Whippey v Jones

A person who owes a duty of care is not negligent merely because injury was reasonably foreseeable as a possibility. A reasonable person in the defendant’s position must have contemplated a sufficient probability that injury was likely to follow from the relevant act or omission. A remote possibility of injury does not suffice.

Accordingly, a dog handler does not fall below the required standard merely by allowing a dog to run free where it might approach or frighten another person. The issue is whether the dog’s known characteristics made physical injury sufficiently probable that a reasonable handler ought to have anticipated it and taken further precautions.

A runner suffered a broken ankle after a Great Dane made physical contact with him on a riverside footpath. He claimed damages from the dog’s keeper in negligence and under section 2 of the Animals Act 1971.

HHJ Bartfield in Pontefract County Court dismissed the statutory claim but upheld the claim in negligence. The judge awarded £15,359.10, including interest. The keeper appealed, contending that the judge had applied an incorrect standard of care.

The central issue was whether the possibility of injury was sufficient, or whether a reasonable handler had to contemplate a sufficient probability that physical injury was likely to result from allowing the dog off its lead.

1. Appeal allowed unanimously. Aikens LJ delivered the judgment, with which Rimer and Waller LJJ agreed. The county court had applied an incorrect legal test when deciding that the dog’s keeper had acted negligently.

2. Liability in negligence for personal injury ordinarily requires a duty of care, breach of the applicable standard, causation and damage which is not too remote. The existence of a duty, causation and remoteness were established. The only disputed question was whether the keeper’s conduct fell below the standard of a reasonable handler in the circumstances.

3. Breach is not established merely by comparing the defendant’s conduct with an abstract standard of reasonable behaviour. The court must be satisfied that a reasonable person in the defendant’s position would contemplate that injury was likely to follow from the relevant act or omission. A remote possibility is insufficient. There must be a sufficient probability of injury to cause a reasonable person to anticipate it. The court applied the principles stated in Donoghue v Stevenson [1932] AC 362, Bolton v Stone [1951] AC 850 and Glasgow Corporation v Muir [1943] AC 448.

4. The county court had asked whether the dog might reasonably foreseeably cause some form of injury. That formulation gave insufficient weight to the probability of physical injury. The dog was gentle and had no known tendency to jump at or make contact with people. Its known behaviour was to approach and bark from several feet away. A reasonable handler therefore would not have anticipated physical injury to an adult park user through contact of the kind that occurred.

5. The county court’s treatment of section 2(2)(a) of the Animals Act 1971 confirmed its error. It found that physical injury was possible but was not damage of a kind which the dog was likely to cause. That finding was inconsistent with the probability required for breach in negligence. The negligence judgment was accordingly set aside.

• Court of Appeal (Civil Division): In Whippey v Jones [2009] EWCA Civ 452, the court unanimously allowed the keeper’s appeal and set aside the finding of negligence.
• Pontefract County Court: HHJ Bartfield dismissed the claim under section 2 of the Animals Act 1971 but found the keeper liable in negligence and awarded £15,359.10, including interest, plus costs.