Reid v Tyson

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Floissac, C.J.,Bryon, J.A.,Singh, J.A.
• Judgment Date: 27 September 1993
• Neutral Citation: MS 1993 CA 5
• Docket Number: No. 6 of 1993
• Date: 27 September 1993

Reid

and

Tyson

Floissac, C.J. Bryon, J.A. Singh, J.A.

No. 6 of 1993

Court of Appeal

Tort - Negligence — Appellant's dog bit respondent — Whether there was evidence of “scienter” — Whether appellant knew that dog has propensity to bite human beings — Whether there was evidence of negligence by appellant — Whether offer of compensation amounted to admission of liability.

1 JUDGMENT OF THE COURT: This is an appeal against an award by the learned Magistrate for District “A” for $500.00 damages and costs for personal injuries caused by a dog bite which the appellant's dog inflicted on the respondent at George St. Basseterre, St. Kitts.

2 The only witness who gave evidence at the trial was the respondent. She described the incident in this way: -

“I was on the street where defendant is living. On my way coming up the Dog attack me. It ran out of defendant shop and it bit me on my lower left leg and went back in the shop.”

3 The respondent also attested that the appellant's son offered her $30.00 to pay the doctor but she did not take it. The appellant did not offer any evidence but relied on a submission there was no case to answer.

4 The issues raised by this appeal are whether: -

1

The failure to lead evidence on the “scienter” doctrine was fatal. 2. It was open to the Magistrate to find for the appellant on the ordinary law of negligence. 3. It was open to the Magistrate to find for the appellant on the basis of an offer for compensation or an admission of liability.

1. “Scienter”

5 It was an admitted circumstance that there was no evidence on record to suggest that the appellant knew that her dog had they propensity to attack people.

6 The legal principles were clearly expressed in the leading case of DRAPER v. HODDER [1972] 2 All E.R. 210 where liability for personal injuries caused by dogs was fully examined. In dealing with the issue of Scienter Edmund Davies, L.J. said at p.217:

“A person keeping an animal ‘mansuetae naturae’ which he knows has a propensity to do a particular kind of mischief is under an absolute duty to prevent it from doing that kind of mischief and is therefore liable without proof of negligence for any damage caused by the animal's acting in accordance with that known propensity. But, to render the defendant liable, proof must be directed to his knowledge regarding the propensity of the individual animal whose activities have given rise to the institution of legal proceedings.”

7 This principle was applied in our jurisdiction in the case of MENDES v. PHILBERT 16 W.I.R. 255.

8 I therefore rule that the failure of the respondent to lead evidence that the appellant knew that her dog had a propensity to bite human beings, was fatal to a claim based on strict liability for the personal injuries suffered from the dog bite.

2. Negligence

9 There is no doubt, however, that as expressed by Roskill, L.J. at p.227 in DRAPER v. HODDER (supra) the common law applies “to the keeper of a domestic animal the duties imposed by the ordinary law of negligence in addition to the more limited liability imposed on him by the doctrine of scienter.(

10 Negligence is based on a factual finding that in the circumstances of the case there was a duty to take care. In cases where a tame dog...