Mrs D (who was from Australia) was visiting the Defendant’s home in Penznace, Cornwall. Following dinner she decided to go to bed. As she made her way to her room she saw the Defendant’s collie dog, "Jack", in a chair in the lounge. She approached the dog and stroked him on top of his head. As she did so Jack lunged up towards her and snapped catching the front of her face.
As a result of the dog bite Mrs D suffered severe facial injuries resulting in the complete severance of the flap and cartilage of her right nostril.
She was taken by ambulance to Royal Cornwall Hospital Truro where the section of nose was re-attached.
On her return to Australia she attended her GP who has referred her to various specialists and consultants. On returning home to Australia the nostril rim which had been reattached was removed. About 5 months later a skin graft operation was performed using tissue from the right ear. Although the graft was successful Mrs D was left with nostrils that were different in size and shape as well as scarring from the various surgeries. She also had functional difficulties regarding breathing and sense of smell. She underwent a further operation to try and improve the appearance and function of the nose. The appearance was better but there were still breathing difficulties.
Mrs D contacted Slee Blackwell Dog bite solicitors who agreed to act for her on a No Win No Fee basis. We sent a letter of claim to the Defendant as we felt that there was a strong case in respect of the Animals Act. Mrs D was also hopeful that as the Defendant was a friend they might be willing to accept responsibility given that they knew the seriousness of the injuries caused.
Unfortunately as is often the case the Defendant dog owner was not willing to accept that they or their dog was to blame and the insurers were simply not willing to accept fault.
Liability was denied by the Defendant's insurers on the basis that Mrs D was specifically instructed not to put her face down to the dog as he may nip her nose. It was also argued that the dog was quietly laid in his chair when Mrs D chose to ignore this warning and the possible consequences pointed out to her. By ignoring the warning and getting close to the dog, the insurers argued Mrs D had voluntarily accepted all risks involved and the possibility of injury.
Inmportantly the voluntary acceptance of risk is one of the few defences available to an Animals Act claim. Being specialist Animals Act lawyers familiar with the law we were happy to advise Mrs D that we did not agree with the insurers and did not feel that the defence applied in this case.
Arrangements were made for Mrs D to under an examination by a Consultant Plastic Surgeon and Consultant Psychiatrist. Major difficulties were encountered finding an Australian based surgeon able to provide an appropriate medico-legal report and therefore consultations took place via Skype.
A report was also obtained from a cosmetic camouflage consultant who noted that the exposed skin and Australian climate meant Mrs D was at an increased risk from skin cancer unless precautions such as the use of sunblock were taken.
As well as on going restricted breathing the Mrs D reported problems with her sense of smell however she took the decision not to obtain a report in relation to this in the hope the claim could be settle. An offer of settlement was put forward by the insurers simply did not engage in negotiations.
Although the insurers had indicated a desire to try and settle the claim "out of court" liability remained denied and their failure to reply to offers to settle meant that the claim was not moving forwards. The third anniversary of the claim was fast approaching and so a decision was made to issue Court proceedings in order to force a response from them.
Because liability was denied a report was obtained from canine behaviourist John Rogerson. Slee Blackwell had obtained Jack's vet records and these showed the dog had clear agressive tendencies and had bitten a child on a previous occasion. Mr Rogerson took the view that the Defendant must have been well aware of the aggressive tendencies of the dog and that these had been present for a number of years. John Rogerson agreed that the bite was severe and he also explained that the characteristics being displayed were arguably specific to the circumstances being that the dog was acting territorially/guarding its resources as it was reclining in its favourite chair. He described the bite as a level five which one would only expect in a dog with aggressive tendencies. The report was disclosed but again no response was received. Proceedings were therefore issued and served. Just prior to having to serve a defence it was confirmed that liability was no longer in dispute. Settlement was agreed shortly after for the sum of £40,000.
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