Legal Research Trail

(1) The client’s problems

The client’s problem is that he was bitten by a guard dog and his dad is acting on his behalf,
Mr Gordon Connell by bringing a claim against either (1) BBB (owners of the site) or HJS
(security firm).

I am seek to advised on the general damages for pain, suffering and loss of amenity and
whether disclosure of any CCTV footage is appropriate

(2) Search terms (‘keywords’)

I have researched what law Jason can rely on if he want to successfully issue a claim. By
doing that, I have type in the relevant search terms to identify the relevant area of law. The
resources I have used to identify the relevant area of law is “Lexis Nexis” and the Clerk &
Lindsell textbook on Torts.

As the office manager, Penny stated that Jason was a trespasser and that there were
warnings attached. Thus, the following keywords are my searches to try to find the relevant
area of law.

Construction
Trespassers
Children
Animals
Dogs
Guard Dogs
Warnings
Notices
Security
Pain
Private
Trespasser
Suffering
Loss of amenity

Overall, “construction” and “Security” did not appear on any of the search terms in the
textbook of Clerk and Lindsell, whereas “dogs” and “private” did not produce any useful
resources on Lexis Nexis.

(3) The relevant law

Regardless, using the remaining useful terms, I have managed to identify the relevant law .

The relevant law is the Occupier’s Liability Act 1984. The relevant sections are s1(3), s1(4),
s1(5) and s1(6).
S1(3)An occupier of premises owes a duty to another (not being his visitor) in respect of any
such risk as is referred to in subsection (1) above if –
(a) He is aware of the danger or has reasonable grounds to believe that it exists;
(b) He knows or has reasonable grounds to believe that the other is in the vicinity of the
danger concerned or that he may come into vicinity of the danger (in either case,
whether the other has lawful authority for being in that vicinity or not); and
(c) The risk is one against which, in all the circumstances of the case, he may reasonably
be expected to offer the other some protection

S1(4)Where, by virtue of this section, an occupier of premises owes a duty to another in

respect of such a risk, the duty is to take such care as is reasonable in all circumstances of
the case to see that he does not suffer injury on the premises by reason of the danger
concerned.

S1(5)Any duty owed by virtue of this section in respect of a risk may, in an appropriate case,
be discharged by taking such steps as are reasonable in all the circumstances of the case to
give warnings of the danger concerned or to discourage persons from incurring the risk

S1(6) No duty is owed by virtue of this section to any person in respect of risks willingly
accepted as his by that person (The question whether a risk was so accepted to be decided
on the same principles as in other cases in which one person owes a duty of care to another)

(4) Legal Issues

Based on the relevant law, there are a few legal issues for the judge to decide
(1) Were either CS or BBB or both were “Occupiers” for the purposes of s1
(2) Does BBB and HJS owe Jason a duty of care under the Occupiers’ Liability Act 1984?
(3) did the occupier take reasonable steps to warn the trespasser off or keep him out?
Hence to discharge him from duty of care?
(4) Did Jason, while trespassing, willingly accepted the risk.
 RE JASON CONNELL

________________
OPINION
________________

1. I am asked to advise Mr Gordon Connell, who is acting on behalf of his son, Jason
who was aged 13 when he was injured on a building site near the family’s home. I
am mainly asked to advise him in relation to the liability and quantum of the injury.

SUMMARY OF FACTS
2. Barrow Brothers Builders (“BBB”) is a construction company that was working on a
luxury project in Darlow. The site known as Darlow Ridge (“the Premises”) adjoins
Paradise Park. The construction site was fenced off from the park by means of 3
metres high steel fencing. There were concrete blocks at 5 metre intervals and each
piece of fencing was therefore 5 metres long.

3. At 5pm on the 4th July of 2019, Jason Connell entered the construction site from
Paradise Park to retrieve a football which his brother Kevin, then aged 15, had kicked
over the fence.

4. According to them, there was a clear gap between the panels of steel fencing and it
looked as though someone had deliberately prised them apart.

5. However, it is alleged by the owners of the site, BBB, that 40 x 50cm which reads
“DANGER KEEP OUT!” was attached to the fence. Regardless, Jason and Kevin have
no recollection of seeing any such signs. While Jason was inside the fence, he was
attacked by an Alsatian dog which was neither tethered nor under the control of a
dog handler.

6. Jason says he held out a stick to fend off the dog, intending to throw it for the dog to
chase so that he could get away. BBB says Jason was taunting the dog with the stick.
Either way, the dog attacked Jason leaving him with a permanent injury to his right
(Dominant) hand.

SUMMARY OF ADVICE
7. In my opinion, Jason will have a strong case against the defendant under the
Occupiers Liability Act (“OLA 1984”) but this all depends on whether the dog was
tethered. If the dog was tethered, Jason will not have a strong case. However, if the
dog was not tethered, Jason had a case with good prospects of success under the
Occupiers’ Liability Act 1984 against Hemming and Jones rather than BBB. There will
also be a contributory negligence finding but it all depends on the whether if Jason
was taunting the dog or merely trying to fend It off.

LIABILITY UNDER THE OCCUPIERS’ LIABILITY ACT 1984

8. Occupiers’ Liability Act 1984 adopts the term “occupiers” from Occupiers Liability Act
1954. The status of an occupier is based on some degree of physical control over the
 premises (Wheat v Lacon Co Ltd). BBB has both ownership and possession of the
premises. They appear to have a sufficient degree of physical control over the
Premises and is highly likely that they are the occupiers of the Premises. On the
other hand, Hemmings and Jones Security(“HJS”) has two dogs and three handlers
on the Premises. It is unlikely they are the occupiers of the property since they do
not appear to have a degree of physical control over the Premises.

9. Jason entered the site through a gap between some fence panels. Whether the gap
was there already or not, he plainly entered through an unauthorised route and was
therefore a trespasser.

10. Regardless, BBB and HJS both owed Jason a duty to take such care as was reasonable
in all the circumstances of the case to see that he did not suffer a personal injury
while on the building site by reason of danger known to them (Occupiers Liability Act
1984, s1(3),(4)). The duty arises when the 3 requirements are met in s1(3). These are
first, that the occupier knows of, or has reasonable grounds to believe, the existence
of danger on his land. Second, that he knows or has reasonable grounds to believe,
that the trespasser is in the vicinity of the danger, or is likely to come into it. Third,
the risk is one against which, in all the circumstances of the case, he may reasonably
be expected to offer some protection.

The 3 requirements under s1(4) OLA 1984

11. First, there must be danger. The defendant must be aware of the danger or have
reasonable grounds to believe that it exists. If there was danger in this case, it was
the presence of an untethered dog. Therefore whether the dog is tethered or not
will be the most important issue. This is because if it is found that the dog was
tethered the claim will almost certainly fail at this first stage because a danger would
not have been present.

12. Mr Gordon Connell says the dog was untethered, no doubt basing his account on
what he was told by Jason and possibly also Kevin. Jason says that the dog chased
him when it saw him. Both Jason and Kevin will need to detail in their witness
statement exactly what happened, which include where Jason was first when he first
became aware of the dog and where exactly the dog was. Disclosure of CCTV might
be useful in ascertaining what was the surrounding like including the details of the
case and how Jason found the stick and what he did with the stick.

13. Next, the second requirement, there need to be a reasonable grounds to believe,
that the trespasser is in the vicinity of the danger, or is likely to come into it….
According to the letter from Penny Aitken, BBB was aware that the two dogs on the
site were ‘normally tethered’ to a steel post. This may indicate that BBB was are that
sometimes the dog was not tethered.

14. However, on the present evidence, there is nothing to suggest that BBB had any
knowledge or reason to think that guard dogs on the site were left untethered. HJS
on the other hand would be likely to have knowledge of it or reason to suspect it. If
 J’s account is correct, it is the dog handler either left the dog to roam free or
tethered it so badly, and it would be reasonable if the dog is left untethered by any
chance, there will be danger.

15. It will also be necessary to prove that the defendant knew or had reasonable
grounds to believe that Jason was is in the vicinity of the danger. HJS had a 24-hour
occupation of the site for security purposes with CCTV monitoring, so probably did
have knowledge of people coming into the vicinity of the danger through the hole in
the fence.

16. Finally, it is also required to prove that the risk is one against which, in all the
circumstances, he may reasonably be expected to offer some protection. Given there
is the dangers from the guard dogs, this is easily satisfied.

Breach and causation under the OLA 1984

Tethering of the dog

17. This is important because if the dog was tethered, the duty would be discharged.
This is because if Jason approached a tethered dog, there would be no danger from
which to build a claim and they would have taken such care as was reasonable to
protect Jason from injury while he was trespassing.

Warning notice
18. These are highly relevant because if present in sufficient number and clarity, these
will be the means by which the duty may have been discharged. However, in this
case, it is most likely insufficient. This is because according to Guard Dogs Act 1975,
s1(3), the modern position is that there will be criminal liability if a guard dog is left
loose, and also if there is no notice clearly exhibited at each entrance to the
premises that a guard dog is present. The Guard Dogs Act 1975 remains a useful
point. Thus, the notice is insufficient as they were displayed at the entrances as
claimed, the hole in the perimeter fence was not one of the entrances to the site
where the Act requires notice to be fixed. More importantly, “Danger keep out” is
not the same as the specific warning about the presence of guard dogs that the Act
requires. Such a general warning is not specific enough for this case. Thus, I would
expect the court to find that the warning notices were insufficient to bring the risk of
danger to the attention of Jason.

Use of the stick

19. There is a debate around whether Jason taunted the dog with a stick. This can only
be resolved by seeing the CCTV. If the CCTV does not assist, a judge will consider the
plausibility of the allegation. If the dog was loose, only a very brave and/or foolish
13-year-old would taunt a guard dog, even with a very strong stick.

20. If the god was securely tethered, a daring 13-year-old might well be tempted, but
this seems equally unlikely because Jason’s older brother was waiting for him to
return with the football.
Contributory Negligence

21. If Jason were to win on primary liability there will almost certainly be some finding of
contributory negligence against him. He is a 13 years old, in which he must have
realised he was trespassing by entering thorough the gap in the fence. In
apportioning the liability, the court will take into account how far into the site he
ventured, how long he stayed, whether he carelessly missed a chance to escape
before being caught by the dog, and so on.

Losses
22. Jason’s lost clothing is valued at £130. Under s1(8) OLA 1984, this limit his
recoverable damages to those for personal injuries and cannot extend to any
property such as clothing. However, this loss would be recoverable under the animal
Acts 1971 in which the only restrictions in s2(2)(a) is to damage of the kind the
animal was likely to cause.

Pain, Suffering and Loss of Amenity

23. According to the medical report from Mr McDonald, Jason went underwent surgery
to his right (Dominant) hand requiring repairs to his muscles and tendons. He had six
outpatient attendances for re-dressing his wounds. He had physiotherapy and most
of the pain was subtle after 6 months. He will suffer a permanent deformity leaving
his fifth finger bent towards his other fingers. This has caused him to suffer a
reduction in grip, and an effect on his use of keyboards and instruments.

24. He will be most likely come in the “moderate” category I(h) of the Judicial College
Guidelines in which it applies to crush injuries, penetrating wounds, soft tissue type
and deep lacerations.

CONCLUSION
25. The claims against HJS has a high chance of being successful but depending on the
findings of the contributory negligence by Jason.

26. At the moment, only the CCTV recording will clarify the version of events and I am
most happy to view the CCTV myself and to advise again when the recording has
been received.

CITY CHAMBERS A. BARRISTER

LONDON

17 NOV 2022