Sat | Oct 21, 2017

Laws of Eve | Dogs have a special place in the law

Published:Monday | October 31, 2016 | 12:00 AM

In Read v. J. Lyons & Co. Ltd. [1947] A.C. 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.

• 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.