Wilson v Silvera
| Jurisdiction | Jamaica |
| Judge | MacGregor, C.J. |
| Judgment Date | 15 December 1959 |
| Neutral Citation | JM 1959 CA 7 |
| Court | Court of Appeal (Jamaica) |
| Date | 15 December 1959 |
Court of Appeal
MacGregor, C.J.; Cools-Lartigue, J.A.; Duffus, J.A.
Carberry for the plaintiff-appellant.
Coore for the defendant-respondent.
Tort - Liability for damage by dogs — Claim for personal injuries — Contributory negligence — The Dogs (Liability for Injuries by) Law, Cap.104.
This is an appeal from the judgment of the resident magistrate, St.Andrew, in an action in which the plaintiff claimed damages for injuries sustained by her when the defendant's dogs attacked and bit her. The resident magistrate adjudged the defendant liable, assessed the damages at £100, but held that the plaintiff's negligence contributed to her injuries and reduced the damages he awarded by 50%.Both parties have appealed against the judgment, the plaintiff against the finding of contributory negligence and against the reduction in the damages awarded, the defendant against the finding of liability. For the purpose of convenience we will refer to the plaintiff as the appellant, and the defendant as the respondent.
The facts surrounding the incident are not in dispute. On December 25th, 1956, the appellant went to the home of the respondent at 1B Easton Avenue in St.Andrew, where a friend of hers, Nora Stubbington, resided as a paying guest of the respondent. She intended to leave a gift for Miss Stubbington. On her arrival she saw the front door of the house, leading to the veranda open. The gate to the premises was shut and latched. She knocked and called a couple of times and received no reply and after about a minute she pulled the latch and entered the premises, walking about 12 yards to the steps leading to the veranda. There she again called, asking if anyone was in. As she stood on the step a dog came through the open front door and stood in front of her. The appellant again called “Nobody in?” and she heard a woman reply from inside. The reply was either “Come in” or “Coming”.Immediately a smaller dog ran out at her and both dogs jumped on her and savagely attacked her. She shouted, and after a time the respondent came from inside the house, held the bigger dog, took it into the house, and the smaller dog followed.
The only other facts that are material for consideration are: that the respondent's premises are fenced by barbed and mesh wire; that the appellant on previous occasions when she had called at the premises, had not entered the premises, but Miss Stubbington always came out to her; that Miss Stubbington had not been forbidden by the respondent to have visitors; that one or two of Miss Stubbington's friends have, when calling to see her, gone into the premises; and the dogs bark a lot, at people talking in the street, at children passing or at the gate.
The questions that arise for consideration are: (1) Does the Dogs (Liability for Injuries by) Law, Cap.104 [J.], hereafter referred to as the Dogs Law [J.], create an absolute liability for injuries by dogs? (2) If it does not, was the appellant in the circumstances in which she entered a trespasser? (3) Was she guilty of contributory negligence? (4) If she was guilty of contributory negligence was the apportionment of liability, 50% each, a correct apportionment?
Section 2 of the Dogs Law [J. ] provides as follows:
“2. The owner of every dog shall be liable in damages for injury done to any person, or any cattle or sheep by his dog, and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such dog, or the owner's knowledge of such previous propensity or that the injury was attributable to neglect on the part of such owner.”
It will be seen by comparison that this section differs from the Dogs Act, 1906 [U.K.], s.2, which replaced the Act of 1865 [U.K.], in that our Act extends to injury done to any person, cattle or sheep, while in England it extends only to injury done to any cattle, a term which includes horses, mules, asses, sheep, goats and swine. Hay an amending Act in 1928 it was extended to damage done to poultry.
Counsel for the appellant in support of his proposition that the Dogs Law [J. ] created an absolute liability for damage done even to a trespasser, referred us to Grange v. Silcock (1).The headnote reads:
“Under section 1 of the Dogs Act, 1865 [U.K.], the owner of a dog is liable for injury done by the dog to cattle or sheep, although such injury be done in driving the cattle or sheep off land belonging, to the owner of the dog upon which land the cattle or sheep are trespassing at the time when they are so ‘injured’.”
The judgment of Collins, J.(61 J.P.at p.710), was short and we quote it:
“The words of the statute are clear and absolute. There is no express exception in favour of a dog who catches sheep trespassing. It would be possible to conceive cases in which, perhaps, it would render it necessary to read some qualification into the words of the section of the statute. If a wild bull escaped into a man's field, and the dog that was used for driving it out bit the bull, it might be allowable. Words of this sort might then have to be deemed to be introduced into the section, unless some legal justification for employing the dog be shown. That does not arise in this case. A dog cannot be placed in a better position than its master. The dog had no right to kill trespassers, but only to use such violence as was necessary to remove them. This dog cannot be said to have been assisting his master. The case clearly falls within the absolute words of the statute. There may be cases to which the words of the statute would not be applied literally, but we are not concerned to enquire as to what those cases might be.”
Neither this judgment nor that of Lawrence, J., carries conviction, and counsel for the appellant had to rely on the words “a dog cannot be placed in a better position than its master” to explain the position of the liability of the owner of a dog which has bitten a burglar. The master can eject a burglar, therefore a dog may also. Professor Glanville Williams In his book on LIABILITY FOR ANIMALS says at p.356:
“It is true that in the English case of Grange v. Silcock (1) a Divisional Court held that it was no defence that the animals were trespassing at the time when they received the injury; but this high view of the defendant's duty seems to be absurd. If carried to its logical conclusion, it would mean that no dogs could be used to drive out trespassing cattle.”
In an earlier sentence (ibid., p.356) the author states:
“In New South Wales, on the construction of similar legislation that extends even to injuries to human beings, it has been held permissible to show that the plaintiff was a trespasser and this was put upon the broad ground that all common law defences except lack of scienter applied.”
There is an interesting footnote:
“Otherwise ‘a burglar could recover damages for injury to him by a watchdog’.”
But the liability of owners of dogs has been considered recently in this Court. In Brown v. Henry and Anor.(2), Savary, J., delivering the judgment of the Court, said ( 5 J.L.R. at p.63):
“It does not follow … that the provisions of our Law exclude the defence being raised … that the damage caused by his dog was the result of the intervening act of a third party.”
The Court was there setting out that one of the common law defences was open to a defendant in certain circumstances and was clearly laying down the proposition that there was no absolute liability.
In our judgment the Dogs Law [J. ] does not create an absolute liability. It relieves the plaintiff of proof of scienter and of the proof of negligence. Other defences which are open at common law may still be raised.
We turn now to the second question, Was the appellant in the circumstances in which she entered, a trespasser?
In Salmond on Torts, 11th Edn., p.581, the learned author states:
“But it is sometimes difficult to distinguish between a trespasser and a person entering lawfully by the tacit permission of the occupier.Thus, the occupier tacitly invites and permits certain classes of persons to enter his garden gate and come to the front door. If his dog bites a person so entering, liability will depend on whether that person falls within the class of persons so tacitly invited; for otherwise he is a mere trespasser to whom no duty is owing.Who, then, are thus entitled to enter, and to complain of injuries received? What shall be said, for example, of hawkers, beggars, tract distributors, canvassers, strangers entering to ask their way? The only acceptable conclusion would seem to be that no person is to be accounted a trespasser who enters in order to hold any manner of communication with the occupier or any other person on the premises, unless he knows or ought to know that his entry is prohibited.”
In Winfield on Torts, 6th Edn., p.705, we read:
“To the head of implied permission may perhaps be referred persons who call upon the occupier for purposes which may be described as of business interest to themselves and which they believe or hope may be of like interest to him but which usually excite none in the occupier or may even be distasteful to him; e.g., persons who canvass in the...
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