Clarence, who keeps Dash, an Alsatian dog, as a pet, has frequently been irritated by the rude behaviour of Ellen, the six-year old daughter of his neighbours, who make little attempt to control her. One morning he sees her teasing Dash, but does nothing. After some while he sees Dash turn on Ellen and attack her, but he still does nothing, because he thinks the child must be taught a lesson. Dash seriously injures Ellen before Frank, her father, is able to rescue her. Consider what offences, if any, have been committed.
This is a case of omissions liability, and omissions do not generally attract liability, unless there is some duty between the defendant and victim, which can arise, through statutory, contractual, or voluntary obligations. Whilst none of these apply here, another category of duty can arise through the victim's creation of a dangerous situation (Miller). Clearly this is satisfied here as seeing as Dash is his dog, it can be argued that he is responsible for it, and as he sees the event taking place, but leaves it to Frank to rescue Ellen, has not taken any steps to correct this mistake and thus his omission can constitute an act.
Frank could be charged with causing grievous bodily harm with intent contrary to s. 18 of the Offences Against the Person Act 1861. The actus reus is that the defendant caused the grievous bodily harm, and as following Janjua;Choudhury, this was held to mean 'serious' bodily harm , Ellen's 'serious injury' will suffice and following C vs Eisenhower, if the epidermis of the skin is broken(likely if bitten by a dog), it would also qualify under the wounding section.
Factual causation can be established as 'but for' him failing to control his dog/help Ellen, no harm would have been caused. Whilst the harm was actually caused by Dash, as has been established, Clarence is responsible for him, and can be held liable. The mens rea required for this offence is intention, and Clarence was obviously aware that the event was going on as he viewed it. Whilst he could perhaps successfully argue that as Ellen usually teases the dog and no harm is caused, it was not 'virtually certain' (Woollin) that harm would occur, and thus it may only be reckless.
However as soon as he saw Dash, attacking Ellen, seeing as Dash is a powerful Dog, an Alsatian, and Ellen is only six, his failure to restrain Dash from attacking, meant that serious harm was virtually certain. If a jury didn't consider it virtually certain, then it was most definitely probable, and as Clarence foresaw harm, this would find him guilty of the necessary Cunningham recklessness.
His defence may be that he was not responsible for the dog, or that Ellen teased him, however as an adult able to go and prevent the harm, his omission to directly inflict the harm does not matter. Even if it were an adult teasing Dash, Clarence's knowledge and failure to act is what is relevant. However in sentencing this may be taken into account when assessing the extent of the injury. Neglect Frank may be charged with the wilful neglect of Ellen contrary to s. 1 of the Children and Young person's Act 1933.
Clarence observes that little attempt is done to control Ellen, and as she has been left in a situation where she has either gone next door to antagonise Dash, or Dash has gone onto her property, as Frank is responsible for her but unaware of Ellen teasing Dash for 'some while' this could constitute wilful neglect. Dangerous Dogs Act Clarence could be charged with the aggravated offence of injury to another person, by failing to keep his dog under proper control contrary to s. 3 (1)(b) of the Dangerous Dogs Act 1991.
The actus reus of this offence requires that the dog must be dangerously out of control, which has been established as it attacked Ellen, satisfying the definition under s. 10(3). It must also be in a public place, and whilst there is no reference as to whether Clarence viewed the events taking place on his land or his neighbours land this does not matter, as if they took place on his land as public place includes 'any place which the public have access to,' 3(10) 2 which can include a garden this is satisfied.
As this is a strict liability offence, all that is required is that the defendant took necessary precautions, and thus even if the dog had crossed onto Frank's property, this would demonstrate that inadequate measures to restrain it had been taken, and as the term 'allows' in the act can include omission to take adequate precautions (DPP v Greener), Clarence is clearly responsible. It qualifies for the aggravated section of 1(b) as injury is caused as a result.
It is no defence that the dog is being teased by Ellen, as he could not argue that she was in control of the dog under s. 3(2) as she is under sixteen, and also, as he knows she taunts the dog, she would not satisfy the requirement of being a strict and proper person to be in charge. Critique-discuss omissions liability, procedures in France, and Law Commission's suggestions for having separate bad Samaritan laws.