We examine the mistaken belief that every dog is allowed one bite
We get cases from many lawyers who have told their clients that they cannot help them because the dog that bit them was not aggressive.
Insurers routinely receive denials that the dog owner cannot be held responsible because the dog did not react this way before.
However, if we gave up every time someone made this argument, our success rate would be nowhere near the near 100% record we have.
It is a common misconception that a dog is allowed one bite. This belief is completely wrong and is based on a fundamental misunderstanding of the law in England and Wales.
Often the defense that the dog was not aggressive before turns out to be (directly speaking) a lie. A dog owner will blindly claim that their dog has never shown aggression and then when we get vet records or re-homing papers or a police interview we often see a reference to a dog that bites and kicks and is difficult to examined or even that it had previously been attacked. evidence of this past is presented to the dog's owner or its insurance company, it will be withdrawn. A dog with a verifiable history of aggression does not guarantee that a treatment will succeed, but it is obviously a big help.
However, sometimes there appears to be no previous history of aggression. What happened the day the dog bit was a true "one-off". But that doesn't mean there isn't a legal case.
This point was tested in a recent case we dealt with. It should have been relatively simple, but surprisingly it led to a fully contested court case, mainly because the owner's insurers mistakenly believed the dog had a bite.
The case involved Mrs Ew who took her daughter to primary school and walked home along Ellingham Street in London. The accused was a resident of Ellingham Street and the owner of a dog named 'Murphy'. Defendant had Murphy on his trail, exiting his home and opening his car door while Murphy stood behind him. As Mrs E walked past Murphy, the dog jumped on Mrs E, biting her on the chest.
Mrs E was understandably very upset by what happened. She contacted us and we agreed to take on her case.
The defendant's insurers did not dispute that Murphy had bitten Mrs E, but liability was still denied on the basis that Murphy had never bitten anyone before, had a good temperament, was not an aggressive dog and there were no issues of aggression in the veterinary records . Responsibility was also attributed to Mrs E. Although the defendant did not witness the attack (as she was looking away at the time), she believed that Mrs E acted in a way that led to the reaction and biting of Murphy. They even suggested that she make a phone call and enter Murhpy.
We remain of the view that the law was in Ms E's favor and that the issue of past aggression is a 'red herring' in terms of proving guilt on the part of the accused. In addition, we found that there were significant weaknesses in the defendant's case. For example:
- Defendant confirmed that Murphy was wearing a "Halti" collar. Our argument was that this particular type of collar showed known control problems. Importantly, no evidence was provided on how these control issues were addressed.
- Similarly, no evidence was adduced as to how the dog could have reached Ms E if the defendant had handled the dog properly.
- Defendant was unable to provide evidence of education.
- The defendant confirmed that he saw Mrs E walking down the street but took no steps to ascertain that she knew Murphy nor did he take steps to avoid any contact. and
- Mrs E denied having a telephone conversation. A copy of her detailed phone bill was obtained, which showed she called her partner less than a minute after dropping her daughter off at school and then again immediately after the incident before calling the police.
A GP report was obtained on the dog bite which confirmed the injuries sustained by Mrs E. There was also a psychological element to her injuries and a consultant psychiatrist's report confirmed that Mrs E suffered from a specific phobia which manifests as anxiety around the dogs. as well as with the worsening of an already existing sleep disorder.
The case could not be settled out of court, so we took it to trial. The judge agreed with us that the Animal Act's three-step test was satisfied. Importantly, he said the lack of previous aggression was irrelevant, commenting:
"The dog in this case is an absolute darling. We know that, after the accused told us that, he had never behaved like this before, but unfortunately for the accused, the Act took this into account because it says in 2.2)(c ) that these the characteristics were known to the owner or that holder or that they were known at any time to a person eg the operator or the head of the household This means that the owner or the head of the household or the owner if you like , you should know that dogs, in this case, are likely to show certain characteristics, eg jump and bite, in certain situations; not that this dog has not done it before and 'therefore I cannot be held responsible because the dog has done it It's a misunderstanding of the Law that makes people think that... Dog owners tend to think, it seems to me, that if little Timmy hasn't done it before then he's entitled to his first bite, but that's not says this law."
Our client's claim was therefore successful and she was awarded compensation for her injuries. The amount he received was increased because it was higher than previous offers during negotiations.
Dog-bite lawyer James McNally said after the trial:
"This case more than any other shows how important it is to find the right lawyer to deal with your claim. I have no doubt that if Mrs E had gone to another firm she would have been told that the dog was not aggressive, it had no claim. Fortunately, we are familiar with animal and dog bite law, and we also have access to attorneys who understand this complex area of the law. This means we won't back down when liability is denied, and it means we know how to build the best case for going to Court.
It's unusual for these cases to go to trial, and this was a relatively low-value case that you wouldn't expect to defend the way the insurers did, but in a way I'm glad they did because the judge's comments will serve as a reminder that it is not right for insurance companies to operate on the basis that every dog is allowed one bite.'
So if you have been bitten by a dog that has shown no signs or aggression in the past, don't be fooled by the myth that a dog is allowed to bite. James McNally can be contacted for initial free expert advice on 0333 888 0405 or by email at[emailprotected]
Is every dog allowed one bite?
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