May it please the Court. I, Miss Kasia Hama, appear with my learned junior, Miss Sofia Luque ,on behalf of the appellant, Mr Alfred Williams. My learned friend _________________ appears for the respondent, Ms Butcher with his / her learned junior, _________________.
This is an appeal against the trail judges decision. The Court of first instance held that a duty of care was not owed to the appellant.
The appellants appeal on two grounds.
I intend to address the following ground using 1 submission. That all elements of the Caparo test are satisfied, and especially that it is fair, just and reasonable to impose a duty of care on the respondent.
My learned junior intends to address the second ground, that the duty of care that was owed, was breached. That the respondents actions to warn the appellant of the risk were insufficient to meet the expected standard of care.
I will also dispense with the case summaries,unless Your Lordships require them as and when they arise.
Your Ladyships and Lordships, If it pleases the court, I will begin my submission.
I will be referring to tab 4 of the bundle, the case of Caparo v Dickman
19hundredand90 volume 2 Appeal Court page 605 House of Lords
A firm of accountants appealed against a decision of the Court of Appeal in which it was decided that the accountants owed a duty of care to the appellant shareholders when producing an audit report required by statute.
This case established the incremental test which provides 3 stages that need to be proven in order for there to have been a duty owed. The previous judge concluded that the first 2 elements were satisfied, that is was reasonably foreseeable that the defendants failure to take care would cause harm to the claimant. And that there was sufficient proximity in time and space. This should be enough to be able to conclude that it is fair to impose a duty on Ms Butcher.
“In a state of transition or development as the HOL pointed out …. this is an area of law which is developing pragmatically and incrementally.” Referring back to this case, Anderson v Butcher. This may be a very common incident that occurs in parks however, if the court doesn’t recognize this, people like Ms Butcher will proceed in carelessly playing with their dogs in public places and many more incidents will arise.
Lord Bridge stated “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
In this case, Mr Anderson was riding his bike in a park where it is common to cycle. There are 2 main parts in the park, an open meadow area and wooden path leading into the woodland. As it was noted that the park was suitable for both cyclists and dog owners, it is fair to state that the open meadow is where most dog owners would be playing with their dogs and the path, would be mainly used by cyclists and pedestrians. The fact that Ms Butcher threw the ball towards the path covered by trees, was careless and irresponsible. The park size is over 700 acres meaning that there was lots of open space for her to throw her ball and play with her dog in the open space.
A supporting case of Bourhill v Young 19hundred and 43 Appeal Court page 92 found in tab 2 concluded that, in order to sustain an action for damages for negligence it is not necessary to prove physical impact. Fright resulting in illness is sufficient. In this case, there was physical impact between Ms butchers dog and Mr Anderson, therefore the respondent should be held liable for damages as she failed her duty of care. Mr Anderson fell off his bike, going over the handlebars hitting the ground with force due to the dog running into the back wheels of the bike.
The claimant was a pregnant fishwife. She got off a tram and as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing.The claimant heard the collusion but did not see it.
The claimant went into shock and her baby was still born. She brought a negligence claim against the defendant’s estate.
No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred.
Your Lordships and Ladyships, This leads me onto the case of Donoghue v Stevenson 19Hundred and 32 Appeal Court page 562 , tab 1
Mrs Donoghue went to a café with a friend. The friend brought her a bottle of ginger beer and an ice cream. After drinking half, she poured out the other half and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. Her claim was successful. This case established the modern law of negligence and established the neighbour test.
In the course of Donoghue v Stevenson, it was stated that the law impose a duty on individuals to take care, in certain circumstances, not to carelessly harm others.You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
In this case, Ms Butcher acted carelessly and her actions resulted in Mr Andersons injuries. Dog owners should be aware that once their dog is not on a lead, they could be classed as dangerous. They are let out into the open, and therefore dog owners, in this case, Ms Butcher should have taken extra precautions in order to not cause harm to anybody around them. Throwing the ball into a direction where she couldn’t see the full span of that area, meant that her actions were reckless. She had a whole meadow to play with her dog, yet she chose to make her dog run in the direction of the path. Where in the early evening of any day, it is likely to be busy.
As a general rule, dog owners have a duty to use reasonable care in order to prevent their animals from injuring others in predictable ways. And under common law, the defender (dog owner) owes the pursuer (Mr Anderson) a duty of care and the defender can be liable where there is injury or damage caused by an animal.
Ms Butcher could have foreseen her dogs actions and acted in a way that would not have resulted in injuring Mr Andersons. My learned junior will expand on this during her submissions.
Lord Atkins made a clear statement in Hambrook v. Stokes Brothers
19hundred and 25 volume 1 Kings Bench page 141 found in tab 3 of the bundle.
He stated that “a careless pedestrian who walking in a hurry negligently knocks against another person is liable for all the consequences of his negligence”
A mother let her children to roam around 20 to 30 metres away from her. Moreover, she saw a lorry swiftly driving down a hill and round a bend.
Unfortunately, there was a collision which was out of sight. The claimant feared that her children were involved. As a result of the incident, the claimant (mother) suffered a mental injury.
In this case, a careless dog owner, playing with her dog, negligently caused her dog to run into a cyclist, should be liable for all the consequences of her negligence.
After considering all the facts and evidence I conclude my submission that on the balance of probabilities, in failing to call back Charlie, which she clearly had time to do, Ms Butcher exposed Mr Anderson to risk of injury. Therefore, should be held liable.
I therefore invite this court to find in favor of the appellant’s appeal. A duty of care was owed to the appellant, though dog walkers and cyclists were common at the park, it would be considered fair, just and reasonable to impose a duty of care on the respondent.
Unless I can assist your ladyship/lordship any further, I have concluded my submission.
