Increased criminal sanctions proposed for dangerous dogs but ambiguity over claimants’ rights remains

Posted: 06/08/2013

Much publicity is being given to the recent proposals in relation to criminal liability and penalties for dangerous dogs. However, the law regarding an individual’s entitlement to claim when injured by an animal remains difficult to navigate.

Liability for injury caused by animals is sometimes covered by simple principles of negligence – for example, when an owner or keeper of an animal has acted in a way that clearly presents a risk of injury to others, and that risk has materialised by the animal causing injury. In the case of a ‘dangerous dog’ there is specific legislation but for dogs that would not necessarily be defined as ‘dangerous dogs’ the Animals Act 1971 is the main legislation used in this area.

The Animals Act 1971 provides a distinction between ‘dangerous’ and ‘non dangerous’ species. Where damage is caused by an animal which belongs to a ‘dangerous species’, any person who is a keeper of the animal is liable for the damage in most circumstances, regardless of whether they would be seen to be at fault.

A dangerous species is one which:

• is not commonly domesticated in the British Isles and
• which, when fully grown, unless restrained, is either likely to cause severe damage or is such that any damage which it does cause is likely to be severe.

Liability for injury caused by such an animal is not limited to the obvious type of injury – such as biting – but any injury caused by that animal. Therefore, if an individual is injured by an animal that is deemed to be from a dangerous species, their entitlement to claim against the keeper of that animal is generally straightforward.

In relation to dogs that might be regarded as dangerous – either as an individual or as a breed – if there is a history of aggressive behaviour or the animal is dangerous then the owner is often liable for failing to safeguard members of the public and for failing to control the animal. In this instance there are various pieces of legislation in place regarding ‘dangerous dogs’, such as the Dangerous Dogs Act 1991.

However, the situation regarding an individual animal that causes injury but is not of a dangerous species or breed, and is not generally aggressive, is not so clear cut. This falls back under the Animals Act legislation again, rather than that for ‘dangerous dogs’. The Animals Act states that where damage is caused by an animal that belongs to a ‘non dangerous’ species a keeper of the animal is liable for the damage. Animals within this category include most domestic pets and agricultural animals.

In this instance, in order to prove liability the following needs to be established:

• that the damage is of a kind which the particular animal, unless restrained, either is likely to cause or if caused is likely to be severe
• such likelihood is due to the characteristics of the particular animal not normally found in animals of the same species or not so except at certain times or in certain circumstances
• that those characteristics were known to the keeper.

All three criteria must be shown in order to bring a claim under the act for a ‘non-dangerous’ animal. Given the potentially ambiguous nature of the second criterion and the subjective element of the third criterion, the case law so far has not produced a clear scenario. There has been much debate about what is or is not normal for a particular animal and what a keeper should be aware of in terms of potential characteristics of their animal – and as a result, case law has gone for and against claimants to date.

There are also some defences that an animal owner may raise – these often include suggesting that the animal was provoked or the claimant was trespassing onto the animal owner’s land.

In scenarios therefore where an individual dog attacks someone, whether or not they have a claim against the keeper may end up being very fact specific in terms of the type of dog, the circumstances and the knowledge of the keeper. The introduction of tougher criminal penalties should help to ensure that those with dogs that are inherently dangerous keep them in a manner that avoid putting others at risk.

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