Is a Dog allowed the first bite as the old saying goes?

The Law bites back

By Chris Fairfax,

Legal Director of independent UK Pet Insurance providers; Animal Friends Insurance

Is a dog allowed its first bite as the old saying goes? It s an important question for all those who look after dogs, whether they are the legal owners or not. It is also a consideration to take into account when deciding to take out pet insurance, especially dog insurance. The answer lies in a combination of statutes and common law i.e. law made by judges through thousands of cases over the years. The basic common law position is that

The basic common law position is that a dog's keeper is liable for an injury his or her dog causes to a person if the keeper knew or ought to have known that the dog was likely to attack someone or cause an accident. This is part of the common law of negligence where the court looks not only at the dog keeper's actual knowledge but also at the knowledge that keeper should have had if he had been a reasonable person in those circumstances. So the court would assess all the relevant issues, such as what the keeper did or didn't do; the history of the dog; the breed tendencies; whether it has posed a danger to other dogs; whether the dog might have been more dangerous at the time because it had young; whether the keeper was in breach of any statutes or bylaws etc.

The important point is that the law doesn't require evidence of previous bad behavior - so it doesn't automatically "allow the first bite"; the law simply looks at all the circumstances in order to decide what was reasonable. I have also deliberately referred to a dog's "keeper" as the law applies to anyone who has control of a dog at the time of the incident, not just to the legal owner of that dog - this is an important point for those who run a dog walking or pet sitting business; or even those who take a friend's dog out for occasional exercise and who may not be covered by the dog owner's pet insurance. Statute has added to the basic common law position. I should make it clear though that statute imposes criminal penalties (e.g. fines and imprisonment) whereas the common law only imposes civil penalties (e.g. an award of damages in a personal injury claim).

With dogs, the most infamous piece of legislation was the Dangerous Dogs Act 1991. Whilst the Act was intended to deal with a narrow problem (fighting dogs) it ended up doing far more. It made it a criminal offence for any dog to be "dangerously out of control" in a public place or even in a private place where the dog was not entitled to be. And a criminal offence would be committed if there were just a "reasonable apprehension" that a dog, out of control in a public place, might cause injury - even if it didn't! Where no injury was caused, a hefty fine or imprisonment could still be imposed; where injury the penalties were steeper and a destruction order could be imposed on the dog concerned.

Although the 1991 Act achieved a high profile, other statutes also supplement the basic common law and so affect the dog keeper. In particular, the Animals Act 1971 says that those having control of dogs have a duty to take reasonable care to ensure that their dogs do not cause injury or damage by straying onto the road. If an accident happens, then not only may a criminal offence have been caused under the 1971 Act but, more probably, the keeper will face a civil claim for damages in negligence. With personal injury claims blossoming thanks to the "no win no fee" services now widely advertised on TV this possibility should be taken seriously. That is why pet insurance - dog insurance in particular - offers public liability cover which would protect you against such claims.

So what if the dog you are looking after escapes and you simply can't find him? Under the Environmental Protection Act 1990 dog wardens are empowered to collect stray dogs. If the owner can be found quickly that's fine, otherwise the Council can rehome a dog after just seven days . When they do, legal ownership in that dog also passes to the new owner - the old owner has absolutely no comeback at all if he finds out on the eighth day. This may seem draconian but dogs are also subject to the Control of Dogs Order 1992 that requires every dog in a public place to have a collar and tag with the owner's name and address. An owner could be liable to a hefty fine if he lets a dog out without a collar and tag although enforcement may be difficult in practice.

You should also find that pet insurance helps you by offering to cover a reward to help find your dog. Chris Fairfax is a Barrister and solicitor. He is a contributor of legal articles on animals and the law to major pet magazines and he is also a Director of Animal Friends Insurance, leading providers of cheap UK pet insurance. Animal Friends Insurance offer a wide range of pet insurance policies from basic to genuine full lifetime cover. They also insure older pets. Animal Friends can be contacted on 0844 55 70 300 or at www.animalfriends.org.uk where policies can be bought online.