
“Owner” is defined by the act to include “the person who occupies a dwellinghouse, building or other premises or any part thereof at which a dog is accustomed to stay or be kept, unless that person furnishes satisfactory evidence to the contrary and includes a person who has custody or control of a dog”.
“Public place” means a road, street, lane, alley or any place to which the public has access.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael.
Send your email to cnmcc@caribsurf.com
