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Mary Lennon Vs. Percy Fisher - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Suit No. 365 of 1921
Reported inAIR1924Bom207; (1923)25BOMLR873; 87Ind.Cas.75
AppellantMary Lennon
RespondentPercy Fisher
.....animal-plaintiff going to defendant's house on lawful business-dog chained to the dining room door-attack by the dog-injury to plaintiff-damages.; the plaintiff, who went to the defendant's house on a lawful business, crossed the verandah and made for the door of the dining room with the object of entering it, when a dog, which was chained inside the door, attacked and bit her. the dog when chained and on guard was ferocious ; and this was known to the defendant. the plaintiff went to kasauli for treatment. she having sued to recover her expenses for the treatment and other damages:;that the defendant was guilty of negligence in keeping the dog chained in the way he did; that the plaintiff had not exceeded the limits of the defendant's invitation to her as an 'invitee'; and..........window where she did go. then going a step further, was she justified in going towards the dining room door with the intention of entering it and there waiting until the defendant came here again two views are possible, but i think that the circumstances are such that the plaintiff might reasonably consider herself entitled to go and wait in the dining room. no chairs, so far as the evidence shows, were provided in the verandah; she might have had to wait for a very considerable time so far as she knew, and there was no other room available for her to wait in. it was at an hour when the dining room would not be wanted for meals or for other purposes, so that her presence might be regarded as an undesirable intrusion. the plaintiff is a lady of a similar social standing, so far as i am.....

Fawcett, J.

1. His Lordship first discussed and set out the facts as summarised above, and then proceeded to discuss the law applicable to the case : Now coming to the main question of negligence. First of all, I may refer to the general statement of the law by Tindal C.J. in Sarch v. Blackburn (1830) 4 C.& P. 297 300:

If a man puts a dog in a garden, walled all around, and a wrong-doer goes into that garden, and is bitten, he cannot complain in a Court of Justice of that which was brought upon him by his own act .Undoubtedly, a man has a right to keep a fierce dog or the protection of his property, but he has no right to put the dog in such a situation, in the way of access to his house, that a person innocently coming for a lawful purpose may be injured by it.

2. And the law is similarly stated in Halsbury's Laws of England, Vol. I, Article 818, p. 375. The case just cited also deals with the point of a notice being put up where a dog was kept, and it was held that it was not enough since the person bitten might not be able to read. That of course is not in point here, except that the same thing applies in regard to the defendant's shouting. The mere fact of his shouting would not be enough, if it was not actually heard by the person to whom the shout was addressed. The plaintiff undoubtedly was going to the defendant's on a lawful business and at a reasonable hour, and there is clear authority for saying that she was in the position of an 'invitee' as the law phrases it. On this point it is enough to refer to Halsbury's Laws of England, Vol. XXI, Article 655, at p. 388, and to the case of Pritchard v. Peto [1917] 2 K.B. 173. That was the case of a person going to collect a debt at another's house, and it was there held that he was an invitee. Coming to the law applicable in a case like the present, it seems to me that there is no better statement of the principles applicable than the law laid down in the leading case of Indermaur v. Barnes (1866) L.R. 1 C.P. 274. That no doubt primarily deals with what are called 'trap oases', but a case like this is really on all fours. Putting a dangerous dog behind the door in a room is just as much a trap to an innocent passer-by as it there were a hole or man trap which might cause him injury. This particular passage in Mr. Justice Willes' judgment is referred to by Lord Atkinson in Fairman v. Perpetual Investment Building Society (1922) 39 T.L.R. 54, as one which has for the last fifty-six years been accepted as a full and accurate statement of the law. It runs as follows:

The class to which the customer belongs includes persona who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, upon his invitation, express or implied. And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall upon his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know, and that where there is evidence of neglect the question whether such reasonable cure has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer must be determined by a Jury as matter of. fact.

3. Accepting that as the law applicable, really there are three subsidiary questions. First, did the plaintiff herself use reasonable care, or, in other words, was she in any way guilty of contributory negligence Secondly, did the defendant use care against the unusual danger which he knew or ought to hare known of That involves the third question, whether he knew of the danger, a point which I have already found in the affirmative. So really the main question boils down to this, whether the limits of the invitation to the plaintiff to come to the defendant's premises were exceeded or not. Thus, as stated in Halsbury's Laws of England, Vol. XXI, Article 657, page 390:

The liability of the occupier is only commensurate with the extent of the invitation. Where, therefore, the occupier of premises has placed a notice warning persons of the existence of danger, and a person disregards the notice, or the circumstances show that the limits of the invitation have been otherwise exceeded, the liability is limited in a corresponding degree, and if the invitee wanders about in such a way as to be unable to see if there is danger or not, or if he knows of the danger and undertakes the rink, the occupier of the premises is not liable.

4. Now, in the present case I have held that the plaintiff did not actually go into the dining room, but, on the other hand, according to the plaintiff's own case in the plaint and on the facts as I hold them, she did turn and move from this door window towards the dining room with the object of entering that room, and therefore to that extent the question does arise, whether the circumstances are such that the limits of the defendants invitation were exceeded. I think that is the clearest way to put the point of law that arises. Now, I am far from saying that different views might not be taken of that point. But the consideration that I have given to the subject has clearly Jed me to the view that it cannot be said chat those limits were exceeded. Mr. Binning for the defendant contended that the plaintiff had no business to go anywhere beyond the part of the verandah opposite the steps and the centre door of the defendant's sitting room. That, I think, is a position which is not justified by the circumstances in this particular case. Admittedly there was no servant on duty to whom the plaintiff could apply in order to obtain an interview with the defendant. The defendant's own evidence is that all the servants were given leave to go away temporarily from about six in the evening, and it is also admitted that when Mm Fisher called for a servant after she had taken the plaintiff into her bed room, there was some delay in the servant arriving. Then again, as Mr. Campbell pointed out, there was no bell or knocker provided, by which a visitor could obtain attention without moving from a position opposite the steps. It is the case of both sides that there was a screen in front of this general sitting room, which was used as a sort of club by people coming there to play cards and billiards, and it is certainly reasonable that the plaintiff should hesitate to go into that particular room ; nor do either the defendant or his wife say that she should have done so. What Mrs. Fisher Bays is that the plaintiff should have called out or knocked at the door, or otherwise done something to get a servant or draw attention to her having come. But she did what I think was quite natural; she went to one of the side door windows and looked in, and even according to the defendant's case, she managed by that means to attract attention. The verandah was not screened off in any way, it was quite open ; so that it is not a case where it could be said that there was a clear indication to a visitor that he or she should not go behind the screen put there. And it seems to me that the invitation given to the plaintiff as an invitee would certainly extend to her going to the door window where she did go. Then going a step further, was she justified in going towards the dining room door with the intention of entering it and there waiting until the defendant came Here again two views are possible, but I think that the circumstances are such that the plaintiff might reasonably consider herself entitled to go and wait in the dining room. No chairs, so far as the evidence shows, were provided in the verandah; she might have had to wait for a very considerable time so far as she knew, and there was no other room available for her to wait in. It was at an hour when the dining room would not be wanted for meals or for other purposes, so that her presence might be regarded as an undesirable intrusion. The plaintiff is a lady of a similar social standing, so far as I am aware, to that of the defendant and had herself been previously taken into this room; having regard to the ordinary social amenities which govern Europeans of the class to which the parties belong there was good reason for her thinking that the defendant would have no objection to her waiting there. But for the fact of this dog being there, I have not the slightest doubt that the defendant really would have had no objection whatever to her going into the room. There is no suggestion that she went there with any dishonest or malicious purpose, and as a lady who had come there on lawful business, I am prepared to hold that she was justified in desiring to go into that room and wait. But as a matter of fact in this particular case she did not actually enter the room, so that her position is stronger that the relied upon by the defendant. Other reported cases necessarily have different facts from those of the present case, but I think there are clear authorities in support of the view I take. It will suffice to refer to two cases. In Butts v. Goddard (1887) 4 T.L.R. 193 the plaintiff, a needle-woman on lawful business, entered certain premises otherwise than by the usual entrance. When she got through the outer door she came to a landing having offices on both sides. Crossing the hall she reached the folding door with fluted glass on the top so that she could not see through. She pushed this open and immediately came upon a flight of steps leading down to a cellar. She fell and had injuries. She brought an action to recover damages, and Manisty J. in summing up (according to the report in this case) says :

The jury would have to deal with the fact whether she was reasonably right in that impression [that she was entering in at the proper door]. If they thought that the defendant had these premises, and had them so that a person might reasonably suppose he should go in there, then an invitation was held out to go there, and the defendants were bound to have that access reasonably safe.

5. The jury found for the plaintiff. That is a case where it certainly might have been contended that the plaintiff had no business in entering by the door she did. I think also that the case of Stiles v. The Cardiff Steam Navigation Company (1864) 33 L.J.Q.B. 310, although it is not quite on all fours with the present case, is one that supports the view that the mere fact of the plaintiff going beyond the actual entrance to the defendant's house is not enough to bar her claim.

6. Again, take a casa like that of Walker v. The Midland Railway Company (1885) 2 T.L.R. 450 where an inn-keeper was held not to be under a duty to his guests to keep those places safe where visitors are not entitled to go, and where they cannot be reasonably expected to go by mistake : thus where there was a well-lighted and properly indicated lavatory accommodation it was held that a guest, who went about looking for the lavatory in the dark through a service-room, and was injured, could not recover damage. That case is of course a very different one to this, but it may be noted that the view that the plaintiff could not recover in that case was dissented from by two of the Law Lords as against the majority of three. The Earl of Selborne in his judgment held that the general duty of an innkeeper must be limited to those places into which guests may reasonably be supposed to be likely to go in the belief, reasonably entertained, that they are entitled or invited to do so; and I mainly refer to that case because it shows that this question of reasonable belief can legitimately be taken into consideration in a case of this kind. I hold that, apart from any express invitation, there was in the circumstances of this case an implied invitation or permission by the defendant to the plaintiff to enter this particular dining room, That being so, there can, I think, be no doubt that he did not exercise reasonable care to prevent damage from the unusual danger afforded by the presence of the dog. There was no guarding of the room by a servant, no notice about the dog being there, and bad lighting. I think the dog, to use the words of the defendant in one of his letters, 'pounched upon' her, without her being able to see it before it actually attacked her. It is true that the defendant shouted out, but that shout was not heard by the plaintiff and in any case was too late.

7. Then as regards the question whether there was contributory negligence by the plaintiff, that has in fact not been urged by defendant's counsel and there is no evidence to show she did not exercise reasonable care in proceeding along the verandah. No doubt, it was not fully lit, but (so far as the evidence goes) there was sufficient light for the plaintiff to be justified in walking towards the dining room as she did, being unaware that this dog was there on guard. The defendant was no doubt entitled to keep his dog there on guard to protect his property, as he says he did, but he was certainly negligent in allowing this to be done at a time when it was quite within ordinary possibilities that a visitor like the plaintiff coming to him on business might go to that room. He could not reasonably assume that the only persons who would go there would be thieves, or servants or others whom the dog knew and would not attack.

8. On the issues raised I answer as follows:- (1) whether the plaintiff was bitten in defendant's verandah or in his dining room? Answer, in the verandah, but near the dining room door. (2) Whether the plaintiff had been authorised by the defendant to enter the dining room on this occasion? Answer. There was no express authorisation, but the circumstances were such as to give an implied invitation to the plaintiff to enter. (3) Whether the dog was ferocious? Answer. The dog was ferocious to this extent that it was apt to bite human beings when chained and on guard as he did in this case, and the defendant was aware of the danger arising therefrom. (4) Whether there was any negligence on the part of the defendant? Answer, Yes.

9. The only remaining issue is the fifth, whether the plaintiff is entitled to any and if so what damages? On this point Mr. Binning for the defendant did not contest the plaintiff's claim in regard to charges for her going to Kasauli for anti-rabies treatment and for the Ayah that she engaged to attend to her at about that time. There is also the authority of the case of Prakash Kumar Mukerji v. Harvey I.L.R. (1909) Cal. 1021, for holding such charges in a case like the present to be reasonable. The expenses in question are sufficiently proved to amount to Rs. 538-14-0 as stated in Exh. C to the plaint. To this should be added the expenses incurred in connection with the Ayah, whom plaintiff' says she engaged for six or seven days and to whom she paid Rs. 2 per day. Then also, I think, may be added minor expenses not specifically mentioned, so that the total may be taken to be Rs. 600. The plaintiff says that she had to incur medical expenses afterwards in consulting no less than six doctors, whose charges amount to Rs. 370. But I am not satisfied that those charges can be properly allowed as damages naturally arising from dog bite, for there is no evidence given by any of the doctors in question to justify the Court in holding that proved. The only thing that does help the plaintiff on this point is the certificate of Dr. Nunan given on February 8, 1923, Ex. I, and his testimony that the present condition of her left thigh is due to the dog bite. But, on the other hand, the plaintiff is able to go about her ordinary badness and has in fact got a Government appointment, and I cannot say that there Is sufficient evidence to show that these expenses were due mainly to the dog bite. I think any such compensation would more properly come under the general discretion which the Court has to award the plaintiff damages, under the general head of pain and suffering. In such a case it is obviously impossible to assess the plaintiff's loss at a precise money value, and the only limit which is imposed is that the amount shall not be unreasonable. There is no doubt that the plaintiff has suffered considerably, but on the other hand the Court must be careful not to award an excessive amount, having regard to the defendant's means. I allow another Rs. 600 under this head which I think will suffice to compensate the plaintiff. The result is, I pass a decree in plaintiff's favour to recover Rs. 1200 as damages from the defendant with costs of the suit and interest on judgment at six per cent.

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