Case No: B3/2008/2829
Neutral Citation Number: [2011] EWCA Civ 906
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
MS RECORDER PHILLIPS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27th July 2011
Before :

LORD JUSTICE STANLEY BURNTON
LORD JUSTICE AIKENS
and
SIR DAVID KEENE
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Between :

	SARA ADDIS, MARCUS ADDIS AND TRACEY PEARCE (as personal representatives of BRAIN ADDIS deceased)	

Appellants	
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	(1) DEBBIE CAMPBELL 		
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	(2) GEORGE LEAMAN	Respondents 	

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David Melville QC (instructed by Goodge Law) for the Appellants
Richard Stead (instructed by LA Marine) for the Respondents 

Hearing date :  14 July 2011
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Judgment
Lord Justice Stanley Burnton : 
Introduction 
1.	This sad case arises out of an accident on 30 March 2007, when Mr Brian Addis fell and sustained serious injuries.  He claimed that he had been knocked over by a dog, Taz, a bull terrier owned by the First Respondent, Mrs Campbell, which the Second Respondent, Mr Leaman, had taken for a walk. He brought proceedings against Mrs Campbell and Mr Leaman, alleging that his accident had been caused by their negligence. Their claim was tried before Ms Recorder Phillips. She dismissed the claim. 
2.	Sadly, both Mr and Mrs Addis have died. This is the appeal of Mr Addis’s personal representatives against the Recorder’s decision.
The circumstances of the accident
3.	Mr and Mrs Addis lived in Rattery in Devon. On the day in question, they had taken their black Labrador dog for a walk. They were accompanied by friends, Mr and Mrs Aldridge. They went to the open ground by the ford over the River Bovey in North Bovey Village, where there is an open space where dogs can be let off the lead.
4.	There were two other dogs there, a black crossbreed and Taz, which Mr Leaman had taken for a walk. The black crossbreed was with Mr and Mrs Hart. All three dogs were off the lead and played in the river.
5.	At the ford there are stepping stones across the river. Mr Leaman, who was aged 86, tried to cross the river. He slipped and fell. Mr and Mrs Hart and Mr Aldridge went to his rescue. They helped lift him up and escorted him back to the slope at the river’s edge. Mr Aldridge and Mrs Hart began to escort Mr Leaman back up the slope with a view to taking him to the Aldridge’s house. It was then that Mr Addis fell and suffered his injuries. An ambulance was called. Either Mr or Mrs Addis told the paramedics that Mr Addis had been knocked over by a dog, referring to Taz. Two days later, Mrs Addis telephoned Mrs Campbell, informing her that there would be a claim for damages resulting from her husband’s accident, and asking whether she had insurance. Mrs Campbell confirmed that Taz was covered by animal liability insurance.
The trial
6.	The trial before the Recorder was on liability only. Mrs Addis, Mr and Mrs Hart and Mrs Campbell gave evidence. Mr Addis was unable to do so. The Aldridges did not give evidence. Mr Leaman provided a witness statement. There was evidence from others who knew Taz who described him as “very docile” and gentle and obedient. A Mr Gardham described him as “gentle, non aggressive and ‘stupid’ in a kind way”. 
7.	The Recorder held that Mrs Addis was wrong in her belief that her husband had been knocked over by Taz. Furthermore, there had been no negligence on the part of the Defendants. She therefore dismissed the claim.
The appeal
8.	Some time later, the Appellants discovered facts that led them to believe that the Recorder should have recused herself. She was a solicitor in private practice. Her practice was confined to acting for insurers in claims for damages for accidents caused by horses, and she had concentrated on that work for over 23 years. During the trial, Mrs Addis had referred in evidence to Mrs Campbell’s confirmation that Taz was insured. Furthermore, the Recorder ran the British Show Jumping Association help line, and lectured on litigation and health and safety law to the British Show Jumping Association and other equine organisations and at seminars arranged by insurers. She had been a member of the Government’s working party on the equine industry set up to consider the reasons for the rise in insurance premiums. She was active in the BSJA, and she had campaigned for the amendment of the Animals Act 1971 to abolish strict liability. She trumpeted the fact that she had won for her insurance clients 9 out of 10 cases brought in negligence and under that Act. None of these matters had been disclosed to the parties by the Recorder.
9.	In these circumstances, the Appellants appealed against the decision of the Recorder on the grounds that there had been an appearance and a real danger of bias. In addition, it was contended that the Recorder’s finding that Taz had not caused Mr Addis’s accident was against the weight of the evidence, and that the evidence demonstrated that the accident had been caused by Mr Leaman’s negligence. 
10.	On these grounds, the Appellants submitted that the Recorder’s decision should be set aside, and judgment entered for them for damages to be assessed, or alternatively a new trial ordered.
11.	For the Respondents, it was submitted that there had been no appearance or risk of bias. The fact that the Recorder had a defendants’ practice did not render her biased, and her other activities related to horses and liability in relation to horses, not dogs. The Recorder had been entitled to make the findings of fact that she did, and had rightly rejected the allegations of negligence.
Discussion
12.	The issue of bias is not straightforward, and it seems to me that this case demonstrates that whenever a judge has any substantial concern as to whether there is an appearance of bias, the best course is to make full disclosure to the parties as early as possible, and if possible before the trial date. However, having heard Mr Melville QC’s submissions, and Mr Stead’s submissions on the issue of negligence, I have concluded that this appeal can be decided on that issue alone, that is that on the undisputed evidence no case of negligence was or could be made out. 
13.	For this purpose, I assume that Taz did indeed, as the Appellants contend, collide with Mr Addis and caused him to fall and to suffer his injuries. The principal source of the Appellants’ difficulty is the agreed expert evidence of Dr Roger Mugford, an expert in the behaviour of dogs. He summarised his conclusions in his report of 22 August 2008 as follows:
My view is that Taz is a well-managed, well socialised dog who would not, under foreseeable circumstances, be threatening or aggressive towards people. 
He did add:
However, his reactions may, in particular circumstances, be boisterous or present handling/management challenges in the presence of particular dogs, especially in a confined space or if restrained on a leash.
At the time of the accident, Taz was not on a leash and was not in a confined space.
14.	Equally relevantly, Dr Mugford said:
Staffordshire Bull Terriers are powerful dogs and Taz himself is able to move at considerable speed …. In collision at that speed with a person, Taz could cause injuries on impact of the sort which are claimed by Mr Addis. However, I did not see any occasion in which Taz was clumsy or misjudged space or distances in relation to his physical environment, people or dogs. He seems to be a nimble, well-coordinated animal.
15.	Mrs Campbell is the manageress of a public house, the Ring of Bells. Mr Leaman was a customer. He used to take Taz for a walk about twice a week, and had done so for some 18 months, without incident, before the accident. 
16.	There was and is no evidence that on any previous occasion Taz had collided with anyone, let alone attacked anyone. Given the agreed expert report and the lack of any such history (indeed, the only history was positive), Mr Melville was unable to submit that Mrs Campbell had been negligent in permitting Mr Leaman to take Taz for walks. Furthermore, he did not submit, and on the evidence could not have submitted, that Mr Leaman had been negligent in allowing Taz off the lead. It was something that he had often done before. 
17.	Thus the only allegation of negligence that Mr Melville pursued was that Mr Leaman should have resumed control of Taz after he had come out of the river. Mr Melville submitted that Taz had been excited and running about and therefore presented a danger to someone, like Mr Addis, who was nearby.
18.	The essential difficulty with the Appellants’ case is that there is no basis for a finding that Mr Leaman could or should have foreseen that if he did not take control of Taz there was a risk of injury to anyone. If it was not negligent to allow Taz off the lead before Mr Leaman fell in the water, there was no basis for a finding that it was negligent to leave him off the lead afterwards. Moreover, it is accepted that Mr Leaman’s slip in the river was a pure accident: he was not in breach of any duty of care to anyone when he fell. Mr Addis’s accident occurred very soon after Mr Leaman was brought out of the river. He was still within sight of Mr and Mrs Addis, since Mrs Hart was able to see Mr Addis when he fell. As Mrs Hart said, when cross examined by Mr Melville, “The two things (by which she meant Mr Leaman’s fall and Mr Addis’s accident) happened so quickly.  .. George falling in the water … and then the other accident.” Mrs Addis herself said, “As he [Mr Leaman] was being led up the ramp, I think that was when the impact happened.” She added that she could not swear to that, because of her state of shock afterwards, but given the short distances involved, there could have been very little time indeed between Mr Leaman’s emergence from the river and the accident that befell Mr Addis. To find Mr Leaman guilty of negligence for not having taken control of Taz in these circumstances would be to impose a very stringent duty of care indeed. However, absent any reason for him to be concerned that Taz might injure anyone, there is no basis for any duty.
19.	I refer to what my Lord, Lord Justice Aikens, said in Jones v Whippey [2009] EWCA Civ 452 at paragraph 16 of a judgment with which the other members of the Court agreed:
The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “'reasonable behaviour”.  Before holding that a person's standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the Defendant (i.e. the person who caused the accident) would contemplate that injury is likely to follow from his acts or omissions.  Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the Defendant) to anticipate it.”
20.	The Appellants in the present case could not possibly satisfy this requirement.
21.	For these reasons, I would dismiss the appeal.
Lord Justice Aikens:
22.	I agree.
Sir David Keene:
23.	I also agree.