England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EPSOM COUNTY COURT
(His Honour Judge Hull QC)

		Royal Courts of Justice Strand London WC2 Friday, 1st February 2002

1. LORD JUSTICE POTTER: This is a renewed application for permission to appeal by the defendant, a dog owner, from the judgment of His Honour Judge Hull on 21st November 2001, holding him liable for damages in negligence caused to the plaintiff early one morning when both were exercising their dogs in a large open field in Redhill. The claimant said that the defendant's dog, an adult German Shepherd, which by his own admission was boisterous and inclined to jump up at people, did just that when off its lead in the field, at a time when the claimant had her back to the field and no reason whatever to anticipate such an unexpected event.
2. It is easiest to recount the relevant evidence by quoting from what was a succinct but thorough judgment on the part of the judge. In it he accepted the claimant's version of events at the expense of the defendant who denied it in certain key respects. In particular he denied her account of the accident, on the basis that he said he had thrown a ball which landed near the claimant and that his dog, having chased after it and been recalled by him, skidded on wet grass and simply bumped into the defendant's leg in a manner which could not reasonably have been anticipated by him. Reading from the key passages of the judgment so as to highlight the essential findings, it read as follows:

"The defendant, Mr. Howell, had taken his dog, as he often did, to exercise the dog on a playing field near the hospital, in Redhill. It was 6.30 in the morning. ...

Mrs Rout had gone to the playing field for the same purpose. She wanted to exercise her dog too, which is a Staffordshire terrier. She had the terrier on the lead, as she always apparently does. ...

She had just come into the field through one of the many gaps in the boskiness which surrounds the field on one side, .... As she came into the field she was able to see, a very considerable distance away, perhaps two hundred yards away, right over by the goal posts which one can see in the upper of the photographs, a person who was in fact Mr Howell. She could also see well enough to see that he had a German Shepherd dog with him. She paid no further attention to them. Her dog, of course, was on a lead and there was no particular reason to expect any difficulty with the dog that she could see, apparently with its owner up by the goal posts.

Her dog wished to relieve nature by the hedge there, and so she turned her back on the field, and that was really all she did before the occurrence which followed. ...

She says: 'Suddenly, there was an almighty bang on my left shoulder. I went down on my right side. I had had no warning at all, and', she said, 'it was this Alsatian.' She said it was not a case of him sliding into her legs or anything like that... Its front paws presumably, had come banging into her shoulder, it was hard enough to leave a bruise which developed later, quite a large bruise over her shoulder and her arm, and knock her right over on her right side, the dog having landed on her left shoulder. ...

She said: 'I was still holding onto the lead of my dog. I couldn't get up. I was on the ground and this German Shepherd dog was standing over me. She didn't bite me or anything like that, just standing; she was making a rumbling noise in her throat', which I suppose ... might be an indication of a friendly and playful dog who is enjoying a romp, or hoping to enjoy a romp ...

Mr Howell actually got hold of his German Shepherd. Then he got Suko by the fur on her neck and pulled her away.' Then she says: 'Mr Howell gave me a hand and lifted me up and he said he was very sorry. He said the dog had done that to him several times and knocked him over.' ..."

3. She said that after receiving treatment in hospital:

"She went with her son to the defendant's home ... She rang the bell. She said that Suko came bounding to the glass front door of the house and jumped up against the glass doors; she could see this inside ... Mr Howell came to the door. He pushed the dog into a room before he opened the door, then he opened the door and, says Mrs Rout, she introduced herself. ...

Mr Howell was very polite, apparently, and he referred to his dog. Again he said: 'She is very boisterous and she has knocked me over a couple of times.'"

4. She was challenged as to the essentials of her story, the behaviour of the dog on both occasions, and the admissions of Mr Howell that the dog was boisterous and had knocked him over on previous occasions. So far as the visit to his house was concerned, her account was supported by her son who had accompanied her on that visit.
5. The judge observed that the account given by Mr. Howell was very different. I now resume quoting from the judgment:

"He said when he arrived there was nobody in the field. Then he said: 'It was in June; that is my recollection. I threw the ball which I had for the dog to follow. At that stage there was no-one in the field.' But then he said: 'I threw the ball in the general direction of the trees and just at that moment Mrs Rout came into the field.' So there is a difference.

'Her dog started to bark', another difference. 'It was a small terrier. It appeared to be barking at Suko. I was twenty or thirty yards only from Mrs Rout. The ball had gone across in front of the direction that Mrs Rout was facing. It landed about five feet in front of her. She ought to have seen the ball. The ball rolled in front of her.' In other words, so far from having her back to Mr Howell and his dog, she was facing towards them and should have seen all that happened. 'Suko', he said, 'was running after the ball and was distracted by Mrs Rout's dog and started to run towards Mrs Rout. I called to her 'come' but, says Mr Howell, 'the dog did not immediately react. I think I had to say 'come' again and then at that point her head came up; but within a second she had slid into Mrs Rout's shins. Her legs slipped on wet grass. ... I said nothing about Suko's previous behaviour. I did not say that Suko had knocked me over on a previous occasion or jumped up or made me fall over."

6. Later in the judgment the judge said:

"I have come to the conclusion that I can accept and must accept the evidence of Mrs Rout and of Mr Rout junior concerning what he heard on the 11th. ... I think Mr Howell... did say: 'The dog is boisterous, the dog jumps up, the dog knocks you over from time to time;she has done it to me.' I think that was said. I am satisfied by the evidence that it was said, that the dog had done that a number of times and I am satisfied also, from Mrs Rout's evidence and that of her son, that that was said again on the 11th November.

The dog weighed, apparently, thirty-two kilograms, not surprisingly; German Shepherds are large dogs. That, in plain English, is seventy pounds or so. ... If that dog arrives at top speed weighing seventy pounds, it would knock over a stronger person than Mrs Rout, one thinks, and a heavier person.

[Mr Howell] says: 'Nobody else was in sight and I threw the ball over, and just at that point this lady appeared', from behind the bushes, or something of that sort.

That, of course, is contrary to the evidence of Mrs Rout.

Mrs Rout came into the field with her dog and plainly saw, across perhaps two hundred yards, Mr Howell with his German Shepherd dog. She was able to see that. If he had been throwing the ball then she would undoubtedly, I think, or certainly, on the balance of probability, have seen that, and she did not. I think what happened was that in fact Mrs Rout was indeed visible at all material times to Mr Howell.

Mr Howell knew perfectly well, on the version of the facts which I prefer, that his dog was a boisterous dog who liked to jump up on people. I am not saying that that was a dog which had to be kept on a lead at all times, but quite clearly, to throw a ball across near to another person with a dog, a dog whom he could probably see as well, and indeed, did see as soon as he saw her, to throw a ball close like that seems to me in the highest degree careless.

If he had paused for one moment, he would have said to himself: 'If I throw this ball across towards this lady who has just appeared with her dog, it is likely to lead to some sort of untoward incident, whether with her dog or with her. It is not a sensible thing to do.' ...

Having to choose, as I do, I choose Mrs Rout's version, supported as she is by her son, in part, of what was said. I think it is quite clear that in the circumstances the defendant was negligent to throw the ball close to Mrs Rout [and] to have his dog off the lead. ... He should have made sure they were in a safe and open place, well away from anybody else, if he was going to exercise this large and boisterous young dog with it off the lead. ...

It would be particularly incumbent with a young dog like this, known to be boisterous, known to jump up against people and perhaps knock them down, it was incumbent on Mr Howell to use the utmost caution. He didn't. He did a number of things which I have criticised."

7. It will be seen from all I have quoted, as the judge himself stated when refusing leave to appeal, that he dealt with the matter as one of fact, finding foreseeability on the basis of the character and disposition of the dog to jump up, a matter well known to the defendant.
8. The grounds of appeal read as follows:

"1. The judge made a finding that the appellant was negligent because he threw a ball for his dog close to where the respondent was standing. This case had not been pleaded against the appellant, had not been put to him in cross examination and was not mentioned by either the respondent's or the appellant's counsel in their submissions, nor by the judge in the course of submissions. The appellant therefore had no opportunity to give evidence or make submissions in relation to the ground on which liability was founded.

2. There was no evidence on which the judge could reasonably come to the conclusion that the appellant threw a ball for his dog close to the respondent.

3. The judge erred in law in finding that the appellant was negligent. He imposed too high a standard of care on a dog owner in all the circumstances."

9. These grounds seem to me to be without merit. As far as ground 2 is concerned, it is simply wrong. The evidence that the appellant threw the ball for his dog very close to the claimant came from his mouth and formed part of his defence. I have already quoted passages from the judgment which dealt with that aspect. It was not part of the claimant's pleaded case, because she had never seen the ball and was content to proceed on the basis of her evidence, which the judge believed, coupled with the proposition that to exercise this type of dog off the lead, near to a stranger, was itself sufficient to prove negligence. Her pleading in the particulars of claim plainly covered that. It did not include any specific allegation about a ball because the claimant had never seen it and had no idea it was being suggested that there was one. Nor, when the defence was pleaded, did the defence refer to the use of a ball. It first appeared in the witness statement of the defendant, recited as part of the history, in which it was afforded no prominence, it being stated that the defendant's dog ran over towards the claimant, attracted by the barking of the dog.
10. Only in his evidence did it become apparent that the defendant was saying that the ball had been thrown from what must have been close nearby and had landed only about five feet in front of the claimant. This caused the judge to consider the defendant's evidence on the basis advanced by him. To suggest that it should have been anticipated and pleaded, and to complain that the judge considered the matter on the basis of the defendant's own version of events, seems to me wholly unrealistic. It is simply wrong to say, as has been submitted on this application, that there was no evidence on which to conclude that the claimant was visible to the defendant when the defendant threw the ball. Since the claimant, before she turned her back, had been able to see the defendant, she, too, must have been visible to him. It is also apparent that she must have been at least no further away than the range that the defendant can throw.
11. Underlying the argument on this appeal is that, when the defendant's counsel applied for leave to appeal, the judge said:

"The primary case which I accept is that of the claimant; no ball, no throwing, but I also gave a judgment which was based on the hypothesis, which I did not accept, that your client had thrown the ball so that it landed five feet in front of the lady. That is what he said himself."

12. It is said that the judge was not entitled to make a finding on the basis of a hypothesis which he had in fact rejected. It is argued that his judgment contains no other finding of negligence other than the throwing of the ball. I do not find substance in that assertion. As I said when refusing leave on paper, on the evidence of the claimant there was an unexplained jumping up by a large dog being exercised off its lead in a field close to another person, coupled with a subsequent admission that the dog was known to behave in just the fashion that it had. In my view, that is sufficient to establish a prima facie case of negligence, absent proper explanation from the defence. The only explanation advanced was one which the judge held, taken at face value as he treated it, constituted negligence. If, as was in fact the case, he did not believe the defendant's story, it could not improve his position. I do not think that there is any prospect of persuading a court otherwise. In the circumstances this application is refused.
Order: Application refused.