Indian Kanoon - Search engine for Indian Law

17th January 1917.

Dear Mr. Paull, After further consideration I want, in the most friendly yet firm way, to put in writing just what I feel concerning what happened yesterday. The dog has now attacked the child on three different occasions. The first time it drew blood; on the second occasion I was present and my wife and I were able to prevent any bodily harm being done; yesterday the dog bit the child on the foot, and it would certainly have drawn blood but for the fortunate fact that its teeth fastened on the child's shoe. On no occasion has the child given the dog any provocation. The above proves that so far as my child is concerned, the dog is dangerous.

65. The statement in Mr. Hull's letter about the dog being sent to Darjeeling is not here challenged, though the defendant in his evidence says that he is not sure whether he told Mr. Hull that he would send the Jog away to Darjeeling or not. The defendant then says that it is quite likely that Mr. Hull invented that statement. In my opinion Mr. Hull is stating the truth in this matter. In his evidence the defendant says he pooh poohed" the whole thing absolutely, that Mr. and Mrs. Hull were making a mountain out of a mole hill," that they exaggerated" and that it was "a paltry thing," and that they were "making a great fuss and that even the last occasion when the dog made a wound on the Childs, face, which was 1 inches long and a 1/4th to 1/8th of an inch deep and which had to be sewn up, leaving what the doctor said was likely to be a permanent scar, it was " a very doubtful thing," Seeing these constant attacks by the dog on this child which was only 1/4 years old, I think that his parents were very naturally apprehensive and that it was not a matter to be "pooh poohed" at all. If greater injury was not caused, it was, I think, due to the fortunate circumstance that on each occasion some one was present to help the child and to take off the dog. I do not accept the defendant's statement that Mr. and Mrs. Hall were exaggerating. If they were, why did not the defendant deny the statements in Mr. Hull's letter of the 17th January? The attitude taken by the defendant in his evidence has also a bearing on the argument that the defendant before suit was so entirely reasonable and willing to make such compensation as was proper that the suit was unnecessary, a matter with which I deal later.

66. The fourth attack by the plaintiff's dog on the 22nd June 1917 is the subject-matter of this suit.

67. The defendant had promised that the dog should be sent away after the dog-show which took place at the end of January. The reasons why he did not do so are immaterial. It may not have suited the defendant, but a promise made was a promise to be kept. It has been suggested that it was a good thing that the dog was not sent to Darjeeling, as it might have attacked the child when the latter was also there. The defendant does not himself say that the dog was not sent to Darjeeling on account of any such fears. Moreover the gist of the matter was not that the dog should be sent to Darjeeling in particular, but that it. should be sent away. On the contrary the dog was kept in the hotel and afterwards made over to a Mr. Latouche. Meanwhile the defendant went himself to Darjeeling and retained about the middle of June. At that time the Hull family had returned. Then the defendant returns and knowing that the Hall family were in the hotel, he brought the dog again into the hotel. For sometime the dog was in his control and was then left, on his going to the Sand heads, in the hotel in charge of his friend Mr. Bryant, who lived on the same landing and used the same lift as the Hull family. And this was done though in the defendant's letter of the 17th January previous, the defendant has suggested that the child should use one of the other staircases until he had moved to rooms on another floor. The result then was that the dog was not sent away but kept in the hotel under circumstances similar to those under which the first three attacks had occurred. The defendant, however, had told Mr. Bryant to be careful with the dog. The dog WAS loose in his room and when his brother Mr. W. Bryant opened the door, the dog rushed out, attacked the child who was almost at once picked up by Mr. W. Bryant and saved from further injury than that which it has suffered. As to this we have Dr. Cameron's evidence. The left cheek was out and there were two small wounds on the hand. The first wound was he says fairly serious, being 1 inches long and the depth varied from .1/4th of an inch to 1/8 h or 1/2 to 1/8th. . It required stitching, which was done after the child was given chloroform. He says that he certainly thinks there will be a permanent scar. He described it as prominent. The learned Judge in his judgment, dated the 5th July of last year', that is more than a year after the event, states that the scar was still visible from where he was sitting at a distance of 5 or 6 yards. The Doctor was twice questioned as to his statement that the scar would he permanent ani said that he did, not think it would disappear. On the right hand, the skin was just broken and showed tooth marks. Being cross-examined whether he anticipated any further permanent result?, Doctor Cameron said that the question was a difficult one, but that the child would be nervous of dogs. And the evidence shows that the child was, as one might expect it to be, after four attacks from this dog, nervous.

68. As regards this medical evidence it is uncontradicted.

69. The question then is, what damages the defendant should pay for these injuries. In the defendant's view the matter was a very small one and that if there was anything due a very little sum was payable. The defendant stated that if any little sum was due there was contributory negligence on the part of this child of 4 years, and if one were set against the other nothing was due. The supposed contributory negligence is that the child was on the corridor near the room of Mr. Bryant and at a distance of some 200 panes from its own. Whether this would have made any difference in the result is doubtful There might have been perhaps more serious injury if the dog had attacked the child at a distance from Mr. Bryan's room, when it would have taken longer for him to come up and help is However this may be, the child was entitled to use the corridor as much as any one else. Doubtless it was an accident that the dog attacked the child owing to the opening of Mr. Bryan's door, but as the learned Judge has held having regard to what happened before, the defendant must be held responsible. I may here point out that the statement above mentioned and other facts make it abundantly clear that the defendant never offered to pay anything on account of injury and suffering and limited his offer to out of pocket expenses only. I refer to this again on the question of costs.