1. This appeal raises a short but important point of construction of the Dogs (Northern Ireland) Order 1983 (the 1983 Order). It is brought against the order of Coghlin J made on 28 June 2000 whereby he gave judgment for the respondent Cecil Scott, the second named defendant in an action brought by the appellant for damages for personal injuries, loss and damage sustained by him when he was bitten on Cecil Scott’s land by a dog owned by the first named defendant Jean Scott. The issue in the appeal turns on the construction of Article 2(7) of the 1983 Order, whereby the owner of land on which a dog is found is deemed to be the person who keeps that dog unless he can prove certain matters in his defence.

2. The facts found by the learned trial judge can be stated in short compass. The appellant is now aged seven years and at the time of the incident on 21 March 1996 was three years old. On that date his father visited Cecil Scott’s farm in order to purchase some bales of hay and the appellant accompanied him. The appellant was standing beside his father’s trailer in the farmyard when a dog named Prince jumped up on him, knocking him to the ground, and bit him in the face. The dog had been brought by Cecil Scott to the farm as a puppy and given to his sister Jean. She took out a licence for the dog and looked after him. Jean Scott at all material times resided in the farmhouse, but the farm buildings and lands were owned and occupied by Cecil Scott, who lived in a separate house nearby and worked the farm. Prince was not a working farm dog, and was rather a pet and guard dog, but he spent much of the time in the farmyard and on the farm lands.

3. The appellant commenced the present action against both defendants. He obtained judgment by default on 16 September 1998 against Jean Scott and proceeded with the action against the respondent Cecil Scott. Although the claim was pleaded in negligence and breach of statutory duty, the issue of negligence was not pursued and the action and appeal turned on liability under the provisions of the 1983 Order.

4. The 1983 Order contained, among other provisions, a statutory remedy which does not replace but for practical purposes supersedes the common law rules governing liability for the acts of animals. In Morrison, a minor v Miller (1991, unreported) I criticised the drafting of the 1983 Order, the construction of which contains many difficulties, and detailed examination of its provisions during the hearing of the appeal did not cause me to moderate those criticisms. As I stated in my judgment in that case, the Order sets out to lay down a comprehensive system of licensing and control of dogs by local authorities and offences relating to failure to obtain licences for dogs or to keep them under proper control in various specified respects. Civil liability for injuries or damage caused by dogs is imposed, almost as an afterthought, by Article 53.

5. By Article 3 it is unlawful for a person to keep a dog unless he holds an appropriate dog licence. Article 4(1) provides:

6. One might suppose from that provision that in every case there will be only one person who is to be regarded as the keeper, and who is to obtain and hold the licence for the dog. It is quite apparent, however, from Article 2 and other provisions that this is not the case and that more than one person may be regarded as the keeper in certain circumstances. Article 2(3) to (7) provides:

7. The same conclusion may be drawn from Articles 22(3)( a)(i) and 24(1)( a)(i), both of which contain the phrase “if the keeper of the dog is a person other than its owner”.

8. The foundation of civil liability is in Articles 29 and 53. Article 29(1) provides:

9. That provision relates in terms only to civil liability, but civil liability is imposed by Article 53, which provides:

10. As I pointed out in Morrison, a minor, v Miller , it is not easy to understand why the phrase “breach of a duty” was introduced by the draftsman in Article 53(1). Of the four Articles mentioned, only Article 25 could readily be said to impose a duty. Articles 22, 28 and 29 by their terms impose criminal liability upon persons in certain circumstances, and in order to apply Article 53 to them one has to say that by necessary implication those Articles impose a duty upon the persons made liable for the offences specified. One must do so in order to make Article 53 operate, whatever the infelicity of the provision in the Order for the imposition of civil liability, and Mr Ringland QC for the respondent did not attempt to argue to the contrary. Nor did he dispute that when a dog deliberately bites a person, that should be regarded as attacking him within the meaning of Article 29(1). The debate in the present appeal centred round the construction of Article 2(7) and its applicability to the case.

11. The learned trial judge said at page 7 of his judgment that he inclined to the view that Article 2(3) probably contemplated only a single keeper of a dog, in the context of making that person liable for a relevant criminal offence or control obligation. He did not come to a firm decision on this point, for he was satisfied on the facts that the respondent Cecil Scott was neither the owner nor possessor of the dog. He considered the terms of Article 2(7) and expressed his conclusion in the following passage at pages 8 to 9:

12. He therefore found that liability did not attach to Cecil Scott under Article 2(7) and dismissed the appellant’s claim against him.

13. I do not find it possible to accept the interpretation which the judge put on Article 2(7). In my view that paragraph comes into operation whenever the conditions contained in it are fulfilled. It is not in my opinion a correct interpretation of Article 2 to say that paragraph (7) only comes into effect when it is not possible to identify the keeper by the application of the earlier paragraphs. Such a construction assumes that there can only be one keeper, and, as I pointed out earlier in this judgment, that proposition is unsustainable when one considers the wording of Articles 2, 22 and 24. I consider that the objective of Article 2(7) is to hold the occupier of land liable, even though another person may be proved to be the keeper, unless he proves that the dog was permitted to remain on the land without his knowledge.

14. The paragraph is not without its difficulties of construction, for it is not immediately clear who is the person who has permitted the dog to remain on the land. If it was there without his knowledge, it cannot be the occupier of the land who permitted it to remain, and one can only presume that the person who did permit it to do so was the owner or possessor. For practical purposes the phrase “was permitted to remain” seems to mean no more than “remained”. The use of the word “remain” also seems to connote some temporal element, which would apparently not be satisfied if the dog had just come on to the land and did not frequent it regularly. On any view of the meaning of the phrase “was permitted to remain”, however, I consider that on the facts it is clear that the dog Prince came within it and that the condition in Article 2(7)( b) has not been fulfilled.

15. I accordingly conclude that the respondent Cecil Scott was by the operation of Article 2(7) deemed to be the person who kept the dog and is consequently liable to the appellant for the injury done by it, in addition to the liability attaching to his sister Jean Scott as owner of the dog. The judge, who saw the appellant for himself, assessed the damages at £15,000, and I see no ground for varying his assessment. I would allow the appeal and enter judgment in favour of the appellant for that sum.

16. I agree with the judgment given by the Lord Chief Justice.