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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burton v. Mookhead [1881] ScotLR 18_640_1 (1 July 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0640_1.html
Cite as: [1881] ScotLR 18_640_1, [1881] SLR 18_640_1
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SCOTTISH_SLR_Court_of_Session
Page: 640↓
Court of Session Inner House Second Division.
[Sheriff Court of Lanarkshire at Glasgow.
v.
Facts:
M. owned a watch-dog, which on account of its known ferocity he kept chained up at the back of his house. It broke its chain and bit B., who was lawfully passing the house. Held that M. in keeping a dog which he knew to be ferocious must take all the risk of doing so, and therefore that the fact that he took reasonable precautions to restrain it which ultimately by unforeseen accident turned out to be insufficient did not protect him from liability for the injuries sustained by B., who was lawfully on the premises.
This was an action of damages for £150, raised by Thomas Burton, a dancing master in Glasgow, against Robert Moorhead, a merchant and commission agent there, from injuries sustained from the bite of a dog belonging to the latter. The circumstances which gave rise to the action were as follows: —On 29th May 1880 the pursuer was proceeding with his wife to pay a visit to a Mr Quin, the contractor of the Paisley Waterworks at Gleniffer. Just before they arrived at the defender's house at Craigielinn, Paisley, the pursuer alighted from the carriage in which they were driving, and as he was walking near the carriage a large dog, kept by the defender as a watch-dog, and which was tied up at the back of his house by a chain attached to a swivel in the ground, leapt forward and bit him severely on the left leg near the ankle. The pursuer averred that in consequence of the injuries which he thus sustained he had been confined for eight weeks to the house and had suffered a severe shock to his system, and
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permanent injury. He pleaded—“(1) The defender's dog having bitten pursuer, the defender is liable in reparation, in respect that there was no fault on the part of the pursuer, and said dog was vicious, ferocious, and dangerous. (2) There being culpa on the part of defender, or those for whom he is responsible, in not having the said dog sufficiently attended or secured, the defender is liable to pursuer for the injuries sustained.” The defender, on the other hand, averred that the pursuer had no right or title to be in the neighbourhood of the dog's kennel, for he was not coming to the defender's house or premises, and had no occasion to pass by the back of defender's house. He was in fact a trespasser on the defender's grounds. He further averred that the dog was quietly disposed and affectionate, and when off the chain would bite no one. He pleaded —“(1) The pursuer having been trespassing when he suffered the injuries complained of, he has no right of action. (2) The pursuer having provoked the defender's watch-dog, he is not entitled to recover damages.”
The import of the proof which was led before the Sheriff-Substitute will appear sufficiently from his interlocutor and from the opinions of the Judges.
The Sheriff-Substitute ( Lees) found “That on 29th May 1880 the pursuer was passing along a private road leading past the defender's house to the waterworks in course of construction for the burgh of Paisley, and that said road led near a kennel, at which there was chained a retriever dog belonging to the defender, and kept by him there as a watch-dog: That the said dog was of a most savage character, and that it had bitten several people, and that the defender had been put on his guard as to its propensity to attack people: That in these circumstances it was incumbent on him to take all proper precautions for the safety of people having occasion to pass along said road: That the precautions adopted by the defender were, that the dog was secured by a chain attached at one end to its collar, and at the other to a ring passing through a staple driven into the ground: That on the occasion in question the dog sprang so violently towards the pursuer that one of the links of its chain snapped, whereon it rushed on the pursuer and bit him severely: That the said chain had been in use for two years, had been bought as a new chain and as being of sufficient strength to restrain the dog, that apparently to the eye it was sufficient for this purpose, and that it had never before nor since 29th May given way: That therefore the precautions taken by the defender were reasonably sufficient: And in these circumstances, as matter of law, that the defender was not responsible to the pursuer for the injuries he had sustained through the unexpected fracture of the dog's chain; therefore assoilzied the defender from the conclusions of the action.”
On appeal the Sheriff-Principal ( Clark) found “That the defender was the owner of a powerful and ferocious dog, kept for the purpose of watching his premises, and that he was well aware of its ferocity and dangerous charaoter: That on the occasion libelled, which was during the day, the said watch-dog broke loose from its chain by the snapping thereof, and attacked and seriously injured by biting the pursuer: That the said occurrence took place through the failure of the defender, or of those for whom he is responsible, to provide a chain sufficiently strong for the purpose intended, and that he is in consequence liable in damages to the pursuer: Assessed the said damages at £50, and decerned against the defender therefor.”
In the note which he appended to his interlocutor he said:—“I agree in substance with all the findings and views of the Sheriff-Substitute, with the single but important exception that the precautions taken by the defender were sufficient to exonerate him from liability, and that he is not responsible in law for the injuries sustained through the unexpected fracture of the dog's chain. It is no doubt quite true that a man is entitled to keep a ferocious dog for the protection of his premises, and even to turn it loose during the night. But it does not seem to be law that he is entitled to let it run loose during the day, or that he can escape liability if he fails so to secure it during the day that it shall not break loose and injure those who are where they are lawfully entitled to be. A man is only entitled to keep such a dog on condition that he effectually provide against contingencies of this kind. Now, in the present case, the dog broke loose from his chain by the snapping of a part thereof. That of itself is prima facie evidence that the chain was insufficient. It is no answer to this that the blacksmith who provided the chain seems to have thought it sufficient. It is obvious from the deposition of that individual that he entertained the most erroneous notions as to what was a sufficient chain. He seems to think that a chain to hold a watch-dog is quite sufficient for that purpose though it might not be able to resist the strain of sudden jerks or bounds. Such a notion seems to amount to a manifest absurdity. If the chain of a watch-dog cannot resist the strain of jerks and bounds, it is utterly worthless for its purpose, as everyone knows who has seen a dog rushing at an object which his chain prevents him from reaching. There is no doubt that chains may be forged of sufficient strength to restrain the most powerful watch-dogs. Were it not so, indeed, the keeping of watch-dogs would long since have been prohibited by law. In the present case it seems clearly established that the chain was defective in strength, and that by making proper inquiries the defender might have satisfied himself of this fact. Upon these grounds it seems to me that he is liable in reparation to the pursuer. As to the amount of damages, it will be seen, I think, from the medical evidence that the injuries received were of the most serious kind, and must have caused the pursuer much suffering. When these and the costs of treatment, together with the loss of time and business profits, are considered, £50 appears a moderate sum at which to assess the pursuer's claim.”
The defender appealed, and argued—To entitle the pursuer to succeed he must prove blame attachable to the defender in not having taken reasonable precautions to restrain the dog.— Moffatt v. Bateman, 14th Dec. 1869, 3 Privy Council Cases, L.R. 115; Fleeming v. Orr, 3d April 1855, 18 D. 21, H. of L.; Renwick v. Rotberg, 2d July 1875, 2 R. 855; Cowan v. Dalziels, 23d Nov. 1877, 5 R. 241. And more
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than this, he must prove negligence of the very grossest kind, inasmuch as he was not in the position of a visitor coming to the defender's house, but of a mere licensee on the premises.—Shearman and Redfield on Negligence, p. 582; Gentrel v. Egerton, 21st Feb. 1867, L.R. 2 C.P. 371 (Mr Justice Wills' remarks); Fletcher v. Rylands and Another, 14th May 1866, 1 L.R. Exch. 287 (Mr Justice Blackburn's remarks). The defender had in point of fact done all he could in chaining up the dog. The pursuer replied that in point of law it was not incumbent on him to show that the defender was guilty of negligence and default in securing the dog. It was enough to show that he was aware of the dog's mischievous propensities, and further the fact that he had taken reasonable precautions, which however ultimately failed, was no answer to the action. In keeping the dog at all the defender did so at his own risk—Hale's Pleas of the Crown, i. 430; May v. Burdett, June 2, 1846, L.R. 9 Q.B. 101; Addison on Torts, 113.
At advising—
In regard to the first point, I do not think the evidence can bear such a construction at all. Mr Quin, the foreman of the waterworks, had invited the pursuer to use the road, he himself having permission to use it as being the shortest way to the waterworks, and therefore he made use of this privilege without any interposition on behalf of the owner. I do not understand the discrepancies in the evidence between Mr Moorhead and Mr Quin here, for Mr Moorhead denies that he accorded this privilege to Mr Quin. However, I am inclined, for my own part, to think on the balance of evidence that surrounding circumstances corroborate the evidence given by Mr Quin.
The second point is a more important one. The defence in substance is that this liability for the dog is to depend on his having taken reasonable means to restrain the animal. This I consider is based on an entire misapprehension of the law on this point.
It seems agreed that where the owner of a dog does not know that the animal is ferocious the mere fact of its being so will not render him liable for evil consequences. Now, on the other hand, I am of opinion that when the character of the animal is quite well known, there is an obligation, in the interests of public security, on the owner not to keep the dog at all on his premises unless it is well restrained. The distinctions are of the clearest kind, and therefore the proprietor of such a dog keeps it at his own risk. The passage which was quoted to us from Lord Hale's Pleas of the Crown brings the matter out very clearly, because under the old English law there was a broad distinction made between what made a person liable criminally and civilly—“If a man have a beast, as a bull, cow, horse, or dog, used to hurt people, if the owner know not his quality he is not punishable, but if the owner be acquainted with his quality, and keeps him not up from doing hurt, and the beast kills the man, by the antient Jewish law the owner was to die for it (Exod: xxi. 29); and with this seems to agree the book of 3 E. 3 Coron. 311, Stamf. P.C. 17, as therein these things seem to be agreeable to law—(1) If the owner have notice of the quality of his beast, and it doth hurt anybody, he is chargeable with an action for it. (2) Though he have no particular notice that he did any such thing before, yet if it be a beast that is feræ naturræ, as a lion, a bear, a wolf, yea an ape or monkey—if he get loose and do harm to any person the owner is liable to an action for the damage; and so I knew it adjudged in Andrew Baker's case, whose child was bit by a monkey that broke his chain and got loose. (3) And therefore in case of such a wild beast, or in case of a bull or cow that doth damage where the owner knows of it, he must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm the owner is liable to answer damages.”
Now, that brings out clearly the distinction confounded by the defender between the case of a man doing what he thinks is lawful in a negligent manner, and a man doing what is unlawful and taking the risk of the bad consequences of his act.
I am therefore for adhering to the Sheriff's judgment.
The Court adhered.
Counsel for Appellant— Guthrie Smith— Shaw. Agents— Rhind, Lindsay, & Wallace, W.S.
Counsel for Respondent— Macdonald, Q.C.— Lang. Agents— Macbrair & Keith, S.S.C.