As many dog-owners know, there is a specific ban on ownership of a number of dog breeds in England & Wales – the most well-known banned breed being the pit-bull variety. This comes from the Dangerous Dogs Act 1991.
However several uncertainties exist in the law for other breeds of dog – especially those not known for aggressive tendencies, and therefore are not banned under Section 1. What happens when a legal breed attacks or causes damage?
When there is a dog attack from a breed which is not banned under Section 1 (i.e. a legal breed), as the law stands under Section 3 of the 1991 Act: the dog must a) be dangerously out of control AND b) be in a public place OR on land it is not permitted to be (e.g. a neighbour’s garden). This therefore clearly covers instances of dog attacks on people in parks and another person’s land (where the dog was not invited via its owner). It is fairly straightforward then that for any punishment to exist under this Act (the punishments largely being criminal prosecution imposing fines, prison, and/or putting the dog down), the attack (or fear of attack) must be on public land, or land it was not invited on to.
The potential for a change in the law is to change Section 3 to cover any place and not just public land or another individual’s land. This would cover the dog-owner’s own land and private land where the dog was welcomed. Older Acts still in force appear to allow for any place, yet the DDA 1991 does not. Currently under the 1991 Act, a postman entering a front garden and being bitten by an allowed breed does not have a remedy under the 1991 Act because the 1991 Act does not cover the dog-owner’s own land. There has been recent news coverage of postmen refusing to attend certain houses for fear of an attack.
Looking at the other legislation – the Dogs Act 1871 allows for ‘dangerous dogs’ to be put down. Unlike the Dangerous Dogs Act 1991, there is no specific definition and outlawing of certain breeds of dog, so the 1871 Act appears to be all encompassing and each case (and dog) brought under the Act would be judged on its own merits as to whether ‘dangerous’. However, given that the 1991 Act is more recent – by more than a century – it may be difficult to convince a Court to act under this legislation in place of the DDA 1991 when bringing a claim for an attack on the dog-owner’s land. The difference between the DA 1871 and the DDA 1991 is that the 1871 Act applies everywhere, even in a private dwelling, so there could be a remedy under this Act for postmen attacked in a front garden. The two Acts appear to conflict, and it is unlikely a Court would use the old Act given the majority of it has now been repealed.
The Animals Act 1971 throws further ambiguity into the fray. Section 2 (1) of the Act creates liability on the owner of a dog for damage caused by a ‘dangerous species’. Thankfully this is defined in the Act. However, Section 2 (2) creates liability for breeds that are not classed as a ‘dangerous species’ but only if the damage is of a kind which the animal, unless restrained, was likely to cause, or which, if caused by the animal, was likely to be severe AND the likelihood of the damage or of its being severe was due to the characteristics of the animal which are not normally found in animals of the same species (or are not normally so found except at particular times or in particular circumstances) AND those characteristics were known to the keeper. The key here then is that the unique dangerous characteristics of the particular dog must have been known to the keeper of that dog. Evidence to back this up would be a history of violence / damage perhaps contained within police reports, or from witness statements from the neighbours. It is unlikely that an owner would openly admit to knowing her dog was overly aggressive without such evidence to contradict her, thus this would be difficult to prove without reports of some kind.
Another question arising from the 1971 Act is the meaning of ‘severe’. An attack from an allowed dog with aggressive characteristics on a person would most likely be considered severe, but an attack on somebody’s property (and perhaps even including the death of their pets, such as a Jack Russell mauled by a larger dog) may not be considered ‘severe’. There is also no mention under the 1971 Act of public/private boundaries, therefore the 1971 Act seems to cover all places – again contradicting the newer 1991 Act. Therefore it is ambiguous whether a claim can be brought for the death or damage to your pet if you take it onto the dog-owner’s land and it is involved in a fight and subsequently injured/killed. This would be the Act to opt for on such an occasion, but the question of severity of damage is open to interpretation from the Court.
Therefore, while the 1971 Act creates liability for damage done by a ‘dangerous species’ (much like the 1991 Act does in the specific outlawing of certain breeds), it only creates liability where damage is done by an allowed breed only if the damage was ‘severe’ and the damage was caused by characteristics of the dog which are not normally found in animals of the same species, and importantly the owner must know of those characteristics. There appears to be 3 conditions required to be met, and more importantly to our overriding question than all: will this be interpreted in line with the 1991 Act to include boundaries – therefore not including the owner’s land?
So while it is clear from the wording under the DDA 1991 Act that you can have a remedy for a dog attack in public or a place the dog is not allowed to be, it is unclear on the whole whether a remedy is available for an attack on the dog-owner’s land, unless one was to attempt to rely on the old 1871 Act and/or the 1971 Act which appear to know no boundaries. It is also unclear whether an attack that damages property or another person’s pet on the owner’s land would bring about a criminal prosecution and/or civil remedy, as there are even more hurdles to jump over regarding severity and knowledge of aggression.
To summarise the current position: if there is a one-off attack from an allowed breed of dog that is not known to be aggressive (or this point is vehemently denied by the owner and there is no evidence to prove otherwise), on the dog-owner’s land, it is unlikely that a remedy is available. This is in line with the law on negligence: How can an owner of a dog cannot reasonably be said to have been negligent if her dog suddenly attacks an individual while at home, with no history of that animal ever being aggressive previously? However, with 2 other Acts conflicting the boundaries laid out in the DDA 1991, there is a need to add clarity for the sake of postmen and small dogs out there!
For more information please give us a call on 0113 244 9931 and we eill be more than happy to help