Court acquits dog owner for omitting precautions as prior incidents did not prove savage disposition.

[*91] 1977 April 4

(BOTADJIS, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Police,

v.

Christos N. Economou,

Accused.

(Criminal Case No. 30444/76).

Animals - Dog - Vicious propensity - Onus of proof - Dog straying on highway and biting complainant - Facts antecedent to incident not establishing that, to the knowledge of the owner, his dog evinced a savage disposition towards mankind, in the sense that it would be likely to bite or do harm to any person - No duty in law on owner to take precautions such as shutting or preventing dog from getting at people - No evidence that owner kept his dog in a negligent way - Section 236(d) of the Criminal Code, Cap. 154.

Criminal Law - Reckless and negligent act - Animals - Dog - Straying - Duty of owner - Omission to take precautions against any probable danger from an animal in one's possession - Section 236(d) of the Criminal Code,Cap. 154 - General principles applicable.

Sgt. Vassos, for the Prosecution.

Chr. Vakis, for the accused.

JUDGMENT

The following judgment was delivered by: -

BOYADJIS. S.D.J.: The accused is charged [*92] with omitting to take precautions against any probable danger from an animal in his possession, contrary to section 236(d) of the Criminal Code, Cap. 154.

The accused is the owner of a big pointer hound which he keeps in his house situated at Fereos street in Acropolis quarter of Nicosia.

The complainant, a widow living in the same neighbourhood with the accused, was the owner of a puppy.

The incident which gave rise to the present prosecution occurred on the afternoon of the 25th September last on the pavement of Hygeas street, about 200 metres away from accused’s house.

In support of the case for the prosecution 5 witnesses have given evidence. The accused elected to make an unsworn statement from the dock and did not call defence witnesses.

Accepting the version of the complainant I find the facts material to the present proceedings to be as follows:-

The complainant was walking on the public road carrying her puppy in her arms. Outside the home of P. W. 3 Pantelis Evangelou she put her puppy on the pavement. Almost simoultaneously, accused’s dog which was suffered to stray on the adjoining open ground, rushed at the puppy and took it from complainant's hands and holding it in[*93] its jaws hit it on the ground. The complainant tried to free her puppy from the mouth of the hound. At some stage of the incident accused's dog bit and injured the complainant on her left hand.

On hearing complainant’s shouts the accused ran from his house to the scene and brought his dog home. He then conveyed the puppy to veterinary surgeon Savvas Heracleous-P.W.2 . He also conveyed the complainant to the Casualty Section of the Hospital where her injury was treated by Dr. A. HjiKoutis - P.W. 5. On the same day the accused offered to compensate the complainant. The puppy succumbed to its injuries next morning.

The dog of the accused was kept in his yard sometimes tethered and sometimes loose. On the gate of the house there was a notice evidently addressed to members of the public, on thich the following words were written ###(beware of the dog).

The dog was often suffered by accused to stray in the neighbourhood during day or night time.

On two previous occasions the dog had attacked the complainant. On one coccasion the complainant was walking in a public street and accused's dog was in the charge of accused's son. The complainant did not give any details of the dog’s attack or its consequences. She also said nothing about the age of accused’s said son.

On the other occasion the complainant was watering her garden at about midnight when accused’s dog [*94] trespassed into her yard as he often did and all of a sudden he jumped on her and placed his front legs on her breasts. There is no allegation that he did anything else. She was so frightened at this attack that she lost control of her urine. Next day she went and found the accused to whom she related the aforesaid incident and warned him that unless he does something about his dog, greater harm may be caused in the future. The accused said that he should raise the height of his fence so as to make it impossible for his dog to go out of his yard. Be that as it may, he omitted to do anything until the date of the incident.

Learned counsel for the accused has argued that on the aforementioned facts of this case, the accused cannot be convicted under section 236(d) of Cap. 154. He submitted that accused's dog is an ordinary domestic animal and in the absence of scienter and of facts which made it probable in the mind of the accused that the particular kind of harm might occur unless he takes precautions, he cannot be held responsible. He further submitted that the above facts do not prove criminal negligence on the accused.

Section 236(d) of Cap. 154 reads as follows:- "Any person who in a manner so rush or negligent as to endanger human life or to be likely to cause harm to any other person –“

"(d) omits to take precautions against any [*95] probable danger from any animal in his possession is guilty of a misdemeanour".

It should be noted that sec. 236 is embodied in Part V of the Law which deals with offences against persons. Therefore the words "harm to any person" found therein should be construed to refer to bodily injuries and the words "probable danger" should likewise be construed to refer to danger of bodily injuries.

Sec. 236 is the first amongst six sections under the heading "Criminal Recklessness and Negligence". Before liability in negligence may arise, a duty must be shown to exist on the accused towards the person injured not to be negligent. The prosecution must prove the existence of circumstances establishing accused's duty to take precautions.

At common law there is no prima-facie legal obligation on the owner of property so to fence it as to prevent his animals from straying on to the highway and he owns no duty to passers-by to take reasonable care to prevent any of his domestic animals not known to be dangerous from straying thereon: Searle v. Wallbank (1947) 1 All E.R. 12; Ellis v. Johustone (1963) 1 All E.R, 286.

In Brock v. Richards (1951 ) 1 All E.R. 261 it was held that the exceptional class of case where the owner of an animal is under a duty to take steps to prevent it from endangering the public on the highway is[*96] limited to the case where the animal is "vicious’' or "mischievous". The word "vicious" as applied to animals connotes a savage disposition, a propensity to attack people. An animal which, though not savage, is dangerous because of its frolicsome behaviour must equally be taken to have propensities against which,if he knows them, the owner has a duty to guard. The basis of liability is that such an animal when on the highway and therefore likely to meet passers-by, is known to be liable to indulge its dangerous propensities.

In McQuaker v. Goddard (1940)

1 All E.R. 471, dealing on appeal with the duty and liability of owners of wild and domestic animals, SCOT L.J. said at p. 475:-

"On the question of law, it is important to bear in mind that, in the old common law of England, a rule was laid down long ago that domestic animals are regarded in quite a different light than wild animals. Wild animals are assumed to be dangerous to human beings because they have not been domesticated. The law does not assume domestic animals to be dangerous. That is the reason why, in English law, a keeper of a wild animal must keep it at his peril. If he lets it out and causes damage to any human being personally, or to the property of another, the keeper or owner of the animal, as the case may be,is liable to damages for the injury so caused.” [*97]

"On the other hand, in the case of domestic animals, the presumption of law is the other way. The plaintiff has to prove that the defendant was aware of the particular propensity of the animal to hurt human beings which was evinced in the case where, ex hypothesi, the plaintiff suffered. Unless the plaintiff proves that knowledge at common law there is no liability upon the defendant. That liability has, in the case of dogs worring sheep and in the case of certain other animals, been altered by legislation in Parliament. Apart from these exceptional statutory case, however, there is no liability without proof of knowledge on the part of the defendant, or, as it is called in law, scienter”.

In the case under consideration the harm to the complainant having been caused by a dog, a domestic animal, the prosecution must prove that the accused knew that this particular dog, by reason of its habits was likely to cause harm to any person by reason of the fact that it had in the past done the same sort of thing. In the absence of such proof the danger of the animal causing the particular harm to any person cannot be said to be likely in accused’s mind and his failure to take precautions to guard against such likelihood cannot be the result of accused’s criminal negligence.

Our section 236(d) is modelled upon section 289 of the Indian Penal Code. In Gour's Penal Law of India [*98] 9th Edn., Vol. 2, p. 1985 it is stated that this section only punishes what is criminal negligence consisting in criminal omission to take order with an animal in one's possession and does not deal with criminal acts. Commenting on the aforesaid corresponding Indian section, the learned author states therein principles which are substantially similar to the aforesaid common law principles with regard to the circumstances required to give rise to a duty to take precautions with an animal in one's possession. At page 1986 of the Book under the heading "What omissions are criminal" we read the following:-

"Now, the facts constituting criminal omission are in accordance with the general scheme of this chapter, generally indicated in this section with reference to the result. But it is obvious that the probability of danger is not uniform in each case. Nor is the same degree of care sufficient in each case. In the case of animals ferae naturae such as tigers, wolves, bears or serpents, the owner knows of the danger every moment. In their case, therefore, that danger would be presumed and the onus will then be on the accused to show that he had taken such precautions as were necessary to safeguard the public against their savagery. But with domestic animals the case is different. They are presumed to be docile and gentle and it will be for the prosecution to show that the accused's handling of them was negligent. This may be proved by evidence of [*99] the general ferocity of the animal, and its knowledge on the part of the accused... In the absence of any evidence as to the general savage disposition of a domestic animal known to the accused, the latter may still be liable for not taking that care which is usual and necessary in the case of all animals. A person who negligently ties a pony in a crowded bazar, so that he gets loose and runs about, may still be convicted under this section, because he was negligent in not fastening him securely."

And at page 1987 we read:-

"And even if the animal be insecurely fastened it cannot be laid down as a general rule, that it was in all cases likely to lead to danger to human life, or of grievous hurt. (Note: the Indian section 289 covers only cases of probable danger to human life or of grievous hurt from the animal). As the Madras High Court remarked in another case: ‘If the pony had been proved to be vicious and the defendant was cognizant of the fact, there would have been evidence of the commission of the offence defined in this section. It is not, in the opinion of the Court, the quality of an ordinary pony to endanger life or inflict grievous hurt. The likelihood of the consequence must be determined by a deduction from facts antecedent to the actual event, and certainly a man cannot be held criminally [*100] liable for a consequence of which, so far as appears by the evidence, nothing has occurred to show the probability'. The tethering of a horse in a narrow street where people cannot pass without going near the animal's hind legs is a negligent omission to take order with the animal sufficient to satisfy the requirements of this section".

Guided by the aforesaid principles I now turn to the facts of the case in hand. What are the facts antecedent to the event of the 25th September which the prosecution has proved in this case? Were these facts known to the accused? If the accused knew of those antecedent facts, can the likelihood of the consequence which has actually occurred be reasonably deduced therefrom? If it can be so deduced, has accused omitted to take reasonable precautions to guard against such likelihood?

The killing of complainant's puppy, however unfortunate, is not material for the present prosecution as it is something which the section does not cover.

There is no evidence that the accused ever came to know about the attack by his dog on the complainant, whilst it was being accompanied by his son, I cannot safely consider the son as the agent of the accused, as I have no idea at all about his age. If the son is only 5 years old, it cannot surely be alleged that the knowledge of this child may be attributed to his father on[*101] the doctrine of principal and agent or master and servant.

The notice on accused's house warning of the presence of the dog is not in itself evidence of scienter:- Sycamore v. Lee (1932) 147 L.T. 342, C.A.

There is also evidence that soon after the incident the accused offered to compensate the complainant. No inference can be drawn either from this evidence or from the fact that accused kept his dog occasionally tethered in his yard, that he knew that his dog was accustomed to bite:- Beck and Wife v. Dyson (171 E.R. 64); Sanders v. Teape and Swan (1884) 51 L.T. 263.

It remains only the previous single incident when the dog "attacked" and frightened the complainant in her yard. The dog only jumped on the complainant without biting or otherwise injurying her. Due to his size and strength as described by complainant he could have done so if he meant so to do. This incident came to the knowledge of the accused.

In Charlwood v. Greig (1851 ),

3 car & Kir. 46, it was held that knowledge by the owner of dog of one previous incident of biting was enough to require him to take precautions against his dog being at large, and that it was not necessary to be shown that the dog was generally prone to bite.

Worth v. Gilling and Another (1866) L.R.2 C.P.I is an authority that the owner of dog has a duty to take[*102] precautions if he knew that his dog evinced a savage disposition by attempting to bite, although it had never actually bitten anybody.

A defendant’s knowledge that his horse has a propensity to bite horses is not evidence of a propensity to bite mankind:- Glanville v. Sutton(1928) 1 K.B. 571.

In Gour’s Penal Law of India, 9th Edn., Vol. 2, p. 1986 we read:-

"It is not necessary to show that the animal had actually bitten or injured another person before it bit or injured the complainant; it is enough to show that to the knowledge of the owner it had evinced a savage disposition, e.g. in the case of a dog attempting to bite. Even a single attempt to bite a human being may be sufficient. For, what the accused has then to see is that the dog does not bite again, and this creates an obligation between him and the public, the omission to discharge which is criminal".

Had accused's dog attempted to bite complainant when it sprang and jumped on her in her garden on the night of the aforesaid previous incident, there would have been no difficulty at all in finding that circumstances existed giving rise to an obligation on the accused to take precautions about his dog.

The question is whether the accused, acting as a reasonable man, on being informed by complainant of the [*103] previous behaviour of his dog, ought to have taken precautions to guard against the probability of his dog doing harm to any person, irrespective of whether he never knew that his dog had previously bitten or attempted to bite any person.

In Barnes v. Lucile (Limited)

(1907) 23 T.L.R. the owners of a workshop kept a dog which had 3 pups. The dog was kept in a run underneath the workroom and no precautions were taken to prevent it from getting into the workroom. It was proved that this bitch had made efforts to get into the workroom, not in play, but in anger, undoubtedly trying to get at the occupants of the workroom. One day the bitch entered the workshop, sprang at an apprentice girl and bit her. The owners were held liable in negligence. On appeal MR. JUSTICE DARLING is reported asaying that "in this case the learned county court Judge held that there was evidence that the dog which bit the plaintiff was ferocious, and that the defendants knew it. He was of opinion that there was evidence upon which he could come to that conclusion. It was a misapprehension on the part of many people to suppose that in order to make the owner of a dog liable the dog must, to the knowledge of the owner, actually have bitten some one before. Nor did he think it was necessary to show that it had attempted to bite somebody. But what was necessary was that there should be evidence that the dog was ferocious dog. That meant that it would be likely to bite without provocation.” [*104]

" MR JUSTICE LAWRENCE said he was of the same opinion. He did not in the least say that he should have come to the same findings of fact upon the evidence; all that he had to do was to see whether there was any evidence upon which the judge could have arrived at the conclusion to which he came. He was of opinion that there was such evidence, and consequently his judgment must stand".

There is one other case which is on all fours with the facts of this case. This is the case of Line v. Taylor

(1862) 176 E.R. 335 where the question arose whether a plea of knowingly keeping a fierce and mischievous dog who has bitten or wounded the plaintiff, could be substantiated by evidence merely establishing that the dog, kept in chains, had the habit on being loose to bound upon and seize persons not so as to hurt or injure them, though causing some annoyance and trivial accidental damage to clothes. The following antecedent facts were proved to have occurred to the knowledge of the owner: On one occasion the dog had sprung once upon a man passing by and torn his collar; on another occasion he had also sprung upon another man who had easily repulsed him with a bag he was carrying. It did not appear that on either occasion the dog really meant to bite or inflict a wound, as,from his size and strength, it was plain he easily could have done had he meant so to do. There was no other evidence that he was of a fierce or mischievous nature.

Erie C. J. said to the jury at p. 336:

"The plaintiff, to sustain the action, must [*105] satisfy you, not only that he was injured by the dog, but that the dog was fierce and mischievous, and known to be so by the defendants. If the plaintiff was really hurt and injured, it does not matter whether it was by the bite of the teeth or merely by a bruise or the effects of a squeeze. And it is not necessary to show that he was used to bite, if he was used to injure people. But if he merely had a habit of bounding upon people in play, even although in so doing he might frighten timid persons or cause some little annoyance, that would not sustain the action". A verdict was consequently given for the defendant.

With all the above authorities in mind, I have come to the conclusion that the facts antecedent to the sub-judice incident in the present case do not go as far as establishing that, to the knowledge of the accused, his pointer hound evinced a savage disposition towards mankind, in the sense that it would be likely to bite or do harm to any person. On the facts of this case there existed no duty in law on the accused to take precautions such as shutting him up and preventing him from getting at people, which he admittedly omitted to take. There is no evidence that the accused kept his dog In a negligent way.

For the above reasons, the accused is acquitted and discharged.

Accused acquitted and

discharged.