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March 2, 2001

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Guard dogs: the legal minefield

Notwithstanding the existence of the Guard Dogs Act 1975, there is no single comprehensive statute in place governing the use of guard dogs. When analysing the law relating to guard dog use, you are forced to consider several – often inconsistent – statutes, together with the common law as it develops on a case-by-case basis.
The end result is not only a very uncertain situation,but also potential civil and criminal liability for those who use guard dogs in blissful ignorance.
Aside from the Guard Dogs Act, other relevant legislation includes the Animals Act 1971 and the Dangerous Dogs Act 1991. To a lesser extent, there’s also the Occupiers’ Liability Act and the Health and Safety Act 1974.

The Animals Act 1971
This is perhaps the most applicable statute to the use of guard dogs.
Section 2(1) of the Animals Act provides for strict liability for any and all damage caused by an animal of a "dangerous species". By no stretch of the imagination could a guard dog be said to be a member of a dangerous species. However, Section 2(2) extends such strict liability to animals which are not members of a dangerous species in those circumstances in which the ensuing damage was likely to have been caused by such an animal (unless it was restrained), and was also likely to be severe.
Furthermore, such damage (and the severity of the same) must be due to the characteristics of the animal which are not normally found in animals of the species, and which are known to the keeper.
If Section 2(2) liability is established, then both the owner and the keeper will be strictly liable for any damage caused by the dog(s).
There are exceptions to such liability, provided for by Section 5 of the Act, which includes exceptions from liability if the damage caused is wholly due to the actions of the persons suffering the damage.
For instance, a trespasser ignoring a highly visible ‘Beware of Guard Dogs’ sign and trespassing onto property would be deemed to have voluntarily accepted the risk of damage, and the owner and/or keeper of any guard dog property may then avoid any liability.

The Guard Dogs Act 1975
Despite its good intentions, many of the provisions of the Guard Dogs Act 1975 – including Sections 2, 3, 4 and 6 relating to the licensing of kennels – are not yet in force.
Section 1 of the Act prohibits the use of a guard dog unless a handler capable of controlling the dog is present on the premises at all times, and the dog is under the strict control of the handler unless secured (and is not at liberty to ‘run free’). The use of any such guard dog is prohibited unless a notice warning that a guard dog is present is clearly exhibited at each entrance to the premises. Under Section 5 of the Act, a breach of Section 1 will result in criminal liability and a fine of up to GB pound 5,000.
From a legal point of view, the requirement to have a notice at each entrance point warning that guard dogs are present is an interesting one, particularly in those circumstances in which the word ‘entrance’ has not been defined or limited. Would a hole in the perimeter fencing constitute an entrance point? From a legal point of view, it’s likely that it would.

The Dangerous Dogs Act 1991
In essence, the Dangerous Dogs Act 1991 primarily prohibits the possession and/or custody of dogs bred for fighting, and is presently limited in its application to the Pit Bull Terrier and the Japanese Tosa – unlikely guard dogs by any stretch of the imagination! That said, Section 3 of the Act provides that if a dog is dangerously out of control in a public place (a shopping centre, for example), the owner and/or person in charge (potentially the security officer) is guilty of an offence and/or an aggravated offence if the dog injures someone as a result of such loss of control.
Any breach of the Act results in criminal liability, six months in prison and a fine of GB pound 5,000. If the dog’s loss of control results in an injury to a third party, then the sentence is extended to two years’ imprisonment.

Guard dog use and the common law
The common law of tort applies to the ownership of all animals, and not just dogs. Any owner of domestic and harmless animals may be liable on the grounds of negligence for damage caused to third parties by the animals.
At its most basic level, civil liability of the owner will depend on whether or not the owner owed a duty of care to the relevant third party, and whether or not it was directly foreseeable that the animal would cause the injury suffered by the third party.
It’s very easy to foresee a situation in which a child climbs through a hole in a site’s perimeter fencing, enters a premises patrolled by guard dogs (albeit that they are used in compliance with the Guard Dogs Act) and is then badly mauled by a guard dog secured on a chain.
The owner and keeper of the guard dog would probably be strictly liable for the damage caused under the terms of the Animals Act 1971, and would (possibly) be criminally liable for the aggravated offence under the Guard Dogs Act 1975.
Independently, they would also probably be liable for a huge damages claim under the common law of tort in circumstances in which it could be argued that such damage was foreseeable, and that the security operator had not checked the integrity of the perimeter fencing before deploying guard dogs.
Before any security operator considers using guard dogs, it’s vital that proper insurance cover is obtained, and that the operator consults with either The Security Watchdog or directly with the National Association of Security Dog Users (NASDU).
Both organisations are in a position to offer invaluable guidance on the safe and effective use of what can, after all, be a valuable asset.

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