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Trinidad and Tobago High Court |
] [Hide Context] IN THE HIGH COURT OF JUSTICE
Diane Drayne Quamina
And
Anthony Cherry
Jackie Quamina Cherry
Defendants
*********************
Before the Honourable Mr. Justice V. Kokaram
Appearances:
Mrs. L. Maharaj S.C., Ms. S. Maharaj instructed by Ms. Isaacs for the Plaintiff
Mr. R. Amour S.C., Ms. V. Gopaul instructed by Ms. G. Maharaj for the Defendants
1. INTRODUCTION :
1.1 We may never fully understand the animal kingdom and the behaviour of some animals may be difficult to predict. However, over the years dogs, and man have been able to peacefully co-exist so much so that even though being a descendant of wolves, known to be vicious creatures, dogs have now been socialized to being “man’s best friend” and are now very much a feature of a family home. However as this case readily reminds us, some dogs are capable of displaying ferocious power, tapping on their instincts suppressed by socialization. Recently legislation has been passed in this jurisdiction to protect the public at large from, and impose a statutory responsibility on owners of, those dogs which are deemed to be “dangerous.”
1.2 In this action Ms. Diane Drayne Quamina, the Plaintiff herein and the sister-in-law of the Defendants, prior to May 1992 held no anxiety, nor fear of dogs. However, at around 7 p.m. on 12 th May 1992 the Plaintiff was walking towards the Defendants’ home when she was the victim of an attack by three dogs at The Park, Glencoe within a short distance of the Defendants’ front gate.
1.3 It was a very serious attack. She was pinned against the neighbours’ white gate. All three dogs continuously jumped and snapped at her. One dog grabbed her leg and feet. One dog eventually had her by the neck, one by the leg and one by the back of the head. It was an attack that had her traumatized. She thought she was near death. She screamed continuously when eventually she was saved by a neighbour Mr. Michael Narine, the good Samaritan in this story, who lived some distance away at the bottom of the hill from the Defendants. Her clothes had all but been torn to shreds. Cloaked in a blanket to cover her nakedness, she obtained medical attention that evening at the Port of Spain General Hospital. The Plaintiff contends that it was the Defendants’ three (3) dogs that attacked her that night.
1.4 Brutus, Sampson and Cressida were the three (3) dogs owned and kept by the Defendants, Jackie Quamina Cherry and Anthony Cherry at their home No. 53 The Park, Glencoe. Their residence was situated at a cul de sac on a hill. The Thomas’, Welch’s and Carrington’s were all neighbours of the Defendants and there were other dogs owned and kept in neighbouring residences at The Park, Glencoe.
1.5 Brutus was a German Sheppard commonly known as an Alsatian. His owner Mr. Cherry was very proud of this stocky tan colored thoroughbred and according to him, taught this dog tricks to show him off in walks around the Savannah.
1.6 The other two dogs were a cross between Doberman and Alsatian commonly known as mixed breeds or “refined pot hounds” [1] , definitely not “first cut” [2] they however exhibited the physique resembling that of a Doberman.
1.7 From all accounts it appears that these dogs were very sociable animals and interacted congenially with the neighbours of the Defendants including minors. There were no incidents of these animals biting any human being or demonstrating violent or vicious traits towards humans or any allegations thereof until 12 th May 1992.
1.8 To this day no one knows what triggered the attack.
1.9 It is as a result of this attack that the Plaintiff launched these proceedings. She explained to the first Defendant “ I hope that you will not take offence in the fact that I am taking action against my attack from the dogs. I felt it was something that always stood in the way of us becoming close friends .” [3]
2. THE ACTION :
2.1 By writ of 15 th May 1995 the Plaintiff claimed against the Defendants damages for the loss and personal injuries sustained by the dog bites by the Defendants’ dogs who knew or ought to have known they were dangerous and/or had dangerous propensities [4] and/or caused by the negligence of the Defendants in the care and/or control of their dogs.
2.2 The narrow issue of fact to be determined is essentially whether these dogs were dangerous and/or known to be dangerous dogs by the Defendants and calls for an examination of the duty of care of owners of dogs in their care and control.
2.3 The heart of the Plaintiff’s case is pleaded in paragraphs 5 and 6 of her Statement of Claim:
“5. The Defendants knew that the dogs were dangerous and/or had dangerous propensities as aforesaid in that the dog and/or all the dogs had attacked other animals and/or persons on divers occasions in the past.
6. And/or alternatively the Defendants as owners and/or keepers who were responsible for the care and/or control and/or of the management of the said dogs were negligent in allowing the dogs to attack the Plaintiff.
Particulars of Negligence of Both Defendants :
a) Failing to restrain and/or control and/or supervise the dogs to prevent attacks.
b) Permitting the said dogs access to the public by failing to keep the gates of the premises closed.
c) Failing to have sufficient and/or regard for persons approaching and/or entering the premises.
d) Failing to give any or any adequate warning of the presence of dangerous dogs on the premises.
e) Knowing the dogs to be dangerous, failing to stop and/or prevent the dogs from leaving their premises and going onto the public road way and thereby attacking the Plaintiff.
f) Failing to muzzle the said dogs to prevent injury from attacks.
g) The Plaintiff will rely on the happenings of the event itself as evidence of the negligence of the Defendants.
h) By reason of the matters hereinbefore appearing the Plaintiff has suffered pain and injury and has sustained loss and damage.”
2.4 In her further and better particulars she stated:
“2. The Defendants never permitted their visitors including the Plaintiff and her former husband the Second Defendants’ brother Richard to walk past the dogs unless the Defendants or either of them were there to control them.
The Defendants kept the dogs as guard dogs for the protection of themselves and their property. Whenever visitors including the Plaintiff and the Defendants’ relatives visited the Defendants’ home the Defendants would control the dogs and/or lock them up before permitting the visitors to enter the premises.”
2.5 The Defendants denied knowledge of any fierce or mischievous nature in the animals and, that the dogs were kept as pets and within the confines of the Defendants’ premises. The main pillars of their Defence is found in the following paragraphs of its Defence:
“4. Alternatively, (and not admitting that which is denied) if the Plaintiff was attacked by a dog or dogs kept by the Defendants on the said premises the said dog or dogs were not, and were not to the knowledge of the Defendants, of a fierce or mischievous nature or accustomed to bite mankind or animals.
5. The Defendants deny ownership and/or being responsible for the dogs alleged or referred to in paragraph 4…If, which is not admitted, the dogs referred to in paragraph 4 of the Statement of Claim are intended to refer to the Defendants’ said dogs, it is denied the same were kept and/or trained as guard dogs, or were allowed to roam freely or to attack persons or to cause injury as alleged or…at all material times the said dogs were kept as pets and were kept within the Defendants’ said premises which were fenced, with gates and which gates were closed.
6. It is denied that the dogs were dangerous or had dangerous propensities and/or the alleged or dangerous propensities were known to the Defendants or either of them. It is further denied that at any time the said dogs had attacked and/or killed any other animals or persons as alleged or at all.
7. It is denied that anything done by the Defendants or any of them in relation to keeping care and control of the said dogs and/or management was done negligently or negligently in relation to the Plaintiff or at all.”
2.6 In its interrogatories the Defendants state:
“15. Q. Were the dogs referred to in the Amended Statement of Claim and/or the Defence not kennelised and/or chained and/or secured prior to the 12 th May, 1992?
A. Prior to the 12 th May 1992 the dogs were not chained. There was and open kennel for their use. At all material times before that date they were secured by reason of the fact that the premises were fenced and with a secured/closed gate at the drive-way entrance.”
2.7 At the commencement of the trial leave was granted for the re-amendment of the Statement of Claim and the late filing of certain witness statements.
Witness Statements :
2.8 In this trial the witnesses gave the majority of their evidence in chief by means of filed witness statements which were to be filed pursuant to orders made at the hearing of a Pre Trial Review.
2.9 It is a novel development in the conduct of trials that witness statements are being prepared and used as a witness’s evidence in chief. The order to file witness statements in this matter was made during the course of a Pre Trial Review with the condition that no evidence would be led without the filing of a witness statements. Such directions were necessary to ensure the expeditious and just resolution of this action. At the trial Attorney-at-law for the Defendants objected to the late filing of a witness statement of an expert animal behavioral scientist, Kristel-Marie Ramnath. Attorney for the Plaintiff took the opportunity to address the unique situation where previously any witness would have been able to give evidence, but for the directions made by the Court at the Pre Trial Review pursuant to the Practice Direction dated 13 th September 2005. As a result, the Court needed to give guidance as to navigating a path where the old and new rules merged.
2.10 The Court extended the time for the late filing of the witness statement of the Plaintiff’s expert witness, even though the witness statement was filed in the middle of the hearing of the Plaintiff’s case. The reasons for doing so are now reproduced in this judgment:
(a) There is a bridge that transports us from the landscape of the “old rules” (RSC 1975) over the dark and murky waters of delay in accessing justice to the landscape of the new rules (CPR 1998). One of the main planks on this bridge is the Practice Direction dated 13 th September 2005. Although the hearing of the trial is being conducted under the “old rules” this Practice Direction has infused new life in the management of the trial by equipping the sitting Judge with the powers of case management given to a Judge under Parts 26, 27 and 39 of the “new rules” at a Pre Trial Review which is convened prior to the fixing of a trial date.
(b) The objectives of this practice direction are (a) to ensure that when matters are fixed for trial there is allotted to them an appropriate time for their just determination (b) ensuring that matters are dealt with expeditiously and (c) avoiding waste of the Judge’s time.
(c) Both parties in this action have utilized all the traditional forensic exercises afforded to them by the “old rules” to prepare for the trial: request for particulars; discovery; interrogatories. Directions were given by this Court for the filing of witness statements at the PTR including time limits for the filing of same with the following conditions: that they shall stand as evidence in chief subject to the rules of evidence; that no witness shall give evidence without filing their witness statements. This the Court saw as necessary to achieve the deal with this matter justly and expeditiously. At the commencement of the hearing there were extensions of time granted by consent of the parties for the late filing of witness statements on either side. The directions of the Court at the PTR must be complied with for the orderly disposition of cases.
(d) The late filing of the witness statement of Kristel-Marie Ramnath, the Plaintiff’s expert is in breach of the Court’s direction and is not to be lightly treated as its admission at this stage may lengthen the course of the trial. Attorney-at-Law for the Defendant did indicate that he might as a result have to call rebuttal expert evidence.
(e) This is a unique situation however as under the old system parties were free to call as many witnesses as was necessary without advanced warning to the other party and without prior notice of the identity of the witness and nature of their testimony. The object of the Court’s direction made pursuant to the said Practice Direction is however to eliminate the element of surprise which will otherwise unduly lengthen the course of the trial. At the same time however it will be unjust to exclude relevant evidence. Although the Court will not lightly exclude expert evidence which may be of assistance to the Court at the very least fairness should have prevailed on the Plaintiff that if an expert is to give evidence advanced notice should be given to the other party to provide them an opportunity to supply its own expert.
(f) The witness statement of Ms. Ramnath deals generally with the behavior of dogs either individually or in packs. The burden is on the Plaintiff in this action to provide evidence to address two main issues: (i) the nature of the dogs and (ii) the knowledge of the Defendants of the propensity and potential of the dogs. The clash of experts on these issues can be seen in Draper v Hodder (supra). The Court must however determine these issues as they relate to the dogs in question and in relation to the incident that took place in 1992.
(g) The evidence advanced by Ms. Ramnath is theoretical and not based on an examination of the dogs in issue. Although the Court must be careful not to accept evidence where the prejudicial value outweighs its probative quality the Court must be concerned to be fair to both sides and to ensure that the parties are able to present its case on all relevant issues.
(h) Very narrowly, despite the Court’s displeasure of the Plaintiff flouting the Court’s direction the Court will allow the evidence to be given. However only with regard to those parts of the statement that are relevant to the issues in this case. For this reason several parts of the witness statement will be expunged. [5]
(i) Insofar as it was argued that the evidence may be of little assistance the evidence now in its sanitized form, will go to weight and not to admissibility. In Mortgage Corporation Limited v Sandoes [6] Lord Justice Millett in considering the issue of the late filing of a witness statement by an expert witness approved of the following guidance as to the future approach of Courts in dealing with the failure to adhere to time limits contained in the rules or the Court’s directions:
“1. Time requirements laid down by the Rules and directions given by the Court are not merely targets to be attempted; they are rules to be observed.
2. At the same time the overriding principle is that justice must be done.
3. Litigants are entitled to have their cases resolved with reasonable expedition. Non-compliance with time limits can cause prejudice to one or more the parties to the litigation.
4. In addition the vacation or adjournment of the date of trial prejudices other litigants and disrupts the administration of justice.
5. Extensions of time which involve the vacation or adjournment of trial dates should therefore be granted only as a last resort.
6. Where times have not been complied with the parties should co-operate in reaching an agreement as to new time limits which will not involve the date of trial being postponed.
7. If they reach such an agreement they can ordinarily expect the Court to give effect to that agreement at the trial and it is not necessary to make a separate application solely for this purpose.
8. The Court will not look with favour on a party who seeks only to take tactical advantage from the failure of another party to comply with time limits.
9. In the absence of an agreement as to a new timetable, an application should be made promptly to the Court for directions.
10. In considering whether to grant an extension of rime to a party who is in default, the Court will look at all times the circumstances of the case including the considerations identified above.”
(j) In this case the trial date is not lost; the aspect of knowledge or negligence of the Defendants are issues to be proven by the Plaintiff and the Court will not in this hybrid system shut out evidence which the Plaintiff contends goes to an issue in the case. The evidence may be open to the legitimate criticism of being theoretical and exaggerated but the Court prefers to leave that for cross examination and closing submissions.
3. THE ISSUES :
3.1 The issues that arise for the determination in this action are relatively simple:
(a) Whether the Plaintiff was attacked by dogs belonging to or controlled by the Defendants at the material date; if so:
(b) Whether the Defendants’ dogs, which attacked the Plaintiff, have a vicious propensity to attack humans:
(i) Whether the Defendants or either of them knew of such vicious propensity of such dogs or dog;
(c) Whether the Defendants breached its duty of care to the Plaintiff:
(i) Was it reasonably foreseeable that the dogs might cause substantial physical harm to persons on the road?
(ii) Whether the Defendants failed to take any or such reasonable steps to guard against such a risk.
4. THE EVIDENCE :
4.1 The Court has had the opportunity to view the demeanor and disposition of the witnesses, the manner in which the evidence was led. It was able to assess the credibility of the witness and in particular the Plaintiff and the Defendants as they gave their oral evidence.
4.2 Oral Evidence :
For the Plaintiff oral evidence was led through: the Plaintiff, Ms. Gillepsie, and Ms. Ramnath. For the Defendant oral evidence was adduced by the Defendants, Dr. Toby, Mr. Welch and Dr. Hutchinson.
4.3 Documentary Evidence :
The parties is agreed a bundle of documents and they were marked prior to commencement of the trial. Witness statements of Michael Narine and Mr. Richard Quamina were admitted into evidence. The latter pursuant to Order 38 r29 RSC.
4.4 From the evidence the simple story emerged of the Plaintiff being called by her sister-in-law Jackie to come by their home on the evening of 12 th May 1992 to collect something that she had brought from the United Kingdom. No precise time was set. The Plaintiff at around 7.00 p.m. drove and parked her vehicle on the incline leading to the Defendants’ home on the rubble from a landslide on the Defendants’ property which made driving past a difficult maneouvre. The Plaintiff got out of her car and walked up the hill. It was then dark and a light was on in the Defendants’ home. However, just before she arrived at the Defendants’ gate, the three dogs pounced on her. Although not stated in her evidence in chief it is reported that initially she swung her handbag at them in her defence. The attack was long enough for her to receive multiple wounds and, for her clothes to be torn off before Mr. Narine saved her by throwing stones at the dogs.
Bleeding and terrified she was taken to the Port of Spain General Hospital. The Defendants arrived later. She was treated by Dr. Toby, a family friend. She was discharged the following day. Notably when Jackie Quamina Cherry arrived around 7.15 p.m. to 7.30 p.m. at her home she noticed personal items of the Plaintiff’s (1) handbag outside the gate, (2) slippers 4ft further away and (3) items of clothes 20ft away from the house. She also noticed that the gate was open or “ajar”. Subsequently the Plaintiff in September 1992 was a lecturer at Valsayn Teachers’ College, in 1993 she was designing and selling T-shirts and helps her husband at Asa Wright Nature Centre. In 1994 she returned to England and made contact with Jackie Quamina Cherry by correspondence. The action was filed one (1) year later.
4.5 It is useful to point out at this stage the impressions created by the witnesses on the Court. The Plaintiff was found to be prone to exaggeration and care was exercised in analyzing and sifting her evidence. Similarly care was exercised in sifting through the evidence of the Defendants. They were found to be credible for the most part, however wavering and hesitant in the description of the mannerisms of their dogs. Mr. Narine was not cross-examined nor Ms. Gillepsie. The Court was also impressed by the frankness of Mr. Leslie Welch and Dr. David Toby. Mr. Welch was an excellent witness in his disposition and demonstrated a clear willingness to assist the Court but was limited in his recollection of events. Ms. Ramnath the only expert witness on the issue of liability was useful. A frank and forthright witness but care was also exercised on examining her evidence which was, mainly hypothetical, as she did not examine the dogs herself. The dogs had died prior to hearing of the trial.
4.6 The attack by “ the three dogs ”:
The Defendants’ deny that their dogs attacked the Plaintiff. In a direct response to the Court’s question “whose dogs were they?” Attorney for the Defendants surmised that there were other dogs in the neighbourhood that could have perpetrated the attack. However such a contention is untenable in light of the evidence in this case.
4.7 The Court prefers to attach weight to the unchallenged evidence in this case:
(a) It is accepted that the Defendants kept three dogs at their premises.
(b) The Plaintiff visited the Defendants’ home on several occasions and was able to identify the three dogs by sight.
(c) She was able to recall that the attack took place in close proximity to the Defendants’ home when she “ was about to reach their gate ”. Although in cross-examination she conceded that she was not in a position to see whether the dogs came through the Defendants’ gate she said that the dogs returned to the Defendants’ yard after she was rescued by Mr. Narine.
(d) The only witness to the attack, Mr. Narine was not cross-examined. Mr. Narine stated in his unchallenged evidence: “ I drew closer and saw that it was a woman that was being mauled by three dogs belonging to the Cherry’s . I grabbed some stones and threw them at the dogs to get them away from the woman. The dogs immediately ran back home through the gateway leading to Cherry’s yard . I took the woman into my house…she kept expressing surprise that the dogs knew her and yet attacked her.”
(e) In any event Mr. Cherry vouched for the credibility of the Plaintiff in this regard when he said he believed she would not tell a lie that his dogs attacked her. He was certainly shocked to have heard it.
4.8 It is difficult in these circumstances for the Court to seriously accept the submission of Attorney for the Defendant that “ there is no sufficient evidence before the Court which has proven the fact that the dogs which attacked the Plaintiff were the Defendants’ dogs, as opposed to other dogs in the neighbourhood .” [7] An unusual emphasis is placed by the Defendants on the misdescription by the Plaintiff of two of the Defendants’ dogs as mixed Rotweiler with Alsatian without appreciation of two material facts. Firstly the Plaintiff, it is accepted, knew the dogs owned by the Defendants and second the description is prefaced by the words “appeared”. Further in any event in the medical report of Dr. Love, he reports that the Plaintiff described the dogs as mixed Alsatian and Doberman. Also assisting in the chain of probabilities are (a) the proximity of the attack to the Defendants’ premises (b) an assertion by a witness that the dogs returned to the Defendants yard and (c) the evidence of Jackie Quamina who returned home that night and observed “that the gate to the yard was ajar” [8]
4.9 In light of the evidence the Court concludes that it is more probable than not that the attack of the three dogs were that of the Defendants.
“Man’s best friend” - The nature of these dogs :
4.10 These dogs were sociable animals. They were not naturally vicious creatures. They were allowed to roam the Defendants’ premises freely and on occasion will be found playing with children of the neighbouring families. The dogs were hardly restrained on the premises despite a kennel being on site. The dogs had the “ full run” of the house. This indeed reflects a high degree of socialization. As stated above even the Plaintiff expressed surprise that these dogs attacked her. It is a safe conclusion from the totality of the evidence that the Plaintiff was confident enough about the non-threatening nature of these dogs to approach her sister-in-law’s home. Indeed on her frequent visits to the home she created the impression of one who saw no danger posed by these animals.
4.11 In her cross-examination, the Plaintiff admitted to “ being accustomed to visiting the house and passing the dogs ”. She admits that the statements made by Dr. Toby about the nature of the dogs were true. Those statements were as follows:
“2. I often visited Tony and Jackie at their home both prior to and after the incident. I am aware that in 1992 they had 3 dogs. During my visits, I had the opportunity to observe each of the dogs. The dogs appeared to me to be friendly dogs and they roamed around the property freely during my visits. Tony and Jackie did not have cause to restrain the dogs when I visited. They did not ever bite or try to bite me or any other person in my presence. In fact, many times I entered Tony’s and Jackie’s yard unannounced while the dogs were on the property. I did not have caused then or any other time to ask either Tony or Jackie to restrain any of the dogs in any way.
3. My three children Chantal, Tina, and Ryan sometimes accompanied me when I visited Tony and Jackie’s house. In 1992 they were 3, 9 and 10 years old respectively. During those visits, I observed that my children often played with the dogs. I was never concerned about their interaction with any of the dogs because I knew the dogs to be friendly dogs from my earlier observations of them. Neither did I ever see any of the dogs harm or attempt to harm any of my children when they accompanied me on my visits to Tony and Jackie’s property.”
4.12 To this she said “ Yes he is telling the truth ”. However the Plaintiff also went on to say “ but whenever we are going to her home we will call ahead they will put the dogs away because they were guard dogs. I was never frightened of dogs before .” The Court is of the view that the Plaintiff overstated her case with regard to the restraining of these dogs while she visited the Defendants. There was a rehearsed element to her focus on these dogs being “guard dogs” and she prevaricated in her response as to whether she herself was intimidated by these dogs. The Court is of the view that she was not. Indeed she admitted that “ I was never frightened of dogs before this ” and that the Defendants had no reason to hold the dogs when she visited to protect her from them. Indeed it is understandable how an attack like this may colour her perception of these animals after the fact, especially when she later admitted in cross-examination.
Q: “ So lets go back to 12 th May 1992 you drove up 53 the Park it was dark you stopped the car and got out you heard dogs barking in the area you knew from what you say in your statement that your in laws kept guard dogs, it did not worry you?”
A: “They had guard dogs you will expect them to be barking that is what they are there for. I did not know at that time they were vicious dogs.”
It is reasonable to infer that (a) the Plaintiff was not threatened by these dogs prior to this attack and (b) the dogs did not exhibit any feature out of the ordinary to suggest that it posed a threat to her.
4.13 Dr. Toby is a classic example of an owner of dogs who knew their dangerous propensities. He admitted to being the owner of six (6) Rotweilers. He stated quite candidly “ they were pets for me and bad for everyone else. I had small children. But the children played with them and not anyone else’s children .” In contrast he described the dogs owned by the Defendants as “ non threatening I could walk in the yard and open the gate. I went in there often .” It was evident that this witness was able to make a distinction between his dogs, which he knew to be dangerous, and the Defendants’ dogs who were so proven. His children visited the Defendants without him. “ The children will be playing in the road or passing up and down so they will be amongst the dogs ”.
4.14 Mr. Welch was also quite candid as a witness. His statements in chief remained unshaken in cross-examination:
“3. Whenever I went over to Tony and Jackie’s home to chat with them, the dogs were untied and they roamed freely around me. None of the dogs ever tried to bite me or anyone else who accompanied me to Tony’s and Jackie’s yard when the dogs were there. I recall having fed the dogs on one occasion when Tony was abroad. I also treated the German Shepard for wounds and maggots on another occasion. I had no reason to believe any of then was aggressive.
4. My son, Andrew Welch, who was 4 years old at the time of the incident, interacted with the dogs both before and after the incident. I used to take him over to Tony’s and Jackie’s home and he moved freely around the dogs. I permitted him liberal access to the dogs and them to him. I had no issues or barriers to concern myself with limiting my son’s movement around any of the dogs or any of the dog’s movements around him. None of the dogs ever bit or attempted to bite or harm my son or myself or anyone else in my presence whenever we visited Tony’s and Jackie’s home or whenever the dogs came across in my yard. I also had no reason to complain to either Tony or Jackie about any of the dogs or to ask them to restrain the dogs whenever I and my son visited Tony and Jackie at their home or whenever the dogs came over into my yard.”
4.15 In cross-examination he emphasized how friendly their dogs were: “ They will be around you could pet and play with them if you put your hand to them they will lick you. They did not jump on me. I do not remember them trying to put their paws on their shoulder .”
4.16 It is therefore consistent and not strange that the owners of these dogs, when they gave their evidence, created the believable impression that these dogs even though purchased with a view to being guard dogs were really not serving their purpose and were not vicious creatures. Indeed the Defendants acknowledged that their house was burgled. That these dogs were too friendly and indeed “ they were more pets than security ”. Jackie Quamina Cherry admitted however that the force of these three dogs can bowl someone over and that she once found a dead Pompek in the yard .
4.17 Mr. Cherry as well described the dogs as playful. They were excitable. They jumped. The dog Brutus was sent for obedience training with a friend working at Amalgamated Securities. However this was not for aggression training but to do tricks such as obey commands of “come”, “stay” and “sit”.
“5. I bought the dogs because I had concerns about security in the area. I intended that they should be guard dogs. However, each of the dogs had a playful disposition and they proved to be a disaster as far as deterring thieves was concerned as I found the house broken into about two or three times while dogs were there.
6. Because each of the dogs had a playful disposition, I did not keep any of them tied up nor did I confine any of them to a kennel. I allowed the dogs to remain loose when people visited the property and I did not have cause to restrain any of them when people entered the yard. To the best of my knowledge none of the dogs attacked or attempted to attack anyone and, apart from the Plaintiff’s claim that the dogs attacked her, I never received any complaints that any of the dogs had attacked or attempted to attack anyone.
7. The dogs did leave my yard sometimes and went over by my neighbour, Leslie Welch. They did this when the gate was open or by climbing the hill at the back of the property and heading towards David Toby’s property. In fact, one of the dogs, Cressida actually had pups on Leslie’s property. Neither Leslie nor any of my other neighbours complained to me at any time about any of the dogs being a nuisance or threat to their person or property.
8. Whenever I left the house, I made an effort to keep the gate closed. I had a padlock on the gate but I hardly locked the gate. Prior to May 1992, Diane visited Jackie and me at the house. When she visited the property, which she did frequently, I never walked out to the gate to meet her. She simply let herself in by opening the unlocked gate, walking through the yard while the dogs were there and making her way to the house. To the best of my recollection, she did not appear to me to be afraid or any of the dogs and she did not ask me or anyone else in my presence to tie up any of the dogs or to restrain any of them when she entered our property.”
In cross-examination he stated :
“When I bought the dogs I intended them to be guard dogs. They did not turn out to be that because of the frequency of people coming to the house I think that was the reason, there was too much traffic in the house. They got accustomed to visitors.”
4.18 Moreover of significance is the expert witness’ evidence Kristel Marie Ramnath. She makes some helpful admissions which assist in determining the nature of these dogs.
4.19 She had no information to suggest that the observations of Mr. Toby or Mr. Welch were unrealistic or false. She admits that based on their information the dogs were socialized and mainly well adjusted. Importantly Ms. Ramnath concedes as follows:
“Would you agree Ms. Ramnath as I said as a lay person in our field if a dog had been well socialized in the early stages 18 week period if a dog is well socialized and also given obedience training it would be by reason of the socializations and obedience be particularly a well adjusted dog? Yes.
If a dog was a dominant dog, we are speaking hypothetically, if a dog was a dominant dog and found itself in the company of other dogs and had been well socialized and trained in obedience but not trained to attack from your experience from animal behavior and courses of study would you say that that dominant dog in that pack of 3 dogs well adjusted socially by the process of socialization particularly adjusted in obedience, will you say that the natural inclination of the dominant dog will be to attack? No.”
4.20 Based on the evidence it is more probable than not that:
(a) The dogs were playful and sociable.
(b) The dogs interacted freely with the children and neighbours and visitors of the Defendants.
(c) The Plaintiff herself freely had access to the home and that if the Defendant had to restrain the dogs it would have been to assuage the fears or phobia of her husband rather than her own anxiety or apprehension of danger of the dogs.
(d) By nature they will bark, they will be excitable; they will jump on visitors. They were strong enough to bowl a person over.
(e) The dogs by nature according to the expert evidence were not vicious and did not have the inclination to attack.
(f) They will attack if provoked and to protect their territory.
The state of the premises :
The property was fenced. The Defendant indicated that it was done to keep the dogs within the compound. The gate however was not locked although kept closed by the Defendants. It is possible however having regard to the evidence of Dr. Toby that even though the Defendants would have kept the gate closed it could have been opened by one of the children in the neighbourhood. At the material time part of the fence collapsed with a landslide to the front of the property.
The propensity to escape :
Dr. Toby admitted that the Defendants’ dogs would be out in the road as the Defendants’ “ had a gate that was closed and sometimes the children were in and out and the dogs will be out .” Mr. Welch stated in cross-examination “ on occasion I saw them roaming around in the street, I can’t remember when it actually stopped .”
Mr. Cherry in fact conceded than the gate was not always closed and the dogs would leave the premises if the gate were open. However he claimed that when he is leaving the property he will ensure the gate is closed.
LIABILITY :
Liability for an attack by animals can exist either in the common law of scienter or in negligence.
5. COMMON LAW SCIENTER :
5.1 In an interesting exchange in cross-examination of the Plaintiff she stated:
Q: “Each of them (Toby and Welch) say that they knew the 3 dogs owned by Jacky and Tent and each of them say that the dogs were friendly and playful I put to you that that was the case?
A: If they say so that is what they are saying. Dogs can be playful but they can attack. Whether they were playful or not they attacked me”.
5.2 Indeed the Plaintiff’s real position is that even though these dogs were playful, dogs can attack. This is in reality the knob of this case.
5.3 To establish liability in a common law action of scienter the Plaintiff must prove that the dogs had a vicious propensity. That each dog had the propensity to bite humans and that the Defendants knew of this particular vicious propensity.
5.4 This aspect of strict liability attaching to knowledge of the vicious propensity is borne out in several authorities.
5.5 The attack by the mongrel mastiff in Mason v Keeling did not attach liability to the Defendant. “Now for anything that appears the contrary, the owner might not have had this dog but one day or two before and did not know of this fierce nature and then the dog because the door was left open ran out and bit the Plaintiff; it will be very hard to subject this Defendant the owner to an action for it. Otherwise if the Defendant had known before that this dog was of such a fierce nature, for he ought to have kept him at his peril…” The mere habit of bounding on people playfully without attempting to bite would not sustain an action. See Nurse v Hailey and Anr [1920] LRBG 174.
5.6 There must be a distinction between knowledge of propensity to bite and knowledge of propensity to bite mankind. It is the latter that grounds liability. See Glanville v Sutton [9] in which Scrutton LJ stated: “ I am not aware of any case which justified the proposition that if one knows that an animal is dangerous in any one respect one is liable if it proves dangerous in another respect…I think the point was dealt with by the Court of Appeal in Manton v Brocklebank where Atkin LJ said “the owner of a dog is not liable for its trespass and damage without proof of scienter of a special mischievous propensity to do such damage” The words to be emphasized in that passage are “to do such damage” “which are not to do other damage” and it appears to me that Atkins LJ has exactly defined the kind of scienter that must be proved.”
5.7 Lord Denning MR. stated: “At common law when a dog bit a man, the owner or keeper of the dog was strictly liable if he knew that it had a propensity to bite or attack human beings.” See Cummings v Granger [10]
5.8 A useful summary of the principles is found in Sycamore v Lye [11] :
“I will take from one of the leading cases what Willes J., said about this liability in Cox v Burbidge (1) (13 C.B.N.S. at page 439):
“The distinction is clear between animals of a fierce nature and animals of a mild nature which do not ordinarily do mischief like that in question. As to the former, if a man chooses to keep them, he must take care to keep them under proper control, and if he fails to do so he is taken to know their propensities and is held answerable for any damage that may be done by them before they escape from him and return to their natural state of liberty.”
Under this heading such animals as tigers, gorillas, various kinds of monkeys, elephants, and zebras have been held to be animals as to which a person keeping them takes that responsibility. I will only add to what Willes J., said what Lord Esher said in Filburn v People’s Palace and Aquarium Co. (2). Speaking about an elephant he said (25 Q.B.D. at page 260):
“It falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circumstances, unless the person to whom the injury is done brings it on himself.”
Under that heading a man who stroked a zebra and received an unexpected kick was held not able to recover: Marlor v Ball IB (3).
As to the second class, and this is the class in which a dog comes, Willes J., said in Cox v Burbidge (1) (13 C.B.N.S. at page 439):
“As to animals which are not naturally of mischievous disposition, the owner is not responsible for injuries of a personal nature done by them unless they are shown to have acquired some vicious or mischievous habit or propensity, and the owner is shown to have been aware of the fact.”
It is not for the jury to say whether dogs are of that class, because since the time of Lord Holt the law has taken notice that a dog is not of a fierce nature, but rather the contrary; consequently, before you can make the owner of a dog liable in any particular case, you must show that, the class of dogs not being called of a fierce nature, this particular dog is of a fierce nature, and, secondly, you must show that the owner of the dog knew it. That has been applied in this way. You keep a dog, you allow him to run in the street; in the street he bites a child; you are not liable, unless it be shown that that particular dog was of a ferocious character, dogs ordinarily not being of a ferocious character, and that you knew of the dangerous character of that particular dog.”
“Liability for damage caused by the bite of a dog is not, in my judgment, confined to the cases where it has to be made out that a dog had, by reason of its ferocious character known to the Defendant, to be taken out of the class of tame animals and put into the class of wild animals. A dog ordinarily is presumed to be a tame animal, and its owner is not responsible for what it may do in the way of biting, but if it has proved itself to his knowledge not to be of the presumed tame character which the law attributes to dogs, then he is liable absolutely if it escapes from his control and causes damage by way of biting a human being. It does not matter whether he has taken the strongest and the greatest precaution that might be taken to keep it under control, his liability is absolute, just like the liability of the Defendant in Rylands v Fletcher (5).”
5.9 In Talents v Bell and Goddard [1944] 2 AER 476 Findlay LJ stated:
“I think it quite plain that if you are going to make out a case in respect of damage done by a dog, you must establish scienter; that is to say, you must show that the Plaintiff knew that this particular dog, not dogs in general, was a dog which, by reason of its habits was likely to cause damage by reason of the fact that it had in the past done the same sort of thing which it was alleged to have done in the case in question. The most familiar illustration is, perhaps, that of a dog biting a human being. In that case the meaning of the doctrine of scienter simply is that it must be shown that the owner knew that the particular dog had a propensity that way.”
5.10 Usefully and conclusively Edmund Davies LJ summarized the principles which he opined amounted to legal truisms in Draper v Hodder [12] :
“The Defendants’ liability for the terrible injuries sustained by the infant Plaintiff was originally sought to be based on the grounds of (1) scienter and (2) negligence. These differ in several important respects. The former is considerably older and, ‘though meant to give a rough expression to the idea of negligence’, as Professor Glanville Williams put it in his classic work on Liability for Animals, gives rise to strict liability. A person keeping an animal ‘mansuetae naturae’ which he knows has propensity to do a particular kind of mischief and is therefore liable without proof of negligence for any damage caused by the animal’s acting in accordance with that known propensity. But, to render the Defendant liable, proof must be directed to his knowledge regarding the propensity of the individual animal whose activities have given rise to the institution of legal proceedings.
Again, although many dogs have a propensity to worry sheep, to fix a dog-owner with liability for sheep-worrying it must be proved (a) that his dog had previously worried sheep or attempted to do so, and also (b) that he was aware of that fact. It has further to be established that the dog-owner had knowledge of propensity to do the kind of damage which gives rise to proceedings being instituted. For example, knowledge that a horse had previously bitten a goat or other horses would be insufficient to fix its owner with liability if it bit a man ( Osborne v Chocqueel and Glanville v Sutton & Co. Ltd. ).”
5.11 All the authorities cited speak with the same voice. To succeed in a common law actions of scienter:
(a) There must first exist a vicious propensity in the dogs;
(b) That vicious propensity or ferocious character must be distinct from the ordinary character of dogs;
(b) That propensity must be to do the act complained of, in this case bite mankind;
(c) The animal must have displayed this propensity previously or that the owner must have had knowledge of it.
5.12 It is no doubt that every case will turn on its facts. In Tallents v Bell & Goddard [13] , the dogs had attacked some rabbits. The Defendants never knew that the dogs attacked rabbits before and had no previous complaints. The Court upheld the trial judge’s decision on the facts that the Defendants were not liable. In Barnes v Lucille [14] the dog which bit the sixteen year old Plaintiff was kept in a run underneath the workroom to which the Plaintiff were employed. The dog had pups. The owner of the dog knew that this might be the reason why it attacked. It was demonstrated before that the bitch made efforts to get into the work place not in play but in anger trying to get at the occupants. The Plaintiff therefore discharged its burden of proof to establish liability. In Nurse v Haley [15] , the “brown dog” was always kept chained, the dog was a watchdog, the Plaintiff was warned by the Defendant of the nature of the dog. It is not difficult in those circumstances to ascribe knowledge to the Defendant of the mischievous disposition of the dogs. In Worth v Gilling [16] liability was affixed to the owner where on the facts the dog was in the habit of jumping at everyone who passed his kennel endeavoring to bite and the Defendants knew it. Mere playfulness again was not an attribute of vicious propensities. See Fitzgerald v Cooke Bourne [1963] 3 AER 40. Indeed the scienter action failed in Castillo v Smith [17] in circumstances where there was some evidence that the German Sheppard’s were “set” on the Plaintiff but the Court was not satisfied that there was sufficient evidence to demonstrate that the dogs were vicious by nature. So too in Draper v Hodder in spite of the abundance of evidence of a vicious attack on the Plaintiff by a pack of Jack Russell Terriers there was no success in common law scienter action without the key ingredient of knowledge of the mischievous propensity previously shown.
5.13 In light of the foregoing the Plaintiff’s action on common law scienter cannot succeed:
(a) The dogs were not vicious by nature;
(b) The dogs were conversely playful and would jump playfully;
(c) The dogs were well socialized and according to the expert well adjusted;
(d) There is no natural inclination to attack;
(e) There was no prior complaint by anyone least of all this Plaintiff of any;
(f) There was no knowledge by the Defendants of any vicious streak or unnatural propensity to bite humans.
6. NEGLIGENCE :
6.1 This however does not put an end to the matter. Interestingly the judgments in Draper suggest a link between the common law action of scienter and negligence in the form of the propensity to do harm. Edmund Davies LJ stated:
“It might be considered that Earle C.J. was thereby wrongly dismissing an action in negligence on the ground that proof of ‘scienter’ was lacking. But such criticism would not, in my judgment, be well founded, for it ignores that last two words in the passage cited, words which (as Lord du Parcq said in Searle v Wallbank) ‘ were not superfluous’. The Defendants’ knowledge of ‘the nature of the beast’ which is basic to ‘scienter’ liability is also directly relevant both to the questions of whether he was negligent at all and furthermore, if he was, whether he ought reasonably to have foreseen the damage which in fact resulted therefrom. That is not, of course, the same as saying that proof of ‘scienter’ is indispensable in an action for negligence. As Pearson LJ put in Ellis v Johnstone :
‘ For the action of negligence, it is sufficient if the Defendant knew, or ought to have known, of the existence of the danger, which does not necessarily arise from a vicious propensity of the animal, although perhaps some special propensity is required .’”
6.2 The inquiry in negligence is therefore different. Unlike the scienter action the focus in negligence is not on the knowledge of a vicious propensity but on a risk of danger which a prudent person must guard against. Not being taken out of the category of tame animals, therefore has the Defendant put the dogs in such a position that a reasonable man will know that it was likely to cause danger and therefore ought to regard himself as under an obligation to do something by way of precaution? This test has been stated in different ways in the authorities cited. Hence the fundamental distinction between an action in negligence and scienter is that the Plaintiff need not prove knowledge of a particular propensity or knowledge of the kind of injury actually inflicted, but whether broadly speaking the type of physical harm was within the range of likely consequences. Put shortly there was a foreseeable risk that these three dogs will roam at large biting or cause damage to an adult if and when it encountered an adult. If there was a foreseeable risk the Defendants should guard against it using such skill and care as is reasonable.
“Ought the Defendant (with many years of practical experience of breeding and training Jack Russell Terriers) reasonably to have anticipated that they might dash off and, having done so, were not likely to cause physical injury to the infant Plaintiff? I have proceeded on the following basis: (a) that the infant Plaintiff might well be in the vicinity and was accordingly a person whose welfare should have been borne in mind; and (b) that the proper test in negligence is not whether the particular type of physical harm actually suffered ought reasonably to have been anticipated, but whether broadly speaking it was within the range of likely consequences
I have not overlooked the line of authorities to the effect that the mere possibility of some damage resulting is insufficient to impose liability for negligence. Nevertheless, if injury of a substantial kind ought reasonably to be foreseen as the result of one’s negligent act or omission, it is nihil ad rem that what actually follows is not precisely that which one should have foreseen.” [1]
6.3 Returning to Drape r, as in this case, it was impossible to prove a known propensity to attack humans. However the Court of Appeal upheld the trial judges finding that the owners were negligent in failing to take reasonable care to prevent the pack of terriers from escaping from his land. That conclusion was based on the evidence of a veterinary surgeon and a dog breeder and assented to in a minor degree by the Defendants’ veterinary surgeon. Davies LJ stated:
“ There can I think be no doubt that certain modern authorities show clearly that an owner or keeper of an animal may quite apart from the scienter rule be liable for damage done by that animal if the owner or keeper puts it or allows it to be in such a position that it is reasonably foreseeable that damage may result.”
6.4 Davies LJ adopted the following observations in Sycamore , Ellis v Johnstone and Searle v Wallbank which provide the touchstone of liability in negligence:
“ The Defendant, may be liable for the conduct of a dog which has not been taken out of the category of tame animals if he puts it in such a position and in such circumstances as to render it likely that the dog will get excited, will lose its temper and will cause damage to people lawfully passing along the highway.” Per Greer LJ [19]
“For the action of negligence it is sufficient if the Defendant knew or ought to have known, of the existence of the danger, which does not necessarily arise from the vicious propensity of the animal although perhaps some special propensity is required .” Per Pearson LJ. [20]
“Nevertheless Lord Atkins proposition will be misunderstood if it is not read as subject to two necessary qualifications: first that where no such special circumstances exist negligence cannot be established merely by proof that a Defendant has failed to provide against the possibility that a tame animal of mild disposition will do some dangerous act contrary to its ordinary nature and secondly, that even if a Defendants’ omission to control or secure an animal is negligent, nothing done by the animal which is contrary to its ordinary nature can be regarded in the absence of special circumstances as being directly caused by such negligence.” Per Lord du Parcq.
6.5 The special circumstances and special propensity described in the judgments will be worked out from case to case, as it is largely a fact driven exercise. However the warning in the working out of liability of negligence in cases such as these is “not to allow the contagion of scienter to place unreasonable limits on proceedings brought in negligence.” In other words emancipated from the shackles that these dogs were not vicious and had not exhibited a propensity to be vicious in the past there are no reins on the Defendants’ forseeability and the lager question is to be addressed: ought they to have realized a risk of real harm to users of the road if the dogs had left the Defendants’ premises? Davies LJ posited “ for example he could well be bowled over by an onward rush of the dogs to the dustbins and thereby or by their subsequent antics (however innocent) sustain no insubstantial injury to face or body for which the Defendant ought clearly to be made liable.”
6.6 The Plaintiff must demonstrate a risk of injury or special circumstances, which will have prevailed on the Defendants’ to exercise more care. This question is to be answered by carefully analyzing the evidence.
6.7 The nature of the dogs is that they have strong territorial instincts. Ms. Ramnath states in her evidence in chief:
“Where a dog is kept with other dogs, i.e. where dogs are kept in a pack, there is a natural animal hierarchy. There will be one dominant dog who the other dogs will follow. Furthermore if the dogs are not kept separately from each other they will be more likely to be bonded as a pack.
Although many of the wild, survival-orientated instincts have been suppressed through domestication, most dogs retain a territorial and predatory instinct to a varying degree. Natural pack behaviour will lead a dog to protect the home, which it considers the pack’s communal den, against undesirable intruders. In most instances, a dog will look to its human owner, the pack leader, for instruction on how to behave towards a stranger. A dog will often have its own personal space within the communal territory and may want to defend its privacy.
Most dogs are naturally territorial in nature i.e. they will act to defend the yard within which they are housed, their food and their owner. However, if they are specifically trained for that purpose, their territorial instinct will become more pronounced to the point where they are highly likely to plunge at anything that moves including dogs.”
6.8 In cross-examination despite the fact that the dogs were socialized and “well adjusted” the temperament of the dog stems from genetics and the environment. Hence even if you shape the dog’s environment, that is to say expose it to the human habits and routine, “you have to consider the dog’s genetics”.
6.9 In analyzing the evidence of both Mr. and Mrs. Cherry they were very guarded in their description of the potential of their pets. Based on Mr. Cherry’s evidence in cross-examination the Court is satisfied that: that the dogs will jump and bark, the dogs were originally intend to be guard dogs. Mr. Welch assisted the Court be recalling that there was a “beware of the dog” sign on the Defendants’ wall . The dogs were quite creative and innovative in finding ways to leave the Defendants premises. Prior to the Defendants raising the fence the dogs will “scale the mountain” to get at the Toby’s dogs. Indeed in what can only be described as Mr. Cherry’s fascination and indeed pride in his dogs he stated, “ It is amazing how they did that”. It is noted that at the time of the incident there was a landslip to the front of the Defendants’ home that brought down the fence. It was surmised by the Defendants that the slip was too steep for the dogs, however equally with an exploring dog capable of scaling the mountain to the fascination or admiration of his owner even this land slip was an exposure yet another means for the creative escape from the premises by their dogs. He admitted that although he made an effort to keep the gate closed “ in reality the gate was not closed.” The dogs also were having standoffs with the Toby’s dogs attempting to confront one another.
6.10 More importantly it is Mrs. Cherry who accepts that the dogs will bark and rush to the gate if a visitor is calling. They barked at other dogs. She found a dead Pompek in the yard. The Court accepts that it was the Defendants dogs that killed the Pompek. Indeed Mr. Welch had to rescue his own dear Pompek “Chip Chip” from the Defendants’ dogs. She would put Cressida on a leash when she was taking the dogs in public, that is, to the vet. It is accepted that Cressida was the one of the three that liked to roam out of the Defendants’ premises. The dogs according to her served as deterrents. Indeed very importantly she indicates that the fence was to keep the dogs in the property rather than to keep intruders out. Indeed she went further to say that it is possible that these dogs could knock over a person because they were large dogs. Indeed when it was put to this witness that one can knock over someone then three could damage someone, this witness looked resigned in her answer “it could knock him or her over.” Indeed she went further to volunteer “it is not reasonable to have three large dogs roaming the neighbourhood.” It is safe to conclude that this witness was alive to the risks that these dogs posed to members of the pubic if they left the yard unattended. Having regard to their size and the sprightliness they did pose a risk as far as she was aware and for this reason the fence was erected to “keep them in”. She indicates that subsequent to fencing the property the dogs will be out of the premises if the children will open the unlocked gates.
6.11 However the evidence of Mr. Welch and Dr. Toby suggests that these dogs even after the incident roamed out of the Defendants’ premises. Indeed it is amazing to know that Cressida did actually have her pups in another yard suggesting that for that dog her sense of territory extended way beyond the borders of the Defendants’ premises. Cressida most certainly displayed a strong and obstinate tendency to roam. They must have found a way to escape from the Defendants premises, which the Defendants well knew. Indeed because there were “no complaints” according to Mrs. Quamina Cherry the Defendants took no steps to padlock the gate or ensure that the gate will not be opened in their absence or indeed to ensure that the gate was closed at all. It is very likely, notwithstanding the risk of injury admitted by Mrs. Quamina Cherry that may occur if these three larger dogs were roaming the street, that they were not as vigilant as they should have been with regard to the securing of their gate. The fact remains that the gate was open when Mrs. Quamina Cherry returned home on 12 th May 1995. The Plaintiff did not open it and this was not suggested to her. Indeed the Defendants’ case was that the Plaintiff had not arrived at the Defendants’ gate when this attack took place. It is reasonable therefore to conclude that the Defendants who did not secure their gate with any padlock, either left the gate open through the negligence of either of the Defendants when they left that morning, or it was opened by one of the children in the street, further nothing rules out the dogs' escape through the landslip.
6.12 It is noted that the securing of the gate was of no concern to the Defendants because it was the house that needed to be secured. The Plaintiff has therefore demonstrated on a balance of probabilities that it was unreasonable not to have padlocked the gates to secure them or keep them closed so as not to permit the dogs access to the road exposing the public to the danger of substantial harm created by a pack of three not insubstantial dogs. Dogs, which Mrs. Ramnath said, will attack if provoked and simply defend its territorial space from intruders. Extraordinarily the Defendants accept that special circumstances may also exist in this case where the attack took place in the night and coupled with the sound of the Plaintiff walking up the road over the rubble left by the landslide would have been annual sound for the dogs. [21] . Based on the evidence of the Defendants such circumstances will be visited with the dogs rushing towards the gate barking excitedly for the least with the territorial instinct and will lunge and attack. Furthermore it is accepted that at that time the entire property was not properly fenced as a portion was destroyed by the landslide.
6.13 The action in negligence succeeds.
7. DAMAGES :
General Damages:
7.1 The Court is guided in its assessment of general damage by the traditional principles laid down in Cornilliac v St Louis [22] bearing in mind: what falls to be taken into account in assessing the general damages to be paid to the Plaintiff; any discernible trend in this country or alternatively, in like Caribbean or other jurisdictions which may serve as a guide for making the assessment and the depreciated value of the Trinidad and Tobago dollar.
The nature and extent of the injuries sustained :
7.2 As described above the attack was traumatic. The Plaintiff suffered several wounds about the body for which she received stitches, “punctured lesions” as described by Dr. Toby. She was on visual inspection by Dr. Toby, dirty and bleeding from some of the wounds. She was very shaken. The wounds were multiple but not deep. There were some abrasions from where she fell to the ground. Those were cleaned and dressed. The Plaintiff was bed ridden for three (3) weeks.
7.3 As horrifying as it may sound, being attacked by three dogs, the reality is that the injuries luckily for the Plaintiff were comparatively speaking not major injuries. There were no broken bones or fractures, no disability, no reduction in the use of her limbs, no permanent damage to her bodily functions whatsoever; no muscle or nerve injury no permanent or partial physical disability and no continuing pain. Indeed these physical injuries pale in comparison to the injuries considered in the authorities cited by the Plaintiff. Dr. Toby’s account of the injuries corroborates the view that these injuries were not very serious relatively speaking.
The nature and gravity of the resulting physical disability :
7.4 There was scarring on the Plaintiff’s legs, buttocks, back both arms, back and front of the neck and vulvae area. There were multiple skin lacerations and most of these were sutured. In Dr. Brennen’s first medical report dated 13 th July 1994 he stated: “ The pattern of multiple small scars .” The individual scars were small and he stated that it could not be significantly improved by surgery.
7.5 In his second report dated 23 rd January 2004 the visibility of the scars had reduced:
“The scars on the back of her neck were soft and flat and within the hair bearing skin . They are not visible . The scars on the front of her neck are 0.5 cm long and slightly discolored. On the right arm the scars on the front of the elbow are slightly pale in color, as is the case on the inner aspect of the upper arm. The scars previously noted on the lateral aspect of the forearm and the outer aspect of the upper arm are only visible on very close inspection .” Indeed at the trial the Plaintiff presented herself as a charming and pleasant woman with no visible signs of disfigurement. The scars that were described by Dr. Brennen according to him settled well and most of them are difficult to see unless they are specifically looked for.” Although the prognosis is that the scars will be permanent and will constitute “some degree of disfigurement” it is in the context of minor scars about the body most of which the Court is satisfied, are visible only to the eye that is searching for it.
Pain and suffering :
7.6 It cannot be doubted that the Plaintiff experienced great distress, pain and suffering. This was not one bite, but multiple bites. This was not an attack by one dog but a pack of three, one of which was Brutus, a stocky and large thoroughbred. These were bites not on the hand or arm but all over the body and in sensitive areas [23] . This was not playtime; it was a vicious attack as the Plaintiff clothes was shredded to pieces. This was an attack in the dark. One can only imagine what horrors were in the Plaintiff’s mind at that time. The Plaintiff is indeed lucky having regard to the nature of the wounds that there was no mauling or tearing of the flesh as pertained in Hodder
7.7 The Plaintiff was sore between the legs where she was bitten and had difficulty urinating. This Court accepts that an attack such as this, albeit not with the ferocity as in Hodder , will emotionally if not physically scar the human mind as it did this Plaintiff. This Court accepts that this event affected the Plaintiff emotionally however the psychiatric reports must be treated with caution. The Plaintiff is prone to exaggerating her claim. She has been diagnosed as suffering from dog phobia. Indeed this was not apparent prior to this attack. Indeed the Plaintiff testified as to the anxieties of her estranged husband Richard, who was terrified of dogs. It is also a phobia, which seems infectious as her good friend also became fearful of dogs because of her paranoia. Having said this, the Court will be wary in accepting any exaggeration of the Plaintiff’s actual physical or emotional damage and will carefully examine her evidence against the backdrop of the other doctor and oral evidence in this case.
7.8 The conjoint effect of the reports of Dr. Kerr,Mr. Love and Dr. Scott is as follows:
(a) The Plaintiff is wary and trembles at the sight of large dogs and not dogs generally.
(b) Indeed there is no such anxiety if the dogs are on a leash or are put away. In essence the Plaintiff still harbors a fear on the sight of roaming dogs and of a repeat of the attack.
(c) She has to be accompanied by a friend to enjoy the outdoors. Not that she can no longer enjoy it or is physically incapable of enjoying her hobbies or the outdoors.
(d) She was depressed and anxious when she spoke about the incidents to her doctors.
(e) She finds it embarrassing to wear shorts and revealing clothing.
The reports are however deficient in that they do not indicate the length of time that the Plaintiff was actually under observation by these doctors; there is no or no sufficient analysis or treatment of her depression and sadness caused by her break down in the marriage with Richard Quamina; the reports suggest that the Plaintiff becomes an emotional wreck when she recounts the events of the incident. But this could not be further from the truth in terms of her demeanor in the witness box and her calm composure in giving the evidence. Indeed at one pause in the cross-examination while giving evidence on the attack; the Court invited the Plaintiff to have a seat but she preferred instead to stand and revealed a quiet composure and was emotionally stable. She confessed to Mr. Love that she may “in the future have to deal with the problem in order to improve the quality of life.” Indeed her tearfulness and general anxiety disclosed to her doctors was much as a result of having to rehash the litigation rather than a permanent effect of the accident itself on her personality.
7.9 It is significant to note that none of the psychiatrists committed themselves to a diagnosis or positive conclusion that the Plaintiff underwent a personality change. The diagnosis is that she has suffered a Post Traumatic Stress disorder. The Court does not get the impression from the report that it is permanent, indeed it is treatable as explained by Dr. Hutchinson. J.N. Scott described it as a “mental reaction.” Indeed the mental anxiety is triggered by large roaming dogs.
Medical reports of the Plaintiff :
7.10 Attorney for the Defendants submitted that she suffered from a pre morbid personality. Having said that, the Defendants must take the victim as they find her and even though she reacted negatively to some treatment this goes towards demonstrating that her phobia is not acute rather than non-existent.
7.11 The Court however does not agree that the phobia as demonstrated to the Court seriously impacted upon her line of work. She must exercise caution like anyone else and indeed any stray dog poses a danger to any human with the off chance that it may bite. Ironically her phobia of dogs does not appear to be any different from that which her estranged husband exhibited.
7.12 In arriving at a suitable award in the circumstances, the Court took into consideration the authorities referred to by the Plaintiff’s Attorney-at-Law. The approach recommended in Peter Seepersad v Theophillus Persad and Capital Insurance Limited PC 86 of 2002 is to examine the possible range of awards in comparable actions.
7.13 Each case must however be determined on its own particular facts. While previous cases can only serve as a general guide the Court must do the best it can to compensate the Plaintiff in light of her proven disability. In light of the proven disability the Plaintiff’s claim for general damages is inexorably high. An appropriate award in this case is within the range of $20,000.00 to $70,000.00. The Court has had regard to the following authorities: Brooks v Oxley [24] , Lorraine Whitehall and Ors v Philip Decle [25] , Judith Duncan v Ramah Goal [26] , Dalton Eugene v T&TEC [27] The following features have been taken into account with regard to this Plaintiff: the nature of the attack, the resulting injuries the impact on her personality, her anxieties at the sight of large roaming dogs and the level of embarrassment she feels having regard to her minor scarring.
7.14 Reviewing all the evidence and bearing in mind that “a mere arithmetical calculation will not reflect the dynamics of the exercise but that the Court should strive as far as humanly possible for a high measure of uniformity of awards” the sum of $48,000.00 is eminently fair and reasonable in all the circumstances. The Court has given due weight and regard to the nature of the attack, the trauma of that incident, her stay at the hospital and anxieties and fears of future attacks.
The extent to which pecuniary prospects have been affected :
7.15 The Court is not satisfied that the Plaintiff’s pecuniary prospects have been affected. The Plaintiff presented herself as genuinely a “worrier” Added to the mix was her separation from her husband, which was not adequately addressed, in any of her medical reports and which clearly from her contemporaneous letters written to the Defendants cross-examination had an impact on her life and state of mind.
7.16 The evidence clearly demonstrates from her own testimony and that of Richard Quamina that she was able to work after the incident. The Court does not accept as rational that her stress and depression caused by the incident resulted in her taking a “career break” . As indicated earlier the Plaintiff presented herself as composed and articulate woman and corroborated by all her medical reports. The Court is satisfied that whereas the sight of large dogs, which are unattended in the public domain, may increase her level of anxiety there is nothing to suggest that this has inhibited her chances of pursuing her career and her hobbies including her passion for photography. She has been able to travel to exotic countries in pursuit of her pleasure or employment. Indeed it is reported in Mr. Love’s report that she has to take charge of her life. The Plaintiff makes a quantum leap from the attack to the impact on her career without any or any credible evidential foundation.
7.17 This Court does not accept that any award for future loss of earning or loss of pecuniary prospects is appropriate having regard to:
(a) The Plaintiff’s penchant for exaggeration of her claims;
(b) The Plaintiff’s obvious comfort in dealing with recounting of events of the incident;
(c) The Plaintiff’s condition being one, which is a heightened or acute awareness of one surroundings leading her to take greater care in the execution of her duties;
(d) The absence of any medical evidence to suggest an inhibition on her inability to work;
(e) The evidence to the contrary to suggest that she is carrying out her business and work. She is able to explore an alternative career path of macro photography which from her testimony and demeanor provides a great degree of satisfaction for her. There is no evidence to suggest for example that “Enyard” is anything but a productive enterprise;
(f) The remorse she feels for her robust and fearless attitude to dogs is just that and cannot be translated into a justifiable cause for any diminution in her earnings or earning capacity.
Special Damages :
7.18 The Plaintiff’s claim for special damages is pleaded as follows:
1) T shirt $70.00 2) Cotton Pants $130.00 3) Leather slippers $20.00 4) Gold Chain & Locket $160.00 5) Creams and ointments for scarring $400.00 6) Medical expenses to:
15.5.95 (representing Medical Report of
Michael D. Brennen, Plastic Surgeon13.07.04 (£97.00):
Psychiatric Report of A. Kerr, Consultant Psychiatrist 26.07.94 (£150.00); and Consultation with
Dr. C.E. Cassidy (£85.00) £332.00 7) Travel Expenses in respect of doctors’
visits set out in 6 above £15.00 8) Medical expenses from 15.5.95 to present 13.3.06
(representing Psychiatric Report of J.N. Scott,
Consultant Psychiatrist 20.01.04 (£200.00); Cognitive
Behavioural Psychotherapist 22.01.04 (£200.00); and
Medical Report of Michael D. Brennen, Plastic Surgeon 23.01.04 (£200.00) £600.00 9) Travel Expenses in respect of doctors’ visits set out in 8 above. £15.00
LOSS OF EARNINGS
(From date of accident to trial)
12 th May 1992 to 12 th June 1992 $2000.00
Ireland
September 2002 to September 2003 (Career break for 1 year due to severe depression) £20,000.00 30 September 2003 to present Part time Teacher 3 days/week at net salary of £1,047 per month
(i.e. £12,564.00 per annum)
Loss of net earnings (30 months x £1,666.67)
Minus (30 months x £1,047.00) = £18,589.99 7.19 Special damages are generally those past pecuniary losses calculable at the date of trial. Generally, special damages must be specifically pleaded and proven. However the Courts generally tend to take a realistic approach with regard to the proof of special damage and accept that particularity must be tailored to the facts. See Ratcliffe v Evans [28]
7.20 The Court is satisfied that the special damages claimed in number 1-9 is have been proven and are reasonable and awards the total sum of $23,872.74. The Defendants have indicated that there is no objection to the payment of 10 further therapy sessions at £100.00 each. The court is satisfied that she will need some therapy to overcome the emotional difficulties and also awards that sum.
8. CONCLUSIONS AND ORDER :
8.1 In conclusion the Court reverts to the questions it asked of both parties, the answers to which in the Court’s view neatly disposes of the issues in the case. Five of those main questions were:
Q1: Is it still open to the Court to find that this attack on Ms. Drayne was committed by the Defendants’ dogs, based on the evidence?
A1: The simple answer is no. The Court is of the view that the Defendants’ dogs attacked the Plaintiff.
Q2 & 3: Would it be a correct conclusion to draw on the evidence that everyone expressed some element of surprise that it was the Defendants’ dogs had attacked the Plaintiff, assuming that they had attacked her? If so, what inference is the Court to draw from that expression of surprise?
A2 & 3: Yes they did. This in the Court’s view was a sufficient indication of the Plaintiff’s failure in its common law action of scienter but does not immediately shut her out the door of an action in negligence.
Q4: What inference is the Court to draw from the dogs being outside their owner’s premises prior to and subsequent to 1992?
A4: The Court is satisfied that the dogs roamed and were allowed to roam. No sufficient care was taken or exercised by the Defendants to keep those dogs within their territorial space.
Q5: Based on the evidence what was the reasonable foreseeable result if the dogs were allowed to go beyond the owner’s premises?
A5: It was a foreseeable risk that these dogs because of their size and excitable behaviour as a pack can cause some harm to humans. It was a risk the Court holds was apparent in the minds of the Defendants and they failed to take appropriated steps, to prevent injury as a result of these large dogs roaming the street.
In the circumstances the Plaintiff’s claim for negligence succeeds.
8.2 The Court orders that:
(a) There be judgment for the Plaintiff against the Defendants.
(b) The Plaintiff’s damages have been assessed as follows:
(i) General Damages assessed in the sum of $48,000.00 with interest thereon at the rate of 6% per annum from 15 th May 1995 to 28 th September 2000 and 12% per annum thereafter to the date of judgment.
(ii) Special Damages assessed in the sum of $23,872.74 [29] with interest thereon at the rate of 3% from 12 th May 1992 to 28 th September 2000 and 6% thereafter to date of judgment.
(iii) The sum of $11,770.00 for future therapy [30]
(c) The Defendants are to pay to the Plaintiff her Costs certified fit for one (1) junior advocate Attorney-at-Law to be taxed in default of agreement.
(d) There be a Stay of Execution of 28 days from the date hereof.
(e) It is Further ordered by consent that leave be and is hereby granted to the Plaintiff to withdraw the sum of $20,000.00 as Security for Cost as ordered by the Honourable Mr. Justice Shah on the 19 th day of February 1997 and which was on 27 th May 1997 deposited in the joint names of the parties Attorneys “Daltons” and “De Nobriga, Inniss and Company” (now Lex Caribbean) into the Bank of Commerce Trinidad and Tobago Limited (now Republic Bank Limited) Coffee Street, San Fernando together with accrued interest thereon.
Dated this 21 st day of July, 2006.
Vasheist Kokaram
Judge (Ag.)
[Context] [Hide Context] [1] As described by Mr. Cherry
[2] As stated by Dr. Toby in his cross-examination
[3] Plaintiff’s letter to the second Defendant dated 25 th April 1996
[4] The scienter action.
[5] I then proceeded to expunge certain parts of the witness statement of Ms. Ramnath as being inadmissible on the grounds of relevance and on the basis that the witness was not competent to give evidence on certain parts of her evidence.
[7] Page 7 of the Defendants’ skeleton arguments
[8] Page 4 of the witness statement of J Quaint
[13] (ibid)
[16] (1866) L.R. 2 C.P.I.
[17] H.C.A. 1774 OF 86
18 Draper (ibid)
[19] Sycamore
[20] Ellis v Johnston [1963] 1 AER 286
[21] See page 14 of the Defendants’ skeleton arguments
[23] Report of Michael D Brennen dated 3 rd August 1994, photographs of injuries,
[24] H.C.A. 2045 of 1997.
[25] H.C.A. 535 of 1987.
[26] H.C.A. 5690 of 84.
[27] H.C.A. 4637 of 1978.
[29] Exchange rate of £1 = TT$11.77
[30] See paragraph 102 of the Defendants’ written submissions dated 26 th June 2006.
[Context] [Hide Context]
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