Recently Arnold has commented to locals that two of his sheep have been savaged to death and that he blames Dave’s dogs. He has threatened that, if Dave does not control them properly in future, he will feel free to shoot them.
Some residents in the area have been reported in the local press as sighting a very large black cat roaming the countryside – supposedly a far bigger animal than any domestic cat – but no-one else has seen concrete proof of the existence of such an animal.
Dave and Gill also rent out two dogs – one a Shih Tzu and the other a Toza – as status animals. There have been problems however. Simba, the Shih Tzu, who had been hired out to a young couple for the weekend, was returned with cuts to her back legs; and Tojo, the Toza, seriously injured a woman in St Stephens shopping centre, Hull, whilst on hire with an eighteen-year-old trainee legal executive.
This paper deals with the two factual scenarios separately by firstly addressing question one and then question two. In question one the paper firstly sets out the issues which arise on the facts and then progress firstly to identify the relevant applicable statute and the case law which flows from the statue. Additionally, the paper draws upon text books and journal articles which build towards a conclusion. Question 2 follows a similar pattern to question 1 and sets out the relevant applicable law and then applies that law with reference to case law to the factual scenario. In both questions 1 and 2 there is a gradual direction towards a conclusion. Additionally, civil law actions available are discussed with reference to case law which may be available to the various parties.
Animal law; dangerous dogs; welfare; cruelty
The facts present that there are two key issues arising from Dave taking the German Shepherds on their country jaunt. Firstly, the fact that he lets them run free, unsupervised which appears to present a real and immediate danger to farmer Barnsley’s sheep. And secondly the fact that Barnsley is threatening to shoot the dogs when there appears to be an alleged wild cat that may be the real cause of the death of Barnsley’s sheep. The most relevant statute to the case facts is the Dangerous Dogs Act 1991 (DDA) which sets out the framework within which dangerous dogs can be dealt with when they become dangerous. (Bird 2007). The key fact here is that Dave does not supervise the dogs whilst they are running through the fields for approximately twenty minutes. Additionally, no one can in fact rule out whether the cat that is alleged in the area is a myth or something created to deflect the attention away from the German Shepherds. Section 3 of the DDA 1991 creates the offence for an owner of a dog dangerously out of control in a public place or in a non-public place where it is not allowed to be. (Radford 2001; 356-357) In determining whether the courts would find the German Shepherds as being a dangerous dog it will investigate the dog’s characteristics and demeanour. (R v Knightsbridge Crown Council, ex parte Dunne; Brook v DPP (1994)).
It is likely if the German Shepherds are found to be killing sheep they will fall within the scope of the DDA 1991 as being a dangerous dog. The next hurdle to consider is whether the fields where the alleged incidents are to have taken place constitute a ‘public place’. The courts have held that a public place as being any ‘street, road or other place to which the public have access’. (DDA 1991 s 10(2) and Fellowes v DPP (1993)). On the basis of the facts it is likely that the courts would consider that the DDA 1991 would apply because the jurisprudence on dogs causing injury to farm animals has been held to make the owners liable for compensation for the damage caused by the dog. (Pickering v Marsh (1874)). Additionally, the court has two options in deciding how best to deal with dogs in these types of circumstances, firstly they can issue an order to the owner directing that they keep full control of the dog or alternatively they can issue a destruction order to have the dog killed. (Briscoe v Shattock (1999)). It is likely that if the courts can be satisfied that Dave can keep the dogs under control when taking them on walks around the fields beside Barsley’s land a destruction order would not be issued but rather a control order would be most likely. (Rafiq v Folkes (1997)).
The key criticism of the DDA 1991 framework for dealing with dangerous dogs has been focused primarily on the interpretations given to the statute by the courts. (Hood 2000; 282-283). Whilst the Act was designed to reduce the public risk of injury from dogs the Act appears to have failed in a number of areas including the fact that the language can be construed so widely it effectively takes every and any dog within the statutory framework. (Klaassen 1996: 94).
Civil liability for the loss or damage to Barnsley’s sheep can be derived from the Animals Act 1971 which makes any keeper of a dog liable for the damage the dog causes to other livestock. Additionally, Mr Barnsley may have two further causes of action in the law of tort against Dave firstly for the trespass to his land and secondly for the economic loss of his sheep. In dealing with the trespass to land a person can commit a trespass to land when they commit any ‘unjustified intrusion onto the claimant’s land’. (Hedley 2008; 179). Mr Barnsley may be able to prove trespass to land by showing there was a wrongful entry onto his land by Dave and his dogs or that there was a trespass by placing objects such as the dogs onto his land. The slightest crossing onto someone else’s property can constitute a trespass (Entick v Carrington (1765)) or alternatively where someone abuses their right of entry as a lawful visitor onto a property will be sufficient for a trespass. (Hickman v Maisey (1900)). In relating the law back to the question, it is likely that a trespass may be established by Mr Barnsley arguing that Dave has exceeded any potential right of entry onto to his land by allowing the dogs to roam his land freely. On the basis of the facts it is not likely that Dave could avail of any of the defences for trespass. The most appropriate remedy which Mr Barnsley should seek under trespass is ‘mesne profit’ which would allow him to claim compensation for the damages caused by the trespass by the dogs. (Inverugie Investments Ltd v Hackett (1995)).
Alternatively, Mr Barnsley may also take an action for his economic loss caused to his sheep. The law on economic loss has focused on whether the loss has been incurred as a result of physical damage. On the basis of Sparton Steel v Martin (1972) it would be likely that Mr Barnsley would be able to establish a claim for economic loss for the value of the sheep and any damages which flow from the actual loss of the sheep. Mr Barnsley would have to establish the three stage test of negligence including, duty of care, breach of duty and a causal link between the act of Dave and the resulting damage. (Donoghue v Stevenson (1932) and Caparo Industries plc v Dickman (1990)). It is likely that the courts would find that Dave upon entering Mr Barnsley’s land he would owe him a duty of care so as not to cause any damage to his property as it could be reasonably contemplated by Dave that any of his actions may affect Mr Barnsley. The courts may consider that Dave’s actions may have breached that duty because he failed to exercise any reasonable care by keeping his dogs under control. (Bolton v Stone (1951)). However, one element that may be missing in order to establish economic loss is the causation element, in that the factual causation is placed in doubt by the existence of the wild cat. The legal causation requires an assessment of the ‘but for’ test in that whether the damage would have occurred but for the fact of the breach and it is unclear whether the dogs in fact caused the damage or the wild cat. Mr Barnsley would have to prove this element beyond reasonable doubt. Additionally, he would need to establish that there is a remoteness of damage between the loss sustained and the damage caused. This element of the legal causation may be proved because it is evident that Dave is aware of a potential risk of his dogs causing the type of injury sustained by the sheep. However, this case would turn upon whether dogs are the actual cause of the damage.
One final consideration should be given to any potential causes of actions which Dave may be able to take against Mr Barnsley. As Mr Barnsley has told a number of locals in the public that Dave’s dog has savaged his animals, Dave may have a cause of action in the tort of defamation. Defamation of character can take any form if the expression used is derogatory. (Monson v Tussauds (1894)). In deciding whether the statement made by Mr Barnsley would be defamatory the court will direct a jury to decide its content as a question of fact. (Alexander v Arts Council of Wales (2001)). The standard required by the law on defamation is that the statement made must be more than something that would annoy or embarrass Dave and would lower what the reasonable man would think of Dave. (Tournier v National Provincial Bank (1924)). Therefore it would be difficult on the basis of the facts as they are presented to determine whether the statement made by Mr Barnsley would lower the reasonable man’s opinion of Dave. This would ultimately be decided by a jury as a question of fact. (Norman v Future Publishing (1999)).
In summary conclusion, it is likely from a legal perspective the DDA 1991 will apply here which the courts will exercise its discretion either to issue a control order on Dave to exercise control over the dogs or if the court believed the circumstances necessitated it they would order the destruction of the dogs. As regards the farmer threatening to shoot the dogs, if the dogs pose a genuine risk and the farmer has displayed warning notices of his intention to shoot any dogs interfering with his sheep he may be allowed to shoot the German Shepherds if he catches them causing injury to his sheep. (Kelbie 2009). The additional civil law actions available to Mr Barnsley include suing for trespass to his land which may allow him to sue for the damages caused by the trespass and he may also sue for the economic loss of his stock which is a result of the damage caused by the dogs. Finally, Dave may have an action in defamation against Mr Barnsley if a jury would consider the statements as being capable of lowering his reputation by the standards of the reasonable person.
There are two issues of concern which are presented by the facts, firstly the fact that Simba has been returned with cuts to her back leg and secondly the fact that Tojo has allegedly seriously injured a women in St. Stephen’s Shopping Centre. In dealing with the first issue it is important to establish whether any cruelty laws may apply. The definition of cruelty is found in the Protection of Animals Act 1911 (PAA) which allows cruelty to be established in a number of ways. Section 1(1)(a) of the Act provides for both the owner of the dog and the person in charge of the dog who ‘cruelly beat, kick, ill-treat, override, over-drive, overload, torture, infuriate, or terrify any animal’. (s1(1)(a) PAA). The definition is therefore wide enough to apply to both the Kennel owners and to the young couple who were actually in charge of the dog at the time the dog sustained the cuts. The second limb of s 1(1)(a) is concerned with whether the owner of the person in charge of the dog ‘wantonly or unreasonably failed to do or omit to do any act causing unnecessary suffering to any animal’. (Brooman and Legge 1997; 249-255). The key question here is whether the cuts will amount to cruelty, in determining the definition of cruelty the courts have held that cruelty is the ‘unnecessary abuse of any animal’. (Budge v Parson (1863); 368 and Barnard v Evans (1925)). The second limb allows prosecution for a failure to provide proper care and attention of an animal. (Radford 2001; 210-212). Arising out the PAA 1911 there are two distinct liabilities for cruelty, firstly against the Kennel owners Dave and Gill for renting the dog to a couple and secondly the couple who was in charge of the dogs.
In determining the Dave and Gill’s liability it would be contingent upon the objective test whether they could have reasonably foreseen the likelihood of injury of the dogs in renting them to the young couple. (RSPCA v Isaacs (1994) and Hall and Hall v RSPCA (1993). Whether Dave and Gill would be liable would depend on their knowledge of the couple prior to the allowing them take control over the dogs. Importantly under the Animal Welfare Act 2006 (AWA) section 3 makes an owner of a dog regardless of who was actually in control of the dog at the time of the abuse. The key issue will be whether Dave and Gill took all reasonable steps to ensure the safety and health of the dog. If it can be established that Dave and Gill recklessly rented the dogs out to anyone then they may be held liable under the AWA 2006. Whether the cuts will amount to an abuse will be determined by the courts in reference to the factual scenario of how the dogs sustained the injury. (Case 2007; 5). Under the AWA 2006 the courts have a wide range of powers to deal with such circumstances. (Favre 2008; 314-315). Dave and Gill’s liability will be dependent upon two factors firstly whether they properly investigated the young couple prior to allowing them control of the dogs and secondly how they have responded to the cuts when it came to their attention. (Waisman et al 2006; 415-430). If they have provided the dog with suitable veterinary care post having actual knowledge this may be sufficient for them to have discharged their duty to the dog. In regards to the young couple, they may be liable for cruelty for not caring or looking after the dog’s need sufficiently. The powers open to the court are disqualification orders from ‘owning, keeping, participating in the keeping controlling or influencing animals to the full flexibility to construct suitable orders to fit the given case before the courts.’ (Ibid).
It is likely on the basis of the facts that the courts in this particular case may find a charge of cruelty against the young couple who rented the dogs as they appear to have been in control of the dogs at the time at which the dogs sustained the cuts. If a charge of cruelty is found it is further likely that the young couple will be disqualified from keeping or having the custody of any dogs in the future. (RSCPA v Chester Crown Court (2006)). It will be unlikely that Dave and Gill will be liable for cruelty unless the courts can find some evidence of prior knowledge about the young couple’s ability to care and look after the dog.
The secondary issue of the dog attacking a person in St. Stephen’s Shopping Centre will take the incident within the operation of the DDA 1991 (discussed above). The DDA 1991 allow for the courts to intervene in circumstances where the dog has exhibited characteristics which are similar to ‘pit bull’ breed and show an aggressive demeanour. It is likely that as the dogs have physically attacked another member of the public, the conduct of the dog will be sufficient to amount to a dog dangerously out of control. (DDA 1991, s3). Additionally, as the incident appears to have taken place in a shopping centre, the second limb of a ‘public place’ can be found on the facts. The court will have two primary options available to them firstly to either issue a control order over the dog or secondly a destruction order. It is entirely within the discretion of the court to decide how it should exercise its discretion, however, as this attack appears to be particularly vicious in nature, it might be argued that the dog should be destroyed.
In summary conclusion, the facts appear to present a case of animal cruelty where one of the dogs have been subjected to unnecessary cruelty sustaining cuts to its leg. It is likely that a case could be established against the young couple and depending on further information against Dave and Gill. Additionally, as one of the dogs have caused injury to another person, it is likely that the courts may order the destruction of that dog.