I find dogs intimidating and accordingly would most probably have suffered the same fate – a serious personal injury – as the claimant in the case of Whippey v Jones which was decided recently by the Court of Appeal. Mr Jones went out for run whilst on a business trip to Leeds. He was on a path in a public park when he was approached by a Great Dane called Hector. Hector was off his leash, as was the German Shepherd his owner was walking at the same time. Mr Whippey said he only let the dogs of the leash if there was nobody about and he had not seen Mr Jones.
The fully grown Great Dane approached Mr Jones - “The judge therefore found that Hector appeared from behind a bush whilst Mr Jones was running along the footpath by the river and that the dog knocked into the area of Mr Jones’ right shoulder. That caused him to lose his balance, to jump over a low metal link chain on the river side of the footpath and to fall or slip down the sloping bank to the area by the river side. In so doing he broke his ankle.[9] The judge also said that Mr Jones struck him “…as many of us are, as someone who is quite intimidated by large dogs.”
The claimant won at first instance but this decision was overturned on appeal. At first instance there was no liability under the Animals Act 1971 but the defendant was liable in negligence. On appeal Lord Justice Aikens held
The judge did not place sufficient emphasis on the need to establish that there was such a probability of physical injury occurring to another park user, such as Mr Jones, by Hector making physical contact with him as he did, that Mr Whippey, acting as a reasonable dog handler in the circumstances, ought to have anticipated that when deciding to let Hector off the lead.
In my opinion, had the judge posed the correct question, he could only have concluded, on the facts found and on the unchallenged evidence of Mr Whippey, that a reasonable man in Mr Whippey’s position would not anticipate that physical injury to another adult park user such as Mr Jones would be caused by Hector physically contacting him. As already noted, the judge had found expressly that Hector had no tendency to jump up at other people; at the most he stopped and barked at people some five or ten feet away. There was no reason why Mr Whippey, as a reasonable dog handler in the park, should therefore have anticipated that if Hector was let off the lead when some other adult was about, physical harm to that adult would result from Hector bounding up to him and contacting him.
The appellant was instructed by the Equine & Livestock Insurance Co and the respondent by Shaw & Co Solicitors.
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