Addis & Ors v Campbell & Anor

Negligence involving an uncontrolled dog requires a foreseeable risk of injury, assessed by reference to what a reasonable person in the defendant’s position would have contemplated at the time. A mere possibility of injury, or the occurrence of an accident, is insufficient. There must be a sufficient probability of injury to justify the precaution said to be required. Where there is no relevant history of aggression or collision and no reason to anticipate injury, failing to resume control of the dog does not establish negligence. The court also observed that a judge with substantial concern about apparent bias should disclose it promptly, although the appeal was decided on negligence.

Brian Addis was injured after allegedly colliding with Taz, a dog owned by Debbie Campbell and being walked by George Leaman. The Recorder dismissed the negligence claim, finding that Taz had not caused the accident and that neither respondent had been negligent.

The personal representatives appealed. They alleged an appearance and real danger of bias arising from matters that the Recorder had not disclosed. They also challenged the factual findings and argued that Mr Leaman had negligently failed to control Taz. The Court of Appeal considered whether negligence could be established on the undisputed evidence, assuming for that purpose that Taz had caused the collision.

The Court of Appeal, in a judgment delivered by Lord Justice Stanley Burnton with which Lord Justice Aikens and Sir David Keene agreed, dismissed the appeal. The court did not determine the bias issue because the negligence issue was dispositive.

1. For the purpose of deciding the appeal, the court assumed that Taz had collided with Mr Addis and caused his injuries. The agreed expert evidence described Taz as well managed, socialised, non-aggressive and well coordinated. There was no evidence of any previous collision or attack. Mr Leaman had regularly walked Taz for about 18 months without incident. The appellants therefore could not establish negligence in permitting Mr Leaman to walk Taz or in allowing the dog off the lead.

2. The only pursued allegation was that Mr Leaman should have resumed control of Taz after emerging from the river. Applying the approach stated in Jones v Whippey [2009] EWCA Civ 452, negligence is not established merely by comparing 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 make it foreseeable.

3. There was no basis for finding that Mr Leaman could or should have foreseen a risk of injury from leaving Taz off the lead. His fall in the river was a pure accident and occurred only shortly before Mr Addis’s accident. Imposing liability for failing to take control in those circumstances would impose an unjustifiably stringent duty of care.

4. The court observed that where a judge has substantial concern about an appearance of bias, full disclosure should be made to the parties as early as possible, preferably before trial. That observation was not necessary to the decision.

The Recorder’s dismissal of the claim was upheld and the appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal, deciding the case on the negligence issue.
• Plymouth County Court: Ms Recorder Phillips dismissed the negligence claim.