We look at the mistaken belief that every dog is allowed one bite
We take over cases 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 that way before.
However, if we gave up every time someone raised that argument our success rate wouldn't be anywhere near the pretty much 100% record we have.
It is a common misconception that a dog is allowed one bite. This belief is entirely mistaken and is based upon a fundamental misunderstanding of the law in England and Wales.
A lot of the time the defence that a dog hasn't previously been aggressive 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 when we obtain the vet records or re-homing documents or a police interview we often see references to the dog biting and snapping and being difficult to examine or even having attacked before. When the evidence of this past history is placed before a dog owner or their insurance company they will back down. A dog with a verifiable history of aggression does not guarantee a claim will succeed, but it is obviously very helpful.
However, sometimes there doesn't seem to any previous history of aggression. What happened the day the dog bit is a genuine "one off". But this doesn't mean there is no legal case.
This point was tested in a recent case we dealt with. It should have been relatively straightforward but unusually it went all the way to a fully contested trial in court largely because the owner's insurers wrongly believed in the fallacy that a dog is allowed one bite
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 past Murphy the dog jumped up at Mrs E, biting her breast.
Mrs E was understandably very distressed by what had happened. She contacted us and we agreed to take her case on.
The Defendant's insurers did not dispute that Murphy had bitten Mrs E, but legal liability was still denied on the basis that Murphy had not bitten anyone before, had a good temperament, was not an aggressive dog and that the vet records made 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 believed that Mrs E had acted in a manner which led to Murphy reacting and biting. It was even suggested that she 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; and
- Mrs E 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 injuries that Mrs E suffered. There was also a psychological element to her injuries and a report from a Consultant Psychiatrist confirmed that Mrs E suffered a specific phobia demonstrated by anxiety around dogs as well as exacerbation of a pre-existing sleep disturbance.
The case couldnt be settled out of court so we took it to trial. The judge agreed with us that the three stage test of the Animals Act had been met. Importantly he said that the lack of past aggression was of no relevance, commenting:
"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"
Our client's claim was therefore successful and was awarded compensation for her injuries. The amount she received was increased because it was higher than previous offers made during negotiations.
Specialist dog bite solicitor James McNally said after the trial:
"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 barristers 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 will serve as a reminder to insurance companies that it is not correct to work on the basis that every dog is allowed one bite."