It’s a dog’s life - Liability for animals: the Animals Act 1971 and dangerous dogs

This article was authored by Joe Lewin and Isobel Budgen, Trainee Solicitors.

With a string of high profile incidents involving animals, along with the XL Bully dog ban, it is important now more than ever for both owners and their insurers to understand the legislation in place around damage caused by animals.

What is the current law?

The Animals Act 1971 (the Act) imposes strict liability on “keepers” of animals of dangerous species for damage caused by their animals. This means the keeper of the animal is responsible for any injury caused, and the injured party does not have to prove any negligence on the part of the keeper. Importantly, lack of control at the time of the incident does not prevent a person from being a keeper and there can be multiple keepers in law. For example, when a dog owner leaves their dog with a day carer/walker, they remain a keeper of the dog even though they were not present when an incident happens. If that dog were to bite someone, both the owner and the day carer/walker could be held responsible. 

For other animals which are not automatically considered to be “dangerous species” under the Act, a keeper of the animal is liable for the damage (except as otherwise provided under the Act) if:

1. The damage is of a kind which the animal, unless restrained, was likely to cause, or which was likely to be severe.
   
   When considering the likelihood of causing damage, if an animal can reasonably be expected to cause damage of the kind suffered, this is sufficient. The animal’s history is a relevant factor in deciding this. If a claimant is seeking to rely on the likelihood of severity of the damage, a balance of probabilities test is applied (Preskey v Sutcliffe [2013]).
   
   
2. The likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally found except at particular times/ circumstances.
   
   The next step is to consider whether the likelihood or severity of the damage was due to an “abnormal characteristic” of the animal. Expert evidence will assist with determining this, but only if the animal is assessed in person and rapidly following the event in question. Factors such as the animal’s size, nature and strength are relevant (rendering certain dog breeds more susceptible to possessing these abnormal characteristics).
   
   
3. Those characteristics were known to that keeper, which includes any person who had charge of the animal at the time, or another person of the animal who is a member of the household and under the age of 16 (where the keeper is the head of the household).
   
   Finally, the keeper must have actual knowledge of these abnormal characteristics. It is not enough to say that a keeper ought to have known, but knowledge could be established from previous incidents or an animal’s history of displaying aggressive tendencies.

It is important for all animal owners to understand the various provisions of the Act, along with the defences available, to determine whether they may be liable in the event of an animal-related incident. The above-mentioned factors are also likely to have a bearing on insurance cover, and it is vital for keepers of animals to ensure that adequate cover is in place. 

The Animals Act 1971 and dangerous dogs

Civil claims under the Animals Act 1971 apply to all breeds of dogs, rather than solely banned breeds. A prosecution under the Dangerous Dogs Act 1991 may throw weight behind a civil claim because the threshold for prosecution is higher than the respective civil threshold.

The Dangerous Dogs Act is an example of ‘breed specific legislation’ which works on the assumption that certain breeds are inherently dangerous. This is an assumption which is often supported by popular news media which links certain breeds with dog bite related accidents and fatalities.

There are five banned dog breeds in the UK, including most recently the XL Bully. Identifying whether a dog falls into a banned breed type can be challenging. The animal’s classification has no foundation in its parentage or genetics. Visual identification of breeds by experts is known to be difficult, even by professionals, and is not always a reliable determinator.

This leaves ambiguity for dog owners and their insurers alike in determining whether they are the owner of a banned breed under the Act. This is a particularly fresh concern for those who own dogs which may fall within the classification of an XL Bully.

A precautionary approach to complying with the statutory requirements is recommended where a dog may fall within the banned breed classification.

Impact on farming/agriculture and considerations for owners

It may be in a dog’s nature to chase but specific care and consideration needs to be given around livestock. Spring not only brings new life but often a rise in claims of sheep/cattle worrying. We have seen claims brought for dogs attacking horses under Section 2(2), the latest claim being Koetsier v Thomas [2023] which provides useful guidance on the duty of care owed by dog owners. Under the Animals Act 1971 there is specific legislation under Section 3 applying strict liability “where a dog causes damage by killing or injuring livestock, any person who is a keeper of the dog is liable for the damage, except as otherwise provided by this Act”. The test for whether someone is a keeper remains as per Section 6(3) of the Act. The farmer/land owner would be required to prove causation i.e. that the injury was caused by the dog in question. This is likely to be fairly easily satisfied with CCTV or eye witness testimony. The definition of livestock extends to all animals kept for the purposes of food, wool/skins/fur or for farming. With a rise in ‘dog reactivity’ particularly with lockdown puppies that have not been socialised or exposed to the likes of cows or sheep, there is a real risk of damage/injury.

Injuring or worrying livestock is a criminal offence under the Dogs (Protection of Livestock) Act 1953. There does not need to have been a specific attack or contact, such as a bite, to fulfil the criteria. Rather, all that is needed is that a dog chases livestock or is at large, off lead or otherwise not under control, in a field containing livestock in a way that may reasonably be expected to cause injury or suffering to the livestock. The concern in such instances is that such stress caused to a sheep/cow as a result of a dog merely being at large in a field can result in death.

How to assist the farming community and keep dog owners away from criminal or civil action

Farmers should put up signs and reminders that dogs should be kept on a lead in specific areas highlighting what type of livestock is present. Temporary fencing can be placed to provide a boundary between footpaths in high risk seasons, for example when ewes are pregnant. There is also a need to educate dog owners of the importance of training and understanding of a dog’s potential hunting instinct.

It is important to highlight Section 9 of the Act to both the farming community and dog owners. As a last resort only, farmers have a defence for killing a dog who is worrying their livestock. The famer must evidence that their actions were undertaken solely for the protection of any livestock, the dog in question must have been worrying or about to worry the livestock and there must be no other reasonable means of ending or preventing the dog’s actions. If such an action occurs this must be reported within 48 hours. If the conditions cannot be evidenced, farmers may face charges of criminal damage.

When such a step is taken, it should be on a reactive basis. While the desire to protect one’s land and livestock is understandable, farmers should steer away from excessively dangerous means of doing so to avoid exposing them to a claim under the Occupier’s Liability Acts of 1957 and 1984. For example, a barbed wire fence, rather than a simple wire fence designed to keep out a dog, could also cause an injury to person.

Additionally, in a world where social media use is prevalent, there is a reputational risk for farmers and dog owners should such actions arise. In considering the growing concern on farming profit margins, any reputational risk should be carefully considered.

Considerations for insurers

While third party liability cover for claims arising from domestic animals not on the dangerous dogs register are contained in most pet and household policies, these tend to exclude liability for dogs with a history of aggressive behaviour. In addition, according to the ABI, there is only one insurance provider of liability cover for dangerous dogs.

With the ban on the XL Bully breed, insurers will be alive to considerations such as 1) whether policies have been affected by the ban; 2) whether their customers are aware of its effect on cover; and 3) whether to continue to offer third party cover for exempt dogs.

Generally, incidents which occurred before the ban will continue to be covered under the policy. Cover for incidents occurring after the ban will be subject to individual policy terms and insurers will need to consider, amongst other things, whether the policy has expressly excluded cover for dangerous dogs.

If not expressly excluded, it should be considered whether the breed of the dog in question has been confirmed and whether the owner has complied with the relevant statutory requirements such as holding a valid exemption certificate and complying with the relevant conditions for owning a banned breed.

 

Read other items in Personal Injury Brief – October 2024