Rout v Howell

A dog owner may be negligent where a large dog, known to be boisterous and liable to jump up or knock people over, is exercised off its lead close to another person and unexpectedly knocks that person down. That evidence may establish a prima facie case of negligence unless properly explained. If the owner’s own explanation is accepted, throwing a ball close to another person with such a dog may itself constitute careless conduct. A claimant need not plead factual details that she could not have known, particularly where those details emerge from the defendant’s evidence and fall within the pleaded case.

The defendant sought renewed permission to appeal from a judgment of the Epsom County Court, given by His Honour Judge Hull QC on 21 November 2001, which held him liable in negligence after his German Shepherd knocked the claimant down while both parties were exercising their dogs in a field. The claimant said that the dog unexpectedly jumped onto her shoulder while off its lead. The defendant denied this and said that the dog had chased a ball, slipped on wet grass and collided with her legs.

The proposed appeal challenged the use of the ball allegation, the evidential basis for finding that the ball was thrown close to the claimant, and the standard of care imposed on the dog owner.

1. Application refused. Lord Justice Potter concluded that none of the grounds disclosed a realistic prospect of successfully challenging the judgment below.
2. On the claimant’s accepted evidence, there had been an unexplained jumping-up by a large dog being exercised off its lead near another person. This was coupled with evidence that the defendant knew the dog was boisterous, jumped up at people and had previously knocked people over. That combination was sufficient to establish a prima facie case of negligence in the absence of a proper explanation.
3. The judge had not imposed too high a standard of care. On the defendant’s own account, he threw a ball which landed about five feet in front of the claimant. The trial judge was entitled to find that throwing the ball close to her, while exercising a large and boisterous dog off its lead, was careless. The dog should have been exercised in a safe and open place well away from other people, with the utmost caution given its known behaviour.
4. The finding was not procedurally unfair. The claimant’s pleading covered the allegation that exercising this type of dog off its lead near a stranger was negligent. She had not seen the ball and could not reasonably have pleaded its use. The ball first became material through the defendant’s own evidence, and the judge was entitled to consider that evidence on the basis advanced by the defence.
5. The evidence also supported the conclusion that the claimant was visible to the defendant when the ball was thrown. If the judge rejected the defendant’s account, that rejection could not improve his position, since the claimant’s evidence independently disclosed a prima facie case of negligence.

Order: application refused.

1. Court of Appeal (Civil Division): renewed application for permission to appeal refused.
2. Epsom County Court: His Honour Judge Hull QC held the defendant liable in negligence on 21 November 2001.