HC 212/04

THE HIGH COURT 

[2001 No. 771 4P]

BETWEEN/

FRANCES QUINLISK

PLAINTIFF

AND

ROSS KEARNEY, JOHN KEARNEY AND 
BERNADETTE KEARNEY

DEFENDANTS

Judgment of Mr. Justice Roderick Murphy delivered on 10th June, 2004.

1.	Outline
	Some time after 11.30 p.m. on a dry summer’s evening on the 7th June, 1999 the plaintiff was returning from a meeting of Muintir na Tire in Roscrea.  She was left off by her friend at the entrance to Sheehane estate where she and the defendants lived and was proceeding towards her house on the footpath at the side of the green, when a dog accosted her from behind in a threatening and hostile manner, causing her to fall to the ground.  She suffered an injury to her pelvis, was in considerable pain, crossed the road and crawled home holding on to the wall.
	The net issue in this case is whether the dog, which she described as a brown terrier-like dog, was in the care, management and/or control of the defendants.

2.	The plaintiff relied on the definition of owner in the Control of Dogs Act, 1986, the obligation of such owner under s. 9 and the liability arising under s. 21 of that Act.
“ ‘Owner’ in relation to a dog includes the occupier of any premises where the dog is kept or permitted to live or remain at any particular time unless such occupier proves to the contrary; . . .
‘Occupier’ includes a person who owns and occupies, as well as a person who occupies only, . . . 
‘Stray dog’ has a meaning assigned to it by section 11(ii) of the Act -includes any dog which appears to be unaccompanied by a person unless such dog is on the premises of its owner or of some other person who has the dog in his charge or of any other person with that person’s consent.
‘Dog warden’ means a person employed under section 15 of the Act as a person employed by the local authority for the purposes of the Act.”
	Section 15(2) states:-
“Every local authority has an obligation to establish and maintain one or more shelters for dogs seized, …  
A dog warden, pursuant to s. 11(i), shall take all reasonable steps to seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purpose of such seizure and detention.”
	Section 11(2) states:-
“A member of the Garda Síochána may seize and detain any dog that appears to him to be a stray dog and he may enter any premises (other than a dwelling) for the purpose of such seizure and detention.” 

	Section 11(4) allows that:-
“Whenever a stray dog is seized or detained pursuant to this section by a dog warden or a member of the Garda Síochána, the local authority or, as the case may be, the Superintendent of the Garda Síochána shall give notice to the owner or other person in charge of the dog, if the name of such owner or other person is known to it or him or can be readily ascertained, that the dog has been seized and detained and that the dog will be disposed of, or destroyed, after five days from the date of the notice. . .”
	Section 9(1) of the Act provides that:-
 “[t]he owner or any other person in charge of a dog shall not permit the dog to be in any place other than – 
(a)	the premises of the owner, or
(b)	the premises of such other person in charge of the dog, or
(c)	the premises of any other person, with the consent of that person, unless such owner or such other person in charge of the dog accompanies it and keeps it under effectual control.” 

3.	Liability of owner for damage by a dog
	Section 21(1) of the Act provides as follows:-
“The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog . . . and it shall not be necessary for the person seeking such damages to show a previous mischievous propensity in the dog, or the owner’s knowledge of such propensity, or to show that such injury or damage was attributable to neglect on the part of the owner.”
	It would appear, that in addition to the statutory liability, there also remains the common law remedy under the scienter action and, of course, the liability in negligence is provided for in Kavanagh v. Stokes [1942] I.R. 596 or in trespass (if the owner has commanded the dog to attack).
	Damage caused in an attack on a person need not involve physical contact – the word ‘attack’ though not defined in this Act has been judicially defined as including an assault which does not, necessarily, involve battery.  Indeed, in the commentary to this section Kerr, Irish Current Law Statutes Annotated at 86/32-44 suggests that physical contact may arise where a person falls and injures themselves when getting out of the way of an attacking dog.  
	It is clear that the s. 21(1) does not impose liability for any injury other than “damage caused in an attack on any person”.  Accordingly, where a dog runs out into the road and a motorcyclist collides with it causing himself injury, the necessary ingredients of ‘attack’ may not be present.

4.	Evidence of Plaintiff
	The plaintiff lives across the green from the defendants who are all members of the same family, being the son and his mother and father respectively.
	The plaintiff, in her evidence, described walking home having left her friend some 200 yards from her house.  She said she felt a tug on her left leg and saw a small medium brown coloured dog growling.  It did not have a smooth coat but the coat had a slight little kink or curl on it.  She said the dog pulled so hard that she turned around, lost her balance and fell.  The dog had come up from behind her as she walked on the path of the green with her back to the defendants’ house and going towards her own house.  She lay on the ground for a quarter of an hour with severe pain in her right hand side.  Her husband was at home and she spent two days lying in bed in a lot of pain.  Two days later her husband brought her by car to see her G.P.  She said the injury to her groin had exacerbated previous trouble she had had.  Two days later she returned to the same practice and was sent to Tullamore Hospital, 
X-rayed and given painkillers.  There was no bed available and she returned home where she spent six weeks in bed in severe pain, having to be carried to the bathroom.  She was then on crutches until January, 2001, some seven months later.  In relation to her previous problem she said that two discs had been removed in 1982 or 1983, and that she had had intermittent problems since then.  She had pain in her right hand side, in her back and a burning pain which eventually went down her back to her legs.  It was the exact pain that she had before the accident.  She had surgery and three epidurals which solved that pain.  She said that the pain started again in late 2001 but she had no pain now.  She went back to work in May, 2001, some seven months later - she was attending her doctor because of her back pain and then she developed rheumatoid arthritis at Christmas 2001.  At this stage she was advised by her G.P., Dr. McManus, to retire or else she would undo everything that he was doing for her.
	She told the court that in mid-August she had seen the dog going into Mr. Kearney’s (the third named defendant) house.  She went over on her crutches and asked Mr. Kearney if he owned the brown dog that was then at Mr. Kearney’s door.  She said that he replied that it was one of his son’s (the first named defendant) dogs and added that his son went hunting.  When she was sure that the dog belonged to Mr. Kearney she reported it to the dog warden.	
	Counsel for the defendants indicated that he accepted that there had been an accident and said that the only issue was as to the ownership of the dog.  The defendants denied owning the dog.  
The plaintiff agreed in cross examination that there were a lot of dogs around the housing estate, but could not say how many.  Counsel put it to her that Mrs. Maher, who lived beside the Kearneys, may have had a dog at the time.  The plaintiff said she was more aware of the Kearney’s black Terrier dog, which she had seen before the accident.  She said she kept away from the black dog when she walked her own dog.  She had a Labrador and later a retriever and was not worried about dogs.  She said that she saw the brown dog before she was off crutches.  She says that she had never seen the Kearneys walking dogs but that she saw someone from the Kearney’s walking the black dog.
	Having seen the dog towards the end of July or early August she said she knew it from its size and colour.  She approached the Kearney’s house and spoke with Mr. Kearney.  The dog was there.  She said she believed the dog disappeared after her solicitors wrote a letter to the Kearneys.
	She said that she did not complain to the guards as she did not want to cause trouble with neighbours and that she had asked the dog warden not to proceed. 
	She said she had met Mrs. Kearney, the third named defendant, in the supermarket, who had approached her and asked her what had happened and she said nothing about the Kearney’s dog.  The plaintiff said, that she did not know, at that time, that the Kearneys owned the dog.
	She said that she had been standing at her gate with a neighbour, John McMahon,  who spoke of Kearney’s black dog attacking him.  Then she saw the brown dog going into Kearneys’.  She was still on crutches but went over to Kearney’s house and met Mr. Kearney, the second named defendant, who said it was his son’s dog and that the dogs were getting out at night and that they had to get them back in between 2 and 3 a.m.  
	She denied that she had not been on crutches at that time and denied that it was the black dog outside Kearneys’ not the brown one.
	She said that she had spoken to the dog warden later when she was not getting any better.  In the beginning she did not want him to do anything.  She agreed that she had made a good recovery.  She accepted that she had not seen the brown dog, before the accident, the only dog she was aware of before then was the black dog.  
	She said there was no point in her reporting the matter until she knew who owned the dog.  When she knew, she telephoned the dog warden.
	She said the solicitor’s letter was sent in November, 2000.
	In re-examination she said she remembered meeting Mr. Keaney on a Saturday – his daughter answered the door.  Mr. Kearney was wearing a mustard-coloured, towelling bathrobe, and admitted that his son Ross owned the brown dog.
	On the 10th June, 1999 Dr. McManus described her injuries as acute discomfort and referred her to Tullamore Hospital.  By November, 1999 she was relatively mobile and was recommended to leave off the crutches.  Osteoarthritis and rheumatoid arthritis were diagnosed in 2000 in St. Vincent’s.  Her pelvis has healed.  The fall aggravated the pain in her lower back.  She was distressed.  He was of the opinion that stress after such an accident could lead to rheumatoid arthritis though this could not be proved scientifically.  The symptoms complained of by the plaintiff were not as a result of her fractured pelvis, but as a result of her lower back injury, but exacerbated by the fall.  She had made good progress and the pain would tend to subside with time.  There were a lot of other serious problems.  He had not seen her for psychosomatic complications.  She had had a second epidural, which gave some relief, on the 10th May, 1989.  From that period to the fall in 1999 there were no records regarding her back.  Osteo-arthritis had been diagnosed in 1986 and rheumatoid arthritis in 2000.  He had seen her six times in the year 2000 and four times in 2001.  Most of these consultations dealt with the accident and nerve pain in the upper left limb, lower back pain, and pain radiating down the back of her right leg radiating to her back.  He had advised rest and anti-inflammatories and to stop work, to have rehabilitation and not to use too many pain relievers.  She was making excellent recovery in her pelvis but the problems with her back persisted.

5.	Evidence of Mrs. Scully	
	Mrs. Lillian Scully also lived in Sheehane and kept dogs.  She said she recalls the Kearneys keeping dogs which were aggressive to her and to her dog.  She remembers a black and a brown terrier type dog, both dogs were bigger than a Jack Russell.  She remembers seeing the plaintiff on crutches.  She remembers a notice on the pillar of Kearneys’ house saying ‘Beware of Dog’ going back a few years – fifteen or sixteen years ago.
	The Kearneys have three children.  They had a pup for their children until that dog died.  She said that dogs always came out of Kearneys’ going back six, seven, eight or nine years before today.  She said she changed her route past Kearneys’ as dogs came from Kearneys’, which caused her trouble and that it had happened regularly.  
	She said that some six or six and a half years ago the dogs disappeared suddenly but that they were there after the accident on the green where she and the plaintiff had seen them near Kearneys’.  She never saw either the second or third named defendant walking the dogs.
	She said she remembered the plaintiff pointing out to her the dog that had caused the accident. 

6.	Evidence of Mr. Quinlisk
	Patrick Quinlisk, the plaintiff’s husband, remembered the Kearneys keeping dogs in 1999.  He described them as large-sized, hunting terriers which he saw when crossing the green when two dogs came out of Kearneys’ yard.  He said he had asked the Kearneys to keep them in.  He had had a golden retriever, a gun dog, whom he exercised in a field but it was killed.  He recollected that the Kearneys had a guard-type dog before, some ten to twelve years ago.  He said that Ross, the first named defendant, had dogs for hunting and had a trailer and exercised the dogs out in Murphy’s field for the hunting of badgers.  He said at the time of the solicitor’s letter the dogs disappeared.
	Under cross-examination he agreed that in June 1999 another family, the Quinlivans, had an English sheepdog and another small terrier but not a brown dog.  	He said he did not tell his wife that he was aware that Mr. Kearney had a small brown dog.

7.	Evidence of third named defendant	
	Mrs. Bernadette Kearney, the third named defendant, said that they did have a dog – a Doberman pup owned by her husband sixteen years ago.  That dog was poisoned and died.  The sign “Beware of Dog” was left there for years.  She said that they did not get another dog – neither her husband nor her son.  Her husband worked in buildings and was involved in a band at weekends.  She herself was working and she did not know if other dogs were around the house.  
	She said she had seen the plaintiff in the supermarket on crutches and that the plaintiff simply said, “I had a fall”. 
	She said she was laid off between the 29th May and mid-August, 1999 and had no subsequent conversation with the plaintiff.  She wasn’t at home when the plaintiff came to see her husband.
	She said she did not own any dogs nor did she let anyone else keep dogs at her house.
	Under cross-examination it was put to her that Mrs. Scully had seen the black and brown dogs.  She said that they did not own a dog but noticed dogs going in and out of her house – dogs out loose – she had worked full-time for fifteen years in Nenagh, 22 miles away.
	She said she did not say there were no dogs – not that she could recall.  There was no reason for them to adopt dogs.  They were not keeping two dogs at their house.
	She said she does not know why she did not go to the plaintiff to correct the mistake that she had dogs.  She said she went to see her solicitor rather than reply to the plaintiff’s solicitor’s letter.  She said that the first named defendant, Ross Kearney, was not living at home in 1999 when he was eighteen, he was with his girlfriend.  He did not keep dogs.  She said that her solicitor had told her to report the matter to her insurance company.

8.	Evidence of second named defendant	
	John Kearney, the second named defendant, said that he had not owned a dog for sixteen years when the children were six and seven years old.  That dog was poisoned at three weeks.  He was asked whether his son had kept dogs.  He replied that the Doberman “was the only dog we had”.  
	He agreed that the plaintiff came over some time in the summer without crutches.  He was 100% sure she was not on crutches.  He was getting ready to play in the band.  She said that “A black dog ran out of your house knocked me down”.  He said, “I am sorry, we don’t have a dog”.  Under cross-examination he said that he did not see her on crutches at any time, that he didn’t see any dogs in the house but did see dogs on the green.  He said he did not speak to the dog warden.  He said that, dogs could be at the gate or inside the gate, but nothing would come out of it as “we hadn’t owned a dog for eleven years”.
	He said that his brushes were worn shooing dogs out.  He agreed his wife would have had time between June and August to get in touch with the warden as she was unemployed at the time.  The solicitor’s letter shocked him more than upset him.  He did nothing about the letter.  He said he could not get rid of something he did not have.
	Mr. Kearney did not deny that Mrs. Scully had said that probably a brown and black dog came out of his premises and hassled her dogs. 

9.	Evidence of Ms. Murphy	
	Karen Murphy also lived in Sheehane and owned and Old English Sheepdog.  She knew the plaintiff who had owned a Golden Retriever and before that a Labrador.  She also knew Lillian Scully subsequent to June, 1999.  She said there were over a hundred houses in Sheehane, half or more had dogs as there were a lot of children, a few houses would have had more than one dog.  The Kearneys lived diagonally across from her and for thirteen years she knew them, having had a lift with Mrs. Kearney to work.  She said that in June, 1999 neither Mr. nor Mrs. Kearney nor Ross owned dogs.  She never knew them to own dogs.  She said that Ross was not living with the family.  She said he was gone around Christmas 1998.  She never saw the Kearneys with dogs.  She said that she had problems with dogs but never reported it.  They would run in and out of her gates.  
	She said that Ross did not hunt as there was nowhere to hunt.

10.	Evidence of Ms. Maher	
	Bernadette Maher lived next door to the defendants for 22 years.  She also believed that there were some 68 houses in Sheehane.  In June, 1999 she owned a Labrador.  The Kearneys did not own any dog – neither brown nor any other.  A good few houses owned dogs.  There were always dogs running around, “I’d just run them out” she said.  There was a time in Kearneys’, she said, when they owned a Doberman some sixteen to seventeen years ago, for their children.  Since then they had not owned any dogs.
	She said that Ross moved out the Christmas before 1999.  
	In cross-examination she said she was a very good friend of the Kearneys as they were in Sheehane for the same length of time.  She does not remember Mrs. Kearney being home in the summer of 1999.
	She kept her Labrador on a chain.  The Kearneys had had a place for their Doberman with a fence around it.  There were no more than 68 houses, 20 to 30 houses were around the green, a lot with dogs.  She had often seen Mrs. Scully with her two dogs but did not see her that often as she was working. 
	She did not remember the black and the brown dog.  There were loads of black and brown and black and white dogs.  She said that the day before this trial there was a brown dog in her back garden.  She did not know who owned it.	
	Ross moved out at Christmas time.  She remembers giving presents to Ross at Christmas, it could not have been the following year.  She continued giving presents.

11.	Decision of the Court
11.1	The Control of Dogs Act, 1986, is a radical piece of legislation for a country where dogs proliferated.  The very title of the Act is on control rather than on registration (which is a requirement from the previous legislation).
	The presumption of ownership is one of those radical elements in the Act that deem ownership on occupiers of any premises where, not alone the dog is kept but is permitted to live or permitted to remain at any particular time.  The onus of proof is on the occupier to prove to the contrary.
	The issue of ownership in this case is critical. 
	The court has to be satisfied, on the balance of probabilities, from the evidence of the second and third named defendants that none of the three defendants kept a dog or permitted a dog to live or to remain for any particular time in their premises.  

11.2	Plaintiff’s evidence
	There is no dispute regarding a small medium brown dog tugging at the plaintiff causing her to lose her balance and fall causing her an injury which exacerbated a previous complaint.
	In relation to the ownership of the dog she said that in mid-August she had seen the dog going into the defendants’ premises and went on crutches and spoke with the third named defendant who said that the dog was the son’s (the first named defendant).  The dog was at the door.  The third named defendant admitted meeting her but denied that he had said that the dog was present or that it was his son’s dog.  He said that she was not on crutches.
	Unfortunately the first named defendant did not give evidence in relation to whether he was or was not in his family home in June, 1999.  His testimony would have been of help to the court in relation to whether he had a dog or hunted or not.

11.3   Mrs. Kearney, in her evidence, said that the family did not get another dog when the Doberman pup died sixteen years beforehand.  She did not own any dogs nor let anyone else keep dogs at her house.  Under cross-examination she said that she had noticed dogs out loose going in and out of her house.  There was no reason for them to adopt dogs.

11.4   Mr. Kearney said the Doberman was the only dog they had:  they had not owned a dog for eleven years.  There were dogs all over the place.  He did not have time to get the warden to get rid of the dogs.
	He did not deny that a dog coming from his house may have hassled Mrs. Scully’s dogs.

11.5   Both Ms. Murphy and Ms. Maher gave evidence that the Kearneys did not own dogs but that there were dogs around.  Both said that the first named defendant was not living with the family and had moved out in Christmas 1998.
11.6   Onus of Proof
	The onus is on the defendants to discharge the presumption that they were owners of the dogs.  The defendant must prove that they did not keep dogs or allow them to remain in their premises.  
	Given the radical nature of the legislation it would seem to me that the simplest way of rebutting the presumption of ownership was to tell the plaintiff, at the time she met the second named defendant, that not alone did they did not own dogs but that they did not permit dogs to live or remain on their premises.  The second named defendant simply said “[W]e don’t have a dog” when the plaintiff had said that a dog had come out of their gate and knocked her down.  
	A simple response to the solicitor’s letter of November, 1999 would, of course, have been a further opportunity to rebut the presumption of s. 9 of the Act.

11.7	The evidence of Mrs. Lillian Scully is, to my mind, compelling with regard to the presence of dogs in and around the defendants’ premises.  She had identified a black and a brown dog.  She had referred to the black dog as having a mischievous propensity.
	I accept, of course, the second and third named defendants’ evidence that they did not have or own a dog.  That evidence is corroborated by Ms. Murphy and Ms. McMahon.  However, as is clear from the definition section of the Act, ownership is defined very widely indeed in relation to the occupiers of premises.  
	John Kearney’s evidence of brushing the dogs out indicates the presence of dogs at his premises, whether these were strays or not.  If they were strays then the defendants should have been aware of the risk of liability once they were kept or allowed to remain on the premises.  There is provision under the Act at s. 13 that any person who finds and takes possession of a stray dog is obliged to return the dog to its owner, deliver it to a dog warden or detain the dog and give notice in writing to the Member in Charge of the nearest garda station or to a dog warden.  In such a case the occupier would not be deemed to be the owner until one year has passed (see 13(4)).

11.8	The first named defendant
	I am satisfied from the evidence of several of the witnesses that the first named defendant was eighteen at Christmas 1998, some six months before the accident.  Several of the witnesses said that he had left home to be with his girlfriend and some said that he did not have dogs.  The evidence in relation to his having left home was given by Karen Murphy, Bernadette Maher and, in re-examination, by his mother, the third named defendant.  Mrs. Maher referred to giving presents to Ross at Christmas, denied that he could have moved out the following year and she told the court that she continued giving him presents at Christmas.  It does not seem to me that the certainty of this evidence is compatible with the vagueness of the evidence regards presence of dogs around the area.
	The evidence in relation to the first named defendant having left the premises in Christmas 1998 when he was 18 rests on the bare assertion of his mother, the second named defendant and Ms. Murphy and Ms. Maher.  The latter corroborated her recollection by reference to Christmas presents which she continues to give to the first named defendant.
	There appeared to be less certainty regarding the presence of dogs in and about the defendants’ premises.  Ms. Maher said that the Kearneys did not own dogs but did not remember Mrs. Kearney being home during the summer of 1999.  Ms. Murphy said she never saw the Kearneys with dogs.  
	The first named defendant did not give evidence.
	The court, on the balance of probabilities, finds in the circumstances that the defendants did own the dog in question in that they as occupier or occupiers one or more of them permitted the dog to live or remain at his, her or their premises.
	None of the defendants have proved, on the balance of probabilities, that they were not owners of the dogs that had attacked and caused the plaintiff the damages which she suffered.
	The dog was not on the premises of the defendants at the time of the incident and was not accompanied by the owner or any person and, accordingly was not under effective control as required by s. 9 of the Act.
	It follows that the defendants are liable for the damage caused pursuant to s. 21(1) of the Act.  In terms of liability the defendants are jointly and severally liable.

11.9	Damages
	I have carefully considered the two reports of the plaintiff’s General Practitioner, Dr. George McManus, and the report of Mr. Sheehan the orthopaedic surgeon of 10th November, 2003.
	Mr. Sheehan found a fracture to the pelvis requiring hospitalisation.  The plaintiff was on crutches for seven and a half weeks.  She had previous spinal surgery for a disc prolapse in 1982.
	She had some intermittent pain since then.  At the time of his report her pain was in the medial aspect of her right thigh with occasional flares up of that pain.
	Her interior pubic ramus may have fibrous union.  There was virtual fusion of L4 and 5 vertebrae and a gross narrowing of L4/S1 disc.  She now moved freely in his opinion.  The previous back problems, unrelated to the present incident, continue.
	The special damages in relation to the plaintiff’s being out of part-time work had been agreed at €1,600.
	Having regard to the medical reports I would assess general damages in the sum of €16,000.
	There will be a decree in the sum of €17,600.