Quinlisk v Kearney
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 10 June 2004 |
| Neutral Citation | [2004] IEHC 96 |
| Court | High Court |
| Date | 10 June 2004 |
[2004] IEHC 96
THE HIGH COURT
AND
Citations:
CONTROL OF DOGS ACT 1986 S9
CONTROL OF DOGS ACT 1986 S21
CONTROL OF DOGS ACT 1986 S15
CONTROL OF DOGS ACT 1986 S15(2)
CONTROL OF DOGS ACT 1986 S11(2)
CONTROL OF DOGS ACT 1986 S11(4)
CONTROL OF DOGS ACT 1986 S9(1)
CONTROL OF DOGS ACT 1986 S21(1)
KAVANGH V STOKES 1942 IR 596
IRISH CURRENT LAW STATUTES ANNOTATED 1986/32–44
CONTROL OF DOGS ACT 1986 S13
CONTROL OF DOGS ACT 1986 S13(4)
Tort - Statutory duty - Dangerous animals - Control of dogs - Owner of dog - Onus on occupier of premises to prove they are not owner of dog - Plaintiff injured by dog - Whether onus of proving not owners of dog discharged - Whether breach of statutory duty - Control of Dogs Act 1986, sections 9, 13 and 21.
Facts: the Control of Dogs Act 1986 provides that “owner” in relation to a dog includes the occupier of any premises where the dog is kept or permitted to live or remain at any particular time unless such occupier proves to the contrary. Under section 13 of the Act of 1986, any person who found and took possession of a stray dog was obliged to return it to its owner, deliver it to a warden or give written notice to a garda station. In such a case, the occupier would not be deemed to be the owner until one year had passed. The plaintiff was injured by a dog which she subsequently saw on the defendants’ premises. The defendants denied that they owned the dog but gave evidence of finding stray dogs on their premises occasionally. They never contacted dog wardens about them.
Held by R Murphy J in awarding the plaintiff €16,000 in general damages as against the defendants that the court had to be satisfied on the balance of probabilities that none of the defendants permitted a dog to remain at any particular time on their premises. The onus was on the defendants to discharge the presumption that they were the owners of the dog by allowing them to remain on their premises. The defendants had not discharged that onus. As the dog was not under effective control as required by section 9 of the Act of 1986 the defendants were jointly and severally liable for the damages caused pursuant to section 2 of the Act.
Reporter: P.C.
Judgment of Mr. Justice Roderick Murphy delivered on 10th June, 2004.
Some time after 11.30 p.m. on a dry summer's evening on the 7 th June, 1999 the plaintiff was returning from a meeting of Muintir na Tire in Roscrea. She was left off by her friend at the entrance to Sheehane estate where she and the defendants lived and was proceeding towards her house on the footpath at the side of the green, when a dog accosted her from behind in a threatening and hostile manner, causing her to fall to the ground. She suffered an injury to her pelvis, was in considerable pain, crossed the road and crawled home holding on to the wall.
The net issue in this case is whether the dog, which she described as a brown terrier-like dog, was in the care, management and/or control of the defendants.
2. The plaintiff relied on the definition of owner in the Control of Dogs Act, 1986, the obligation of such owner under s. 9 and the liability arising under s. 21 of that Act.
" “Owner” in relation to a dog includes the occupier of any premises where the dog is kept or permitted to live or remain at any particular time unless such occupier proves to the contrary;…
“Occupier” includes a person who owns and occupies, as well as a person who occupies only,…
“Stray dog” has a meaning assigned to it by section 11(ii) of the Act - includes any dog which appears to be unaccompanied by a person unless such dog is on the premises of its owner or of some other person who has the dog in his charge or of any other person with that person's consent.
“Dog warden” means a person employed under section 15 of the Act as a person employed by the local authority for the purposes of the Act."
Section 15(2) states:-
"Every local authority has an obligation to establish and maintain one or more shelters for dogs seized,…
A dog warden, pursuant to s. 11(i), shall take all reasonable steps to seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purpose of such seizure and detention."
Section 11(2) states:-
"A member of the Garda Síochána may seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purpose of such seizure and detention."
Section 11(4) allows that:-
"Whenever a stray dog is seized or detained pursuant to this section by a dog warden or a member of the Garda Síochána, the local authority or, as the case may be, the Superintendent of the Garda Síochána shall give notice to the owner or other person in charge of the dog, if the name of such owner or other person is known to it or him or can be readily ascertained, that the dog has been seized and detained and that the dog will be disposed of, or destroyed, after five days from the date of the notice…"
Section 9(1) of the Act provides that:-
"[t]he owner or any other person in charge of a dog shall not permit the dog to be in any place other than -"
(a) the premises of the owner, or
(b) the premises of such other person in charge of the dog, or
(c) the premises of any other person, with the consent of that person, unless such owner or such other person in charge of the dog accompanies it and keeps it under effectual control."
Section 21(1) of the Act provides as follows :-
"The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog … and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner's knowledge of such propensity, or to show that such injury or damage was attributable to neglect on the part of the owner."
It would appear, that in addition to the statutory liability, there also remains the common law remedy under the scienter action and, of course, the liability in negligence is provided for in Kavanagh v. Stokes [1942] I.R. 596 or in trespass (if the owner has commanded the dog to attack).
Damage caused in an attack on a person need not involve physical contact - the word “attack” though not defined in this Act has been judicially defined as including an assault which does not, necessarily, involve battery. Indeed, in the commentary to this section Kerr, Irish Current Law Statutes Annotated at 86/32–44 suggests that physical contact may arise where a person falls and injures themselves when getting out of the way of an attacking dog.
It is clear that the s. 21(1) does not impose liability for any injury other than "damage caused in an attack on any person". Accordingly, where a dog runs out into the road and a motorcyclist collides with it causing himself injury, the necessary ingredients of “attack” may not be present.
The plaintiff lives across the green from the defendants who are all members of the same family, being the son and his mother and father respectively.
The plaintiff, in her evidence, described walking home having left her friend some 200 yards from her house. She said she felt a tug on her left leg and saw a small medium brown coloured dog growling. It did not have a smooth coat but the coat had a slight little kink or curl on it. She said the dog pulled so hard that she turned around, lost her balance and fell. The dog had come up from behind her as she walked on the path of the green with her back to the defendants” house and going towards her own house. She lay on the ground for a quarter of an hour with severe pain in her right hand side. Her husband was at home and she spent two days lying in bed in a lot of pain. Two days later her husband brought her by car to see her G.P. She said the injury to her groin had exacerbated previous trouble she had had. Two days later she returned to the same practice and was sent to Tullamore Hospital, X-rayed and given painkillers. There was no bed available and she returned home where she spent six weeks in bed in severe pain, having to be carried to the bathroom. She was then on crutches until January, 2001, some seven months later. In relation to her previous problem she said that two discs had been removed in 1982 or1983, and that she had had intermittent problems since then. She had pain in her right hand side, in her back and a burning pain which eventually went down her back to her legs. It was the exact pain that she had before the accident. She had surgery and three epidurals which solved that pain. She said that the pain started again in late 2001 but she had no pain now. She went back to work in May, 2001, some seven months later - she was attending her doctor because of her back pain and then she developed rheumatoid arthritis at Christmas 2001. At this stage she was advised by her G.P., Dr. McManus, to retire or else she would undo everything that he was doing for her.
She told the court that in mid-August she had seen the dog going into Mr. Kearney's (the third named defendant) house. She went over on her crutches and asked Mr. Kearney if he owned the brown dog that was then at Mr. Kearney's door. She said that he replied that it was one of his son's (the first named defendant) dogs and added that his son went hunting. When she was sure that the dog belonged to Mr. Kearney she reported it to the dog warden.
Counsel for the defendants indicated that he accepted that there had been an accident and said that the only issue was as to the ownership of the dog. The defendants denied owning the dog.
The...
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