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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 45
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OPINION OF LORD MALCOLM
in the cause
PATRICIA WELSH
Pursuer;
against
NEIL BRADY
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
MacAulay, QC, Love; Digby Brown SSC
Defender: Di Rollo, QC, Waugh; Ledingham Chalmers
LLP
18 March 2008
[1] The
pursuer seeks damages for a severe injury to her right knee sustained as a
result of a collision with the defender's black labrador bitch, Ebony, in a field
near the village of Wellbank. At the time the pursuer was walking her
golden retriever, Cava. The injury has
had serious long term consequences for the pursuer and for her ability to earn
a living. Damages have been agreed at
ฃ160,000. I heard a proof which was
limited to the question of whether the defender is liable to pay those damages
to the pursuer. Evidence was led from
the pursuer; a
consultant orthopaedic surgeon; two
other local dog walkers; an expert in
dogs and dog handling issues; the
defender; and his wife. The pursuer and defender gave evidence as to
the circumstances of the accident. The
only other person present was the defender's then four year old daughter. There was a dispute as to whether there had
been a collision between the pursuer and Ebony, or whether the pursuer had simply
stumbled. However the defender's counsel
accepted that I should proceed on the basis of the pursuer's account, which was
supported by the evidence of the surgeon. (I would have done that in any event) There were also differences as to the nature
of the ground conditions at the time, and as to how often the parties had met
when walking their respective dogs before the accident. Any potential significance of the first
matter was superseded by the acceptance of the pursuer's account as to how the
accident happened, and little turns on the other issue. Both parties accepted that they had met
before the accident while walking their dogs, and that, on at least several occasions, their dogs had run together while off the lead. For the rest, the evidence was largely
non-controversial. The general picture
which emerged from it can be sketched as follows.
[2] Walking
dogs in the open fields around Wellbank, a village just north of Broughty
Ferry, is a popular activity. It allows
the human and canine population fresh air, exercise, and opportunities for
social interaction. Villagers meet, chat
and walk together for a while, as their dogs play and run around. It would appear that the general practice is
to keep dogs on their lead until the open and largely uncultivated fields are
reached, when they are allowed to run free. The pursuer regularly took her golden
retriever to the fields, where she would meet Ebony and other dogs. Ebony was purchased as a puppy in December
2002 as a family pet. By the time of the
accident she was a large, lively and boisterous animal. In common with others of her breed, she is
friendly towards people and other dogs. While
she has undergone some basic training from the defender and his wife, she does
not always respond to verbal commands to return to her owner. Labradors are
generally receptive to instruction - "biddable" to use the phrase of the said
expert, Mr O'Meara. They enjoy
completing tasks and following orders, hence their popularity for use as guide
and police dogs. Though excitable, Ebony
is neither aggressive nor vicious.
Before the accident she had given her owners no cause for concern over
her behaviour towards other people.
Mrs Gwen Fenton did speak to one pre-accident occasion when Ebony,
ignoring her master's call, and while wagging her tail, ran to her and jumped
up, placing her paws on Mrs Fenton's chest. She described Ebony as a "playful dog" who
would run around in the manner of hunting dogs.
Another local dog walker, Mr Peter Taylor, when asked how he would describe
Ebony, said that she is a nice, friendly dog who causes no problems. On one occasion she came over to him, but not
in an aggressive way. Her owner had to
whistle a couple of times before Ebony would return to him.
[3] Ebony
weighed about 25kgs at the time of the accident and was large enough to knock
people over. When training a dog of
whatever size or breed, Mr O'Meara considers it essential to instil
obedience to stop or return commands. He
said that a dog in a public place can be seen as a threat and can scare
people. It can run off and get into
danger. In Mr O'Meara's opinion, if
not "recall proof", a dog should be kept on the lead when in a public
place. If his dog was running towards
someone, he would command it to stop and return to him.
The accident
[4] In the late afternoon of 14 March 2005 both parties were
walking their dogs in the open fields to the south of the village. When they first saw each other they were some
distance apart. The dogs greeted each
other and ran around together. At one
point they came up to the defender while he was close to a gate, then they ran
slightly downhill towards the pursuer, who was walking away with her back to
them. Mrs Welsh was aware that the
dogs were playing together and had run to Mr Brady and his daughter. At one point she stopped and turned around
shouting "Cava come". She was aware of
the two dogs coming towards her, and "the next thing" she was on the
ground. While her shoulders had turned through
180 degrees, so that she was facing back towards the dogs, her feet were
side-on. She had a "split stance". The
impression I had from her evidence was that, unlike her shoulders, her feet had
turned only some 90 degrees to the left, with her right foot slightly ahead of
the left. Both her feet were splayed and
pointing at a right angle to the direction of the dogs' travel. She was knocked over by Ebony, who collided
with the inside of her right knee.
Mrs Welsh said that Ebony was running at speed with her head down,
and that it was her head which hit her knee.
It is plain from the severity of her injuries that Ebony must have
struck the pursuer with considerable force.
On seeing how badly injured she was, Mr Brady left Mrs Welsh
lying on the ground with the dogs and his daughter, while he left to summon
assistance. Thereafter two ambulances
arrived and Mrs Welsh was taken to hospital. According to her, after the accident, and while
she was on the ground, Ebony sat on her knee, but by then the damage had been
done.
[5] Before
the accident no-one had ever expressed concern to the defender about the
behaviour of Ebony, and he had no such anxieties. Ebony regularly ran with other dogs,
including the pursuer's golden retriever, in the presence of their owners. There had been no previous accidents and no
aggressive behaviour on Ebony's part.
The defender accepted that there is a risk of a collision if a labrador is running in a field in the presence of another
person, but he had no concerns on the occasion in question. In general terms he would usually carry out a
"risk assessment" of the overall situation.
However there was nothing unusual or out of the ordinary in Ebony and
Cava running about, including running towards the pursuer, and hence Mr Brady
did not consider it necessary to recall Ebony to him. It was clear to him that the pursuer was
content to be in the field while the dogs ran about together. It did not cross his mind that there might be
a collision. Ebony had run towards
people in that fashion before without incident.
According to the defender Ebony was not in the habit of jumping up at
people. The only evidence of Ebony
jumping up on other people was that of Mrs Fenton. I accept her evidence, but it related to one
occasion, and therefore does not contradict the defender's evidence denying any
habitual behaviour of this type on the part of Ebony.
Submissions for the pursuer
[6] Mr Colin MacAulay,
Q.C. submitted that liability was established under and in terms of the Animals
(Scotland) Act
1987 (the Act), which failing by way of common law negligence on the part of
the defender. Section 1 of the Act
provides, so far as relevant:
"1(1) ... a person shall be liable
for any injury or damage caused by an animal if -
(b) the
animal belongs to a species whose members generally are by virtue of their
physical attributes or habits likely (unless controlled or restrained) to
injure severely or kill persons or animals, or damage property to a material
extent; and
(c) the
injury or damage complained of is directly referable to such physical
attributes or habits.
(2) In this section 'species'
includes -
(a) a
form or variety of the species ...
(3) For the purposes of
sub-section (1)(b) above -
(a) dogs ... shall be deemed to
be likely (unless controlled or restrained) to injure severely or kill persons
or animals by biting or otherwise savaging, attacking or harrying ..."
[7] There
is no question but that the defender was Ebony's keeper at the material time,
thus, whatever the true position concerning ownership of Ebony, the above
provisions applied to him at the time of the accident. Mr MacAulay submitted that the key issue
is as set out in section 1(1)(b), namely whether labradors are, by virtue
of their physical attributes or habits, likely (unless controlled or
restrained) to injure severely or kill persons.
One should focus on the dangers posed by uncontrolled labradors. He relied on their tendency to playfulness; their confidence in
and around people; and their size and
energetic behaviour. These create a risk
of severe injury. If a labrador is running around and an accident occurs, then
strict liability under the Act is established.
There is a dearth of case law.
Reference was made to a decision of Sheriff Bell in Fairlie v Carruthers 1995 SLT (Sh. Ct.) 56. Mr MacAulay observed that, so far as
statutory liability is concerned, that case was argued solely under
section 1(3), presumably on the basis that Parliament intended that only
section 1(3) should apply to dogs.
However, according to Mr MacAulay that provision was without
prejudice to the broader terms of section 1(1)(b). I was referred to the Scottish Law
Commission's report on civil liability in relation to animals (report no. 97),
and in particular to paragraphs 3.15/16, 3.29/32 and 4.2/7.
[8] So
far as the evidence is concerned, Mr MacAulay submitted that it
demonstrated that labradors are biddable, people
confident, easy to train, exuberant and lively sporting dogs, who are full of
energy and capable of knocking people down.
If off the lead in a public place, they must be trained to respond
immediately to a recall command, otherwise they should be kept on the
lead. Ebony displayed all the usual
traits of her breed, and was not always obedient to command. In any event, the defender did not issue any
command. Mr MacAulay referred to
Mrs Fenton's evidence as to the occasion when Ebony jumped up at her. While a playful incident, it could have
caused injury. A playful dog can be just
as culpable as a vicious dog. In running
at a fast speed towards the pursuer, Ebony was behaving in a manner typical of labradors if neither controlled nor restrained. The injury suffered by the pursuer was
directly referable to that behaviour. In
all the circumstances, the defender is strictly liable for the injury to the
pursuer, and thus there is no need to prove negligence.
[9] Alternatively,
Mr MacAulay submitted that the evidence established that the defender had
failed to take reasonable care for the safety of Mrs Welsh. In this regard the key issue is that of
foreseeability. Mr MacAulay
referred me to Henderson
v John Stuart Farms Limited 1963
SC 245 and to Hill v Lovett 1992 SLT 994. It was foreseeable that injury could be
caused to the pursuer if Ebony ran around the field, so there was a duty of
care to prevent such behaviour by appropriate control or restraint of
Ebony. The risk was not a remote
risk. The existence of the duty was
buttressed by the incident involving Mrs Fenton. Mr MacAulay accepted that Ebony did not
attack Mrs Welsh. There was no
aggressive or vicious behaviour. What
happened was a pure accident, but it was a foreseeable accident. It was accepted that the circumstances in the
present case are similar to those in Sheriff Bell's case, where he refused
a remedy. Many of the factors relied on
in respect of the statutory case are also relevant to the common law
submission. Ebony was not fully under
the defender's control, and he knew that she did not always obey commands. The defender should have restrained Ebony by
lead or long line. In allowing her to
run freely around the field in the presence of the pursuer when she was not
trained to respond instantly to commands, he was in breach of a duty of care
towards the pursuer and, as a direct result, the pursuer sustained severe
injuries. Mr MacAulay invited me to
pronounce decree in terms of the Joint Minute, with interest at the judicial
rate from its date, namely 22 January
2008.
The defender's submissions
[10] For the defender
Mr Simon Di Rollo, Q.C. invited me to pronounce decree of absolvitor. He repeated an earlier objection as to the
evidence about the characteristics of labradors in
general, as opposed to those of Ebony in particular, and this on the ground of
no record. I repel that objection, in
that I consider that the pursuer's pleadings are sufficient to cover that
evidence. Mr Di Rollo also
maintained an objection to evidence regarding inadequate training of Ebony,
though he considered that the pursuer's case as presented did not turn on that
evidence. In essence, the pursuer's
common law case was that Ebony should have been kept on the lead. Again I repel that objection on the basis
that the evidence fell within the general parameters of the issues raised on record
in this chapter 43 action.
[11] Mr Di Rollo submitted the pursuer's pleadings to a
detailed analysis and drew attention to various matters which had not been
proven. However, I agree with
Mr MacAulay's response that, be all that as it may, I must determine the
case on the basis of what has been established in the evidence.
[12] So far as the statutory case is concerned, Mr Di Rollo said
that the only relevant authority is Fairlie. The pursuer cannot rely on section 1(3),
which is concerned with an attack by a dog.
Nothing of that kind happened to Mrs Welsh. "Theoretically" the court could proceed under
section 1(1) in respect of a dog, but the evidence did not support such a
case. This was a purely accidental
collision. The physical attributes or
habits of Ebony, and of labradors in general, did not
make Ebony likely to cause severe injury.
Mr O'Meara's evidence did not establish this, even accepting that
Ebony, along with other labradors, is a large lively
dog who likes to run about. There was no
suggestion that the pursuer considered herself to be in
danger. As on previous occasions, she
was happy to be in the field with Ebony and Cava. Just because the accident happened, it did
not follow that it was likely to happen.
Section 1(1) is directed towards inherently dangerous animals, not to
black labradors.
Apart from attacks by dogs, liability for injury caused by dogs rests on
common law fault. That was the intention
of the Scottish Law Commission - see paragraphs 3.29/32 of its
report. The general scheme is strict
liability for special risks. Black labradors do not pose any special risks over and above the
possibility that any dog might bite or attack someone.
[13] So far as the common law case is concerned, Mr Di Rollo
observed that both parties let their dogs off the lead and run together in the
field. Cava was as large and as lively
as Ebony. The defender did not act
carelessly, nor did the pursuer. They
and other villagers regularly behaved in exactly this way. The pursuer was familiar with Ebony, and
there was no reason to anticipate an accident.
The collision could have been caused by Mrs Welsh turning at just
the wrong moment. It cannot be assumed
that Ebony was not watching where she was going. It could easily have been Cava that hit
Mrs Welsh. In short, Mr Di Rollo
submitted that the defender did not act in a negligent manner. In any event, the pursuer could be seen as
accepting any risk - section 2(1)(b) of the
Act. However, Mr Di Rollo's main
submission was that there was no real risk to either accept or guard against.
Submissions in reply for the pursuer
[14] In judging whether severe
injury was likely, it is necessary to ask whether because of her physical
attributes or habits, injury was likely if there was a collision between Ebony
and the pursuer. On that basis, the test
in the Act is satisfied. As to the
circumstances of the accident, Mr MacAulay noted that it had not been
suggested to the pursuer in cross-examination that she was responsible or
partly responsible for the collision by turning into Ebony's path. The evidence had been presented on the basis
that Ebony simply ran into the pursuer.
Decision on strict liability under the Act
[15] The pursuer's case is that, by
virtue of their physical attributes or habits, black labradors are likely to
injure severely or kill persons unless restrained or controlled (section
1(1)(b)). I suspect that for the general
population this proposition would cause much incredulity. There is some authority that I would be entitled
to rely on common knowledge as to black labradors and
their behaviour. However, even if I proceed solely on the basis of the
evidence in the case, I am left wholly unpersuaded that Parliament intended
this provision to apply to animals such as black labradors, or that their
attributes or habits bring them within its terms. Specific provision was made for dogs in
section 1(3), but this provision does not apply in the present case in the
absence of any biting or other form of attack by Ebony. In Fairlie
the pursuer did not argue for strict liability under section 1(1) of the
Act, and in the circumstances of that case, which were very close to the
present, I consider that she was right
to adopt that approach. In my view, the
real issue in the present case is whether the defender failed to take
reasonable care for the pursuer's safety.
I reject the pursuer's case of strict liability under the Act.
Decision on negligence
[16] So far as common law
negligence is concerned, the defender's actions and omissions must be assessed
in the specific context of the circumstances of the case. Both he and the pursuer were behaving in a
common and everyday manner. There is no evidence
that anything had occurred before the accident which pointed to a need to
restrain Ebony. (In saying this I do not
overlook Mrs Fenton's evidence). The pursuer was behaving in exactly the
same way as the defender. She is a
fellow dog owner and is not fearful of dogs.
She was in no sense a vulnerable person, nor
someone at special risk of injury if a large dog was running free in her
vicinity. She was unconcerned about her
situation, as was the defender. She
allowed her retriever to run with Ebony, and the accident could just as easily have
been caused by Cava. In my view, what
occurred was an unfortunate and unforeseen collision. As Mr MacAulay put it - it was a
pure accident.
[17] Against that background, I must ask myself whether reasonable
care required the defender to keep Ebony on the lead, given that she did not
always respond to commands. The standard
required is that of reasonable care. Ebony did not have any peculiar or unusual
characteristic which should have put the defender on his guard. Rather the pursuer relies upon the general
behaviour of black labradors as a breed. It was not suggested that accidents of this
nature or severity are common. Ebony's
behaviour was in no sense mischievous or aggressive. In all the circumstances I consider that this
most unfortunate accident was no more than a possibility. There was no good reason for Mr Brady to
foresee that if Ebony was allowed to run off the lead Mrs Welsh might well
suffer serious injury. Of course had
that been foreseeable, the precise way in which the accident happened would not
have been important (Hughes v The Lord Advocate 1963 SC (HL) 31). However, in my opinion, the likelihood of
injury was not sufficient to impose a duty to take any steps to prevent
it. Thus I conclude that the defender
did not fail to take reasonable care for the pursuer's safety.
[18] If the law was to consider a labrador
running around in a field as something which is dangerous in itself, this would
come close to making dog owners insurers in respect of all injuries and damage
caused by their animals. Some legal
systems do go down that route, but in the 1987 Act, Parliament chose no to do
so. Further, in my view a decision in
favour of the pursuer would run counter to the desire of Lord Scott of
Foscote to guard against the imposition of a "grey and dull safety regime" (Tomlinson v Congleton Borough Council [2004] 1 AC 46 at 100) and to the warning
of Lord Steyn that "the courts must not contribute to the creation of a
society bent on litigation which is premised on the illusion that for every
misfortune there is a remedy" (Gorringe
v Calderdale MBC [2004] 1WLR 1057 at
1059).
[19] It is true that many generations of lawyers were brought up on
the basis that since dogs are not wild animals, their owners would only be
liable for a failure to restrain or control if there was reason to anticipate
that the particular animal had a vicious or otherwise dangerous
propensity. (This approach was said to
be sanctified by a passage in Stair at 1, 9, 5, which in turn was based on laws
laid down in Exodus chapter 21 concerning the ox "wont to push with his
horn.") However, in Henderson v J. Stuart Farms Limited 1963 SC 245, in
a rigorous and learned opinion, Lord Hunter explained that this general
approach was over-simplistic. Rather,
the only question is whether negligence has been established. That case
concerned a bull, and it may be said that there are some obvious
differences between a bull and a black labrador. However, in the specific context of injury
caused by a dog, in Fardon v Harcourt-Rivington (1932) 146 LT 391,
Viscount Dunedin rejected the Court of Appeal's reliance on "the
particular licence allowed to the domestic dog", and determined the case in
favour of the defendant by simply asking whether the owner had breached a duty
of care to the plaintiff. In passing it
is interesting to note that Fardon
was heard and decided while Donoghue v
Stevenson was awaiting judgement, and
it has been observed that the decision provided a glimpse of the landmark to
come. For example, in Fardon Lord Atkin talked of the owner's
ordinary duty to take care that his animal is not put to such a use as is
likely to injure his neighbour. All that
said, in the absence of some warning or reason to anticipate that a dog might
cause harm, a pursuer will need to point to other facts and circumstances from
which it can properly be concluded that the defender has been guilty of such
carelessness as amounts to negligence.
[20] In Milligan v Henderson 1915
SC 1030, in a dissenting opinion, which was a forerunner of later developments,
Lord Johnston said:
"I fully realise
that extreme indulgence is given both by popular consent and by law in this
country to the dog, but I think that consideration stops short of complete
licence, and that the indulgence accorded to the dog at large, as well as in
the owner's company, is always subject to some reasonable attention to the
safety and comfort of others."
Unfortunately for the pursuer, for
whom I have much sympathy, my conclusion is that reasonable attention to the
safety of Mrs Welsh did not require Mr Brady to put Ebony on the lead when
she and Cava came into view. For the
avoidance of doubt it should be understood that this decision does not give all
dog owners free rein to let their dogs off the lead, whatever the
circumstances, so long as there has been no previous evidence of vicious or
dangerous behaviour. My decision relates
to the particular circumstances of the present case. Thus, for example, to allow a black labrador to run around in a public place close to young
children may well be very different.
[21] The overall result is that I shall grant decree of absolvitor, and, insofar as not already
dealt with, I shall award expenses to the defender.
Postscript
[22] There was some discussion before me on the general question of
whether strict liability under the Act for harm caused by dogs is limited to
biting, savaging, attacking or harrying, as provided for in section 1(3) of the
Act, or whether there remains room for a dog to fall within section 1(1)(b) in respect of injury or damage caused by it in other
ways. If consideration is limited to the
terms of the statute itself, much could be said on both sides of this
argument. A review of the Scottish Law
Commission's report and recommendations in the lead up to the Act does not
dispel uncertainty. It is not necessary
for my decision that I come to a conclusion upon this question. However, it is clear that the Commission
rejected the idea of strict liability for all harm caused by dogs. In paragraph 3.18 the Commission stated:
"Apart from injury to persons and animals as a result of direct attack,
liability should, we think, generally rest on fault." The Commission went on to recommend that the
risk that dogs may attack persons or animals should be recognised as a special
risk for which strict liability should be imposed. The general provision for strict liability,
which subsequently became section 1(1) of the Act, was aimed at inherently
dangerous animals, whose ordinary and instinctive behaviour is likely to cause
severe injury or damage (paragraph 1.6).
Such animals were referred to as "dangerous wild animals." The purpose of the deeming provision (now
section 1(3)) was to bring dogs within the general principle "in respect of the
behaviour specified" (paragraph 4.6), and it was hoped that this would
ensure reasonable certainty, reduce litigation, and facilitate the process of
proof in the most common cases. However,
the Commission also stated:
"By providing a
general formula for strict liability, over and above the deeming provisions
concerned with specified animals, we allow some scope for judicial innovation
in those areas where, on the evidence of our consultation, opinions now vary
quite widely."
Suffice for me to say that the Act
does seem to leave the door open for the possibility, theoretical or otherwise,
that it might be proved that a particular type of dog falls within section 1(1)(b) in situations which are outside the scope of section
1(3). However, it is not easy to
envisage to which breed or breeds this might apply, and in any event, in my
view it does not extend to black labradors.
