We take over files from lots of solicitors who have told their clients they cannot help because the dog that bit had no history of aggression.
We get regular denials from insurers who say that the dog owner cannot be held responsible because the dog hadn't reacted in this way before.
In fact if those of us at dog bite solicitors gave up every time someone raised that argument our success rate wouldn't be anywhere near the pretty much 100% record we have.
However the belief that "every dog is allowed one bite" is'nt one we agree with.
A lot of the time the defence that a dog hasn't been aggressive in the past turns out to be (putting it bluntly) a lie. A dog owner will swear blind that their dog has never shown any aggression and then we will get hold of the vet records or re-homing documents or a police interview and will see references to the dog biting and snapping and being difficult to examine or even having attacked before. Often with the evidence of this past history placed before them a dog owner or insurer will still try and defend the claim but once the truth is out is does make life pretty difficult for them. Proof of a dog with a history of aggression does not guarantee a claim will succeed but it is obviously very helpful.
However, sometimes despite getting all the records there doesn't seem to any history of aggression. What happened on the day the dog bit and attacked does seem to be a genuine "one off". However even with a lack of evidence we do not accept that this means there isn't a claim and luckily for our clients we will continue to fight.
Our understanding of the law relating to dog bites and in particular evidence of previous aggression was tested in a recent case that should have been relatively straight forward but which unusually went all the way to trial.
The case involved Mrs E who had taken her daughter to Primary School and was walking home along Ellingham Road, London. The Defendant was a resident of Ellingham Road and owner of a dog called “Murphy”. The Defendant had Murphy on a lead and had come out of his house and was opening his car door with Murphy stood behind him. As Mrs E walked by the Defendant and Murphy the dog jumped up at Mrs E biting her breast.
Mrs E was very distressed by what had happned. She phone Slee Blackwell and sent a letter of claim holding the Defendant liable for the accident.
When we heard back from the Defendant's insurers it was apparent that it was not going to be disputed that Murphy had bit Mrs E but liability was still denied on the baiss that Murphy had not bitten anyone before, had a good temperament, and was not an aggressive dog and that the vet records make no mention of any issues with aggression. Fault was also put onto Mrs E. Although the Defendant did not witness the attack as he was looking away at the time he stated that he believed that the Claimant acted in a manner which led to Murphy reacting and biting. It was suggested that the Claimant was on the phone and walked into Murhpy.
We remained of the view that the law was in Mrs E's favour and that the issue of past-aggression was a "red herring" as far as proving fault on the part of the Defendant was concerned. In addition we felt that there were significant weaknesses in the Defendant's case. For example:
- The Defendant confirmed that Murphy wore a “Halti” collar. It was our argument that this particular type of collar indicated known control issues. Importantly no evidence was provided as to how these control issues have been addressed.
- Similarly no evidence was provided as to how the dog was able to reach Mrs E if the Defendant was holding the dog properly.
- The Defendant was unable to provide any evidence in relation to training.
- The Defendant confirmed he had seen Mrs E walking along the street but took no steps to ensure that she was aware of Murphy or took any steps to avoid any contact.
- Mrs E always denied being on the phone. A copy of her itemised phone bill was obtained which showed that she called her partner for less than a minute after dropping her daughter at school and then again immediately after the incident before calling the police.
A GP report was received in relation to the dog bite which confirmed the Claimant suffered a moderate dog bite to the left breast which resolved in 6 weeks from the date of the incident. There was also a psychological element and a report from a Consultant Psychiatrist confirmed that the Claimant suffered a specific phobia demonstrated by anxiety around dogs as well as exacerbation of a pre-existing sleep disturbance.
At trial it was held by the judge that the three stage test of the Animals Act was indeed met. Importantly he held that the lack of past aggression was of no relevance stating:
The dog in this case is an absolute sweetheart. We know that because the defendant has told us as much, he has never behaved in this way before but unfortunately for the defendant, the Act has taken care of that because it says in 2(2)(c) that those characteristics, were known to the keeper or that keeper or were at any time known to a person, e.g., a handler, or the head of the household. What it means is that the keeper or the head of the household or the owner, if you like, has to know that dogs, in this case, are likely to portray certain characteristics, e.g., jumping up and biting, in certain circumstances; not that this dog has never done it before and ‘therefore I cannot be liable because the dog did it once’. It is a misunderstanding of the Act that leads people to believe that… It is commonly thought by dog owners, it seems to me, that if Little Timmy has never done this before it is entitled to its first bite, but that is not what this Act says.
The Claimant was therefore successful in her claim and was awarded compensation of £4,404. The amount she received was increased because it was higher than previous offers made during negotiations.
Says specialist dog bite solicitor and Personal injury expert James McNally:
This case more than any shows how important it is to find the right solicitor to deal with your claim. I have no doubt that if Mrs E had gone to another firm she would have been told that as the dog wasn't aggressive she had no claim. Luckily we are familiar with the Animals Act and dog bite law and we also have access to barrister's who understand this complex bit of legislation. This means that we aren't going to give in the moment liability is denied and it means that we know how to build the very best case to present to the Court.
It is unusual for these cases to go to trial and this was a relatively low value case and was not one you would expect the insurers to Defend as they did but in a way I am glad they did as the judge's comments show that we were correct and that our understanding of the law is the one that the Court will apply.
James McNally can be contacted for specialist No Win No Fee dog bite injury legal advice on 0808 139 1601 or by email email@example.com
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