Today, Frances Quinlisk v Ross Kearney, John Kearney and Bernadette Kearney.
Tort - Dangerous animals - Control of dogs - Owner of dog - Onus on occupier of premises to prove they are not owner of dog - Plaintiff injured by dog - Whether onus of proving not owners of dog discharged - Whether breach of statutory duty - Control of Dogs Act 1986, sections 9, 13 and 21.
High Court (before Mr Justice R Murphy); delivered June 10th, 2004
A plaintiff injured by a stray dog has to prove, on the balance of probabilities, that the defendants permitted it to remain on their premises. There is an onus on the defendants to discharge the presumption that they were the owners of the dog by allowing it to remain on their premises. Where in the instant case, the dog was not under effective control as required by section 9 of the Control of Dogs Act 1986, the defendants were jointly and severally liable for the damages caused by it to the plaintiff pursuant to section 2 of the Act.
The High Court so held in awarding the plaintiff €16,000 in general damages as against the defendants.
Michael Counihan SC, David Kennedy SC and Thomas Teehan BL for the plaintiff; Marcus F. Daly SC and Michael Delaney BL for the defendants.
Mr Justice Murphy said that the plaintiff was attacked by a dog, causing her to fall and suffer an injury to her pelvis. He said that the net issue in the case was whether the dog was in the care, management and/or control of the defendants. The plaintiff relied on the definition of owner in the Control of Dogs Act 1986 which provides that "owner" in relation to a dog includes the occupier of any premises where the dog is kept or permitted to live or remain at any particular time unless such occupier proves to the contrary, the obligation of such owner under section 9 and the liability arising under section 21 of that Act. Section 9(1) of the Act of 1986 provides that "he owner or any other person in charger of a dog shall not permit the dog to be in any place other than the premises of the owner, or the premises of such other person in charge of the dog, or the premises of any other person, with the consent of that person, unless such owner or such other person in charge of the dog accompanies it and keeps it under effectual control."
Section 21(1) of the Act of 1986 provides that "the owner of a dog shall be liable in damages for damages caused in an attack on any person by the dogand it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner's knowledge of such propensity, or to show that such injury or damage was attributable to neglect on the part of the owner."
Mr Justice Murphy said that in addition to the statutory liability, there also remained the common law remedy under the scienter action or in trespass. He said that damages caused in an attack need not involve physical contact, that the word "attack", though not defined in the Act of 1986, had been judicially defined as including an assault which did not, necessarily, involve battery.
In her evidence, the plaintiff said that she lived across the green from the defendants, who were all members of the same family. Describing the attack, she said that she felt a tug on her leg by the dog which was so hard that she lost her balance and fell. She lay on the ground for fifteen minutes in severe pain. She told the court that later she had seen the dog going into the defendant's house. When she asked the second defendant if he owned the dog which was then at his door, he replied that it was his son's, the first defendant. She believed that the dog disappeared after her solicitors wrote a letter to the defendants in November, 2000. Another witness on behalf of the plaintiff testified that the defendant's kept aggressive dogs. The plaintiff's husband testified that the first defendant kept large terriers for hunting badgers.
Under cross-examination, the third defendant said that she and her husband did not own dogs but noticed loose dogs going in and out of her house. She also said that her son, the first defendant, was not living at their house at the time of the incident. The defendants called two further witnesses who testified that they could not remember the defendants keeping dogs in 1999, at the time of the incident and that there were a lot of stray dogs running around the housing estate.
In his decision, Mr Justice Murphy said that presumption of ownership was a radical element in the Act of 1986 which deemed ownership on occupiers of any premises where, not alone the dog was kept but was permitted to live or remain at any particular time. The onus was on the occupier to prove to the contrary. He had to be satisfied, on the balance of probabilities, from the evidence of the second and third defendants that none of the three defendants kept a dog or permitted a dog to live or remain for any particular time in their premises.
The fact that the third defendant did not give evidence in relation to whether or not he was or was not in the family home at the time of the incident was commented upon by Mr Justice Murphy who said that his evidence would have been of help in relation to whether he had a dog or hunted or not.
He also said that the simplest way of rebutting the presumption of ownership would have been for the defendants to reply to the plaintiff's solicitor's letter. Whilst accepting the second and third defendant's evidence that they did not own a dog, Mr Justice Murphy said that ownership of a dog was defined very widely in relation to the occupiers of premises by the definition section of the Act of 1986.
The second defendant's evidence of brushing out dogs indicated the presence of dogs at his premises, whether they were strays or not. If they were strays, then the defendants should have been aware of the risk of liability once they were kept or allowed to remain on their premises. Mr Justice Murphy said that there was provision under section 13 of the Act of 1986 that any person who finds and takes possession of a stray dog is obliged to return the dog to its owner, deliver it to a dog warden or detain the dog and notify the Gardaí. In such a case, the occupier would not be deemed to be the owner until one year had passed.
In the circumstances, Mr Justice Murphy found that the defendants owned the dog in question in that they as occupiers permitted the dog to live or remain at their premises. None of them had proved, on the balance of probabilities that they were not owners of the dogs that had attacked and caused the plaintiff the injuries she suffered. As the dog was not on the premises of the defendants at the time of the incident and was not accompanied by the owner or any person, it was not under effective control as required by section 9 of the Act of 1986. It followed that the defendants were jointly and severally liable for the damage caused pursuant to section 21(1) of the Act.
In assessing general damages at €16,000, Mr Justice Murphy considered the reports of the plaintiff's general practitioner and her orthopaedic surgeon which showed that the plaintiff had a fracture to the pelvis requiring hospitalisation and being on crutches for seven and a half weeks. Special damages in relation to loss of earnings were agreed at €1,600. Accordingly, Mr Justice Murphy made a decree for damages in the sum of €17,600.
Solicitors: Michael Collins & Co. (Borrisokane) for the plaintiff; Michael Houlihan & Partners (Ennis) for the defendant.