Quamina v Cherry et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Kokaram, J.
• Judgment Date: 21 July 2006
• Neutral Citation: TT 2006 HC 61
• Docket Number: S-556 of 1995
• Court: High Court (Trinidad and Tobago)
• Date: 21 July 2006

High Court

Kokaram, J.

S-556 of 1995

Quamina

and

Cherry et al

Appearances:

Mrs. L. Maharaj S.C., Ms. S. Maharaj instructed by Ms. Isaacs for the plaintiff.

Mr. R. Amour S.C., Ms. V. Gopaul instructed by Ms. G. Maharaj for the defendants.

Negligence - Personal injury — Dog attack — No previous incidents of violence — Knowledge of dangerous propensities — Duty of Care — Action in common law scienter failed — Action in negligence succeeded — Risk of danger was not guarded against.

Damages - Personal injury — Dog attack — Traumatic attack — Plaintiff bed ridden for three weeks — Plaintiff obtained scars to her legs, buttocks, back, arms and neck — Plaintiff's clothes were shredded — General damages of $48,000 awarded — Special damages were assessed in the sum of $23,872.74 — Future therapy of $11,770 awarded.

Kokaram, J.

1. INTRODUCTION:

1.1 We may never fully understand the animal kingdom and the behaviour of some animals may be difficult to predict. However, over the years dogs, and man have been able to peacefully co-exist so much so that even though being a descendant of wolves, known to be vicious creatures, dogs have now been socialised to being “man's best friend” and are now very much a feature of a family home. However as this case readily reminds us, some dogs are capable of displaying ferocious power, tapping on their instincts suppressed by socialisation. Recently legislation has been passed in this jurisdiction to protect the public at large from, and impose a statutory responsibility on owners of, those dogs which are deemed to be “dangerous.”

1.2 In this action Ms. Diane Drayne Quamina, the plaintiff herein and the sister-in-law of the defendants, prior to May 1992 held no anxiety, nor fear of dogs. However, at around 7 p.m. on 12th May 1992 the plaintiff was walking towards the defendants’ home when she was the victim of an attack by three dogs at The Park, Glencoe within a short distance of the defendants’ front gate.

1.3 It was a very serious attack. She was pinned against the neighbours’ white gate. All three dogs continuously jumped and snapped at her. One dog grabbed her leg and feet. One dog eventually had her by the neck, one by the leg and one by the back of the head. It was an attack that had her traumatized. She thought she was near death. She screamed continuously when eventually she was saved by a neighbour Mr. Michael Narine, the good Samaritan in this story, who lived some distance away at the bottom of the hill from the defendants. Her clothes had all but been torn to shreds. Cloaked in a blanket to cover her nakedness, she obtained medical attention that evening at the Port of Spain General Hospital. The plaintiff contends that it was the defendants’ three (3) dogs that attacked her that night.

1.4 Brutus, Sampson and Cressida were the three (3) dogs owned and kept by the defendants, Jackie Quamina Cherry and Anthony Cherry at their home No. 53 The Park, Glencoe. Their residence was situated at a cul–de–sac on a hill. The Thomas', Welch's and Carrington's were all neighbours of the defendants and there were other dogs owned and kept in neighbouring residences at The Park, Glencoe.

1.5 Brutus was a German Sheppard commonly known as an Alsatian. His owner Mr. Cherry was very proud of this stocky tan coloured thoroughbred and according to him, taught this dog tricks to show him off in walks around the Savannah.

1.6 The other two dogs were a cross between Doberman and Alsatian commonly known as mixed breeds or “refined pot hounds” [As described by Mr. Cherry], definitely not “first cut” [As stated by Dr. Toby in his cross-examination] they however exhibited the physique resembling that of a Doberman.

1.7 From all accounts it appears that these dogs were very sociable animals and interacted congenially with the neighbours of the defendants including minors. There were no incidents of these animals biting any human being or demonstrating violent or vicious traits towards humans or any allegations thereof until 12th May 1992.

1.8 To this day no one knows what triggered the attack.

1.9 It is as a result of this attack that the plaintiff launched these proceedings. She explained to the first defendant “I hope that you will not take offence in the fact that I am taking action against my attack from the dogs. I felt it was something that always stood in the way of us becoming close friends.” [plaintiff's letter to the second defendant dated 25th April 1996]

2. THE ACTION:

2.1 By writ of 15th May 1995 the plaintiff claimed against the defendants damages for the loss and personal injuries sustained by the dog bites by the defendants’ dogs who knew or ought to have known they were dangerous and/or had dangerous propensities [The scienter action] and/or caused by the negligence of the defendants in the care and/or control of their dogs.

2.2 The narrow issue of fact to be determined is essentially whether these dogs were dangerous and/or known to be dangerous dogs by the defendants and calls for an examination of the duty of care of owners of dogs in their care and control.

2.3 The heart of the plaintiff's case is pleaded in paragraphs 5 and 6 of her Statement of Claim:

The defendants knew that the dogs were dangerous and/or had dangerous propensities as aforesaid in that the dog and/or all the dogs had attacked other animals and/or persons on divers occasions in the past. 6. And/or alternatively the defendants as owners and/or keepers who were responsible for the care and/or control and/or of the management of the said dogs were negligent in allowing the dogs to attack the plaintiff

PARTICULARS OF NEGLIGENCE OF BOTH DEFENDANTS:

• 5 a) Failing to restrain and/or control and/or supervise the dogs to prevent attacks.

• b) Permitting the said dogs access to the public by failing to keep the gates of the premises closed.

• c) Failing to have sufficient and/or regard for persons approaching and/or entering the premises.

• d) Failing to give any or any adequate warning of the presence of dangerous dogs on the premises.

• e) Knowing the dogs to be dangerous, failing to stop and/or prevent the dogs from leaving their premises and going onto the public road way and thereby attacking the plaintiff.

• j) Failing to muzzle the said dogs to prevent injury from attacks.

• g) The plaintiff will rely on the happenings of the event itself as evidence of the negligence of the defendants.

• h) By reason of the matters hereinbefore appearing the plaintiff has suffered pain and injury and has sustained loss and damage.”

PARTICULARS OF NEGLIGENCE OF BOTH DEFENDANTS:

2.4 In her further and better particulars she stated:

“2. The defendants never permitted their visitors including the plaintiff and her former husband the second defendants’ brother Richard to walk past the dogs unless the defendants or either of them were there to control them.

The defendants kept the dogs as guard dogs for the protection of themselves and their property. Whenever visitors including the plaintiff and the defendants’ relatives visited the defendants’ home the defendants would control the dogs and/or lock them up before permitting the visitors to enter the premises.”

2.5 The defendants denied knowledge of any fierce or mischievous nature in the animals and, that the dogs were kept as pets and within the confines of the defendants’ premises. The main pillars of their Defence is found in the following paragraphs of its Defence:

• “4. Alternatively, (and not admitting that which is denied) if the plaintiff was attacked by a dog or dogs kept by the defendants on the said premises the said dog or dogs were not, and were not to the knowledge of the defendants, of a fierce or mischievous nature or accustomed to bite mankind or animals.

• 5. The defendants deny ownership and/or being responsible for the dogs alleged or referred to in paragraph 4…If which is not admitted, the dogs referred to in paragraph 4 of the Statement of Claim are intended to refer to the defendants’ said dogs, it is denied the same were kept and/or trained as guard dogs, or were allowed to roam freely or to attack persons or to cause injury as alleged or…at all material times the said dogs were kept as pets and were kept within the defendants’ said premises which were fenced, with gates and which gates were closed.

• 6. It is denied that the dogs were dangerous or had dangerous propensities and/or the alleged or dangerous propensities were known to the defendants or either of them. It is further denied that at any time the said dogs had attacked and/or killed any other animals or persons as alleged or at all.

• 7. It is denied that anything done by the defendants or any of them in relation to keeping care and control of the said dogs and/or management was done negligently or negligently in relation to the plaintiff or at all.”

2.6 In its interrogatories the defendants state:

“15. Q. Were the dogs referred to in the Amended Statement of Claim and/or the Defence not kennelised and/or chained and/or secured prior to the 12th May, 1992?

A. Prior to the 12th May 1992 the dogs were not chained. There was and open kennel for their use. At all material times before that date they were secured by reason of the fact that the premises were fenced and with a secured/closed gate at the drive-way entrance.”

2.7 At the commencement of the trial leave was granted for the re-amendment of the Statement of Claim and the late filing of certain witness statements.

Witness Statements:

2.8 In this trial the witnesses gave the majority of their evidence in chief by means of filed witness statements which were to be filed pursuant to orders made at the hearing of a Pre Trial Review.

2.9 It is a novel development in the conduct of trials that witness statements are being prepared and used as a witness's evidence in chief. The order to file witness statements in this matter was made during...