Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

Case Reference: PD/144/09

 

JUDGMENT   of   SHERIFF FIONA LENNOX REITH, Queens Counsel   in the cause   JANICE FLYNN, residing at 22 Baberton Mains Row, Edinburgh   Pursuer   against   LOTHIAN AND BORDERS POLICE having its headquarters at Fettes Avenue, Edinburgh   Defenders   ­­­­­­­­­­­­­­­­­­­­­­­_________________

 

Act: Norrie, Gillespie Macandrew, Solicitors, Edinburgh

Alt: Russell, Simpson and Marwick, Solicitors, Edinburgh

 

 

Edinburgh, 2^nd August 2010

 

The sheriff, having resumed consideration of the cause, sustains the defenders' second plea-in-law to the extent of excluding from probation the following in Article 4 of Condescendence at page 10: "and (b) every such floor shall have effective means of drainage where necessary." Quoad ultra Allows the parties a proof before answer of their respective averments, reserving the second plea-in-law for the defender, and appoints the same to proceed on a date to be afterwards fixed; reserves meantime all questions of expenses and appoints parties to be heard thereon on 31^st August 2010 at 9.45am within the Sheriff Court House, Chambers Street, Edinburgh.

 

NOTE

Introduction

[1] This is a case which came before me for debate on 15 July 2010. Mr Russell, on behalf of the defenders, invited me to sustain the defenders' second plea-in-law, which was a general plea to the relevancy and specification of the action, by excluding certain of the pursuer's averments from probation and thereafter to allow a proof before answer reserving his second plea-in-law quoad the rest of the pursuer's case. Mr Norrie, on behalf of the pursuer, invited me to repel the defenders' second plea-in-law or, alternatively, to allow a proof before answer in relation to all of the pursuer's averments. A number of attacks were made on the relevancy and specification of the pursuer's averments. However, the issue of most significance concerned the interpretation, scope and application of the Animals (Scotland) Act 1987, section 1. My conclusions on this issue are at paragraphs [49] to [57] below.

 

The Pleadings

[2] The pursuer's position on record may be summarised as follows. In Article 2 of Condescendence she avers inter alia that on 12 July 2006 she was working in the course of her employment with the defenders as a member of police support staff in the Horse and Dog Section based at Fettes Police Station in Edinburgh. Her duties involved her in exercising police dogs kept in kennels in the grounds of the police station. On the date in question, she was walking one of the police dogs, known as "Jeck", on a lead along a traffic route used for dog walking which connected the exercise area to the kennels. She was with a fellow dog walker. As she was walking along the traffic route to return Jeck to the police kennels, the pursuer encountered another police dog ("dog B"). Dog B was caged in the back of a police van parked in front of the kennels. The back doors of the van had been left open by another employee. The pursuer went on to aver: "Jeck immediately lunged forward to get to dog B within the police van thereby pulling the pursuer forward by its lead which she was holding. The dogs thereby began attacking and harrying each other. The presence of the cage within the van did not prevent the dogs from attacking and harrying each other. Jeck attacked and harried dog B. Dog B attacked and harried Jeck and the pursuer. The surface upon which the pursuer was walking was comprised of a mixture of sand and grass. It was slippery. The mixture of sand and grass made it so. It was unsuitable for the purpose of police dog walking. The pursuer was unable to resist being pulled forward by Jeck who remained attached to his lead causing her to violently jerk her neck. When the defender (sic) was pulled by the dog, the ground was too slippery for her to maintain her footing. The pursuer lost her footing... There was no established practice of dog walkers closing van doors... There had been previous incidents where dog walkers such as the pursuer had been injured by police dogs. This resulted from the dogs being startled by encountering people or other dogs on the access road to the kennels. An email was sent out to the dog section on 5 December 2003 detailing procedures which would be taken to avoid this. The measures proposed were not properly enforced and no steps were taken to reduce risks to employees such as the pursuer. A copy of the said email is produced and referred to for its terms which are incorporated herein brevitatis causa."

 

[3] In Article 3 of Condescendence, the pursuer averred inter alia: "it was (the defenders') duty to ensure that dog walkers such as the pursuer had a safe surface which was not slippery to walk on and which would provide support if the dog being walked made a rapid movement... The defenders had been put on notice of the likelihood of persons using the area. Reference is made to the prior averments in condescendence 2 regarding the email sent on 5 December 2003 and the incidents referred to therein."

 

[4] In Article 4 of Condescendence, the pursuer averred that the accident was caused by a breach by the defenders of the Workplace (Health, Safety and Welfare) Regulations 1992, regulation 12. In support of this she averred inter alia: "The defenders did not ensure that the work environment was safe. In addition, the path over which the dogs were walked was a mix of sand and grass which made it unsafe. When the pursuer was pulled by the dog, the ground was too slippery for her to maintain her footing. The pursuer lost her footing. The area was not suitable for walking police dogs. It was slippery being comprised of a mixture of sand and grass." In this Article of Condescendence the pursuer also made reference to the terms of regulation 12(2)(b) which is to the effect that the floor of every traffic route requires to have an effective means of drainage. The full terms of regulation 12 as founded upon by the pursuer on averment are to be found at paragraph [12] below.

 

[5] In Article 4 of Condescendence the pursuer further went on to aver that the defenders were also strictly liable for the injuries sustained by her by virtue of section 1(1) of the Animals (Scotland) Act 1987 ("the 1987 Act"). In support of that she averred: "The defenders were the keeper of Jeck. They were also the keeper of dog B. Both dogs were alsations. Alsations, by virtue of their physical attributes or habits are "likely to injure severely or kill persons or animals. By virtue of section 1(3)(a) of the said Act are (sic) deemed to be likely (unless controlled or restrained) to injure severely or kill persons or animals by biting or otherwise savaging, attacking or harrying. The injury complained of to the pursuer was directly referrable to the physical attributes or habits of the dogs, namely attacking or harrying. Both were attacking or harrying as hereinbefore condescend (sic) upon. As a result of the attack et seperatim harrying by Jeck, the pursuer was injured. Et seperatim as a result of the attack or harrying by Dog B the pursuer was injured."

 

[6] In Article 5 of Condescendence the pursuer averred that she sustained an acute injury comprising ripping of the tendons and nerves in her neck and displacement of her spine at the C7/8 vertebrae. This was said to have resulted in extreme pain acroos her neck and shoulder and pain and weakness down her right arm and fingers. She continues to experience severe pain in her neck, shoulder and arm and is now unable to work.

 

The Defenders' submissions

[7] An attack on averments about attacking and harrying: Mr Russell submitted that averments on behalf of the pursuer in Article 2 of Condescendence in relation to the dogs attacking and harrying each other were lacking in specification or irrelevant or both. I was referred to the definition of "attack" in "Oxford Dictionaries Online". He submitted that, as a noun, the most apt definition appeared to be "an aggressive and violent act against a person." He questioned, however, how what had been averred could be an attack. In relation to the word "harry", I was also referred to the definition in "Oxford Dictionaries Online": "persistently carry out attacks on..." Mr Russell therefore submitted that this indicated that what was envisaged was an averment of aggresion and violence which was persistent. He submitted that there was perhaps an inference to be drawn from the pursuer's averments that she had been injured when she had been pulled forward by the lead. However, there was no averment that the dogs were in physical contact with each other and undertaking an aggressive or violent act given that dog B was caged in the back of a van with the rear doors open. He submitted that it was difficult to see how the two dogs could be said to be attacking and harrying each other in such circumstances. The injuries had been caused by Jeck lunging forward. They had not been related to dog B attacking the pursuer. There were also averments in Article 4 of Condescendence to the effect that the pursuer was injured as a result of an attack or harrying by dog B, but these could not be correct. He therefore submitted that these averments were lacking in specification or irrelevant. He also submitted that averments to the effect that dog B had attacked and harried Jeck were irrelevant as there was no suggestion that the pursuer had suffered injury as a result of this.

 

[8] In relation to the question of specification, Mr Russell submitted that it remained unclear that the lunge forward, which seemed to have caused the injury, had anything to do with attacking and harrying. He particularly drew my attention to the averment "the dogs thereby began attacking and harrying each other." He submitted that this was after Jeck had lunged forward. This averment was therefore irrelevant.

 

[9] An attack on averments about the surface: Mr Russell next submitted that the pursuer's averments about the nature of the grass and sand surface were also irrelevant. The pursuer had said that the surface was not suitable but had not said what a suitable surface would be. The pursuer averred that she had lost her footing. However, she did not aver that she had fallen. The defenders had also not been told of any consequence of losing her footing. It was not said that she had jerked her shoulder when she had lost her footing or if and when she had fallen to the ground. It was unclear whether it should be assumed that the injury was caused at the outset of a series of events with the subsequent events being merely explanatory. There was no value to the averments about slipperiness as no loss flowed from them. This had a direct consequence for the averments in Article 4 of Condescendence alleging a breach of the Workplace (Health, Safety and Welfare) Regulations 1992, regulation 12. Mr Russell submitted that the case under regulation 12 was all about the adequacy of the surface of the traffic route and that that in turn was unrelated to how the pursuer sustained her accident. It appeared that by the time the pursuer lost her footing her injury had already been sustained and that, in any event, she was clearly pulled to the ground by the dog lunging and not by the condition of the traffic route.

 

[10] Mr Russell further submitted that in relation to the question of a sand and grass surface it might be within judicial knowledge that such a surface in the month of July, in the absence of averments about rain or moisture, was not an unsuitable surface on which to walk a dog. On that basis the averments about a sand and grass surface should not be admitted to probation.

 

[11] An attack on averments about previous incidents: At the commencement of the debate, the pursuer's averments in Article 2 of Condescendence had included averments to the effect that there had been "previous incidents" where dog walkers such as the pursuer had been injured by police dogs. Mr Russell invited the court to exclude the averments concerned from probation on the basis that they were lacking in specification as to when the alleged incidents had occurred and who had been involved. Insofar as an email dated 5 December 2003 had been incorporated into the pleadings, he drew my attention to the fact that this email only referred to one previous incident which had said to be "recent". However, there was no suggestion in the email of more than one incident. That incident had also occurred, according to the email, in the rear drive at the police headquarters. That was not the same location as the episode in the present case. The incident referred to in the email had also concerned a dog bite. That was not the position in the present case. It was also not evident whether the bite had been inflicted on a member of the police staff or somebody else. I was reminded of the well known passage in Macphail, Sheriff Court Practice (3^rd edition) at paragraph 9.29 on the question of specification where the author said: "The degree of specification which will be deemed sufficient for fair notice depends on the particular circumstances of each case. Enough specification must be given to enable the other party to identify what is being alleged against him and to prepare his case. Any material dates, times and places which ought reasonably to be known to the pursuers should be specified". Mr Russell submitted that in the present case he was entitled to know what the previous incidents were, who was involved and on what dates. In the event, in the course of his reply, Mr Norrie on behalf of the pursuer sought and was granted unopposed leave to amend the two passages in the pursuer's averments in Articles 2 and 3 of Condescendence on this issue in order to make it clear that the pursuer was referring to one incident only. Mr Russell nevertheless maintained that the averments concerned should still be excluded from probation for two further reasons. First, it was still not clear, where the pursuer referred to "a previous incident" in Article 2 of Condescendence (following amendment at the Bar), that this was the incident referred to in the email of 5 December 2003. In the second place, he reminded me that, unlike the incident referred to in the email, the present case was not concerned with a dog biting, the episode had not happened at the same place as that referred to in the email and the dog concerned had not been a trainee police dog. Reference to the email was therefore irrelevant and it should be deleted in any event.

 

[12] Mr Russell likewise submitted that the pursuer's averments in Article 3 of Condescendence to the effect that the defenders had been put on notice of the likelihood of danger to persons using the area, referring back to the averments in Article 2 regarding the email sent on 5 December 2003 and the incident referred to in it, were irrelevant. He added that the circumstances arising out of the email of 5 December 2003 appeared to be completely different to that of a dog on a lead pulling and an injury resulting from that.

 

[13] An attack on averments in relation to the Workplace (Health, Safety and Welfare) Regulations 1992, regulation 12: Mr Russell submitted that the pursuer's averments in Article 4 of Condescendence in relation to the regulation 12 were irrelevant. Regulation 12 is in the following terms:

"12. Condition of floors and traffic routes-

(1)  Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

(2)  Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that-

 (a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and

 (b) every such floor shall have effective means of drainage where necessary."

 

[14] Mr Russell submitted that, given that the pursuer was maintaining that grass and sand was not appropriate, this "took one to the unusual". There was therefore an obligation on the pursuer to say what a suitable surface should have been. In addition, Mr Russell submitted that the pursuer was still saying that she was pulled by the dog and that she had sustained injury to her shoulder when the dog had lunged. It then seems that she had lost her footing. He submitted that the accident was "not caused" by the state of the ground but by the dog lunging. He submitted that traffic routes may be appropriate for someone walking along but that there might be circumstances such as a frail person leading a heavy and boistrous dog which might lead to the person losing their footing but not necessarily leading to a finding that the "floor" was inadequate. The pursuer said that she was pulled by a dog when it lunged. She did not say that she would have slipped even if the dog had not pulled when it lunged. There was therefore no causal relationship between the injury to the shoulder as a consequence of lunging and the allegation of slipperiness of the ground.

 

[15] Mr Russell also submitted that the reference of Article 4 of Condescendence to regulation 12(2)(b) was irrelevant because the issue of drainage was not the subject of any averment.

 

[16] An attack on averments in relation to the Animals (Scotland) Act 1987, section 1: Mr Russell next submitted that the pursuer's averments in Article 4 of Condescendence regarding the 1987 Act were irrelevant. The relevant provisions are as follows:

"1. - New provisions as to strict liability for injury or damage caused by animals.

(1)... a person shall be liable for any injury or damage caused by an animal if-

(a) at the time of the injury or damage complained of, he was a keeper of the animal;

(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...

(3) For the purposes of subsection (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..."

 

[17] Mr Russell told me that the requirement in section 1(1)(a) as to the defenders being a keeper of the animal was admitted in the present case. However, he told me that the other two requirements contained in section 1(1)(b) and (c) were in dispute. In particular, he told me that it was not admitted that the dog was of a species which rendered it likely to injure severely or kill persons as required by section 1(1)(b). That he submitted would therefore be a matter for proof.

 

[18] Mr Russell went on to say that this was not a situation where the dog had not been controlled or restrained. It was controlled as it was on the lead at the time and was being restrained by the pursuer. He submitted that this therefore took this case out of the ambit of the 1987 Act. He also submitted that the dog concerned required to have injured severely or killed.

 

[19] Mr Russell next reminded me that the requirement in section 1(1)(c) was that the injury or damage complained of required to be "directly referable" to the physical attributes or habits of the animal concerned, and that in this case that would have to be biting, savaging, attacking or harrying by a dog. His submission was that it could not be said in the present case that the injury complained of was directly referable to any of these things. Even if Jeck was attacking and harrying dog B, injury to the pursuer was not a consequence of that attacking or harrying as the injury was said to have been caused by the lunging forward by Jeck. Mr Russell therefore submitted that the pursuer had failed to show that the injury was "directly referable" to any alleged attacking or harrying. In this connection, Mr Russell referred me to Welsh v Brady 2009 SLT 747 which contains a helpful analysis of the structure of the 1987 Act. In summary, he submitted that the pursuer's averments in relation to the 1987 Act should be deleted for a number of reasons. In the first place, Jeck was controlled or restrained at the time. In the second place, the injury was not directly referable to the attributes or habits of dogs such as Jeck as required by section 1(1)(c). In the third place, there was no averment that Jeck was going to cause severe injury or kill.

 

[20] Mr Russell also referred me to Fairlie v Carruthers 1996 SLT (Sh Ct) 56. This was a case in which it was held (after proof) that the pursuer had failed to establish that the dog concerned had harried or attacked her and that she had therefore failed to establish her case under the 1987 Act. In that case Sheriff Bell had considered the normal meaning of the word "harry". He said: "To me the word "harry" has a connotation of continual harrasing or worrying... it appears to me to be a misuse of language to describe what this dog did to the pursuer as "harrying" her. On the evidence, it ran into her once, knocked her down and did nothing more. However that may be described, it cannot be called "harrying". That leaves the question of whether what the dog did could be described as attacking the pursuer. This appears to me to be more difficult." Sheriff Bell then went on to point out that the pursuer herself in cross-examination had described what had happened as an "accident". He was not persuaded that the pursuer had established on the evidence that the dog attacked her. He went on to say: "The concept of an assault by a dog is a difficult one, but the use of the word "attack" seems to me imply some form of intent, just as an assault cannot happen accidentally, but must at the very least amount to a deliberate act. I appreciate, of course, that on the question of intent, juries are frequently told that they cannot look into anyone's mind, and a fortiori I would not wish to attempt the task of looking into a dog's mind. What I have to do is decide this by looking at what actually happened and deciding whether what the dog did could properly be described as an attack. Taking all these matters into account, I have come to the view that the pursuer has not established to my satisfaction that she was attacked by the dog."

 

[21] Mr Russell went on to submit that, on the averments in the present case, it would be open to the court to say that what happened was not "attacking or harrying".

 

[22] He concluded by submitting that if he was successful in his submission in relation to all points, he recognised that the case would still have to go to proof on the common law cases.

 

The Pursuer's submissions

[23] Averments concerning attacking and harrying: Mr Norrie did not take issue with the definitions of "attack" and "harry" in the extracts from "Oxford Dictionaries Online". However, he submitted that the averments in Article 2 of Condescendence, including those about which the defenders had complained, were matters of fact which the pursuer was offering to prove and that they could not be determined in advance of proof. The lunge forward by Jeck was said by the pursuer to be the beginning of what amounted to attacking and harrying by Jeck of dog B. Dog B was also attacking and harrying Jeck. Whether it did amount to attacking and harrying in the circumstances would be a matter for proof before answer. Mr Norrie submitted that it was entirely possible for both dogs to have been attacking and harrying each other. The averments upon which he particularly founded in Article 2 of Condescendence as follows: "Jeck immediately lunged forward to get to dog B within the Police van thereby pulling the pursuer forward by its lead which she was holding. The dogs thereby began attacking and harrying each other." This will be a question of fact for the court to determine having heard the evidence. He further submitted that there was an analogy with the common law of assault as had been alluded to in Fairlie v Carruthers, supra. Mr Norrie submitted that an "attack" involved a deliberate act with intent to harm and the fact that an attack can be intercepted at some point during the attack does not prevent there being an attack. As in relation to the common law of an assault, there does not have to be a successful, physical, assault. Mr Norrie submitted that Mr Russell had suggested that there had not been an attack as the accident had been caused by pulling and that pulling was not an attack. Mr Norrie submitted that the lunge by Jeck had been the beginning of the attack by Jeck on dog B. It was all in one, namely part of the attack of Jeck on dog B. Mr Norrie's submission therefore was that Jeck was attacking and harrying dog B, as a direct result of which the pursuer was injured. The averments in Article 2 in Condescendence were relevant to both the common law case and the case in Article 4 of Condescendence in terms of the 1987 Act. In relation to Fairlie v Carruthers, supra, Mr Norrie also reminded me that that was a case in which, whilst it had been averred that the alleged incident had occurred as a result of a dog attacking or harrying, having heard evidence, the court had concluded that the facts did not constitute attacking or harrying.

 

[24] Mr Norrie further submitted that sufficient specification was given in the narrative in Article 2 of Condescendence in order to give fair notice of what the pursuer was saying had happened. Mr Norrie went on to point out that the circumstances of the encounter between the pursuer, Jeck and dog B and any incident following from that involving injury to the pursuer were not admitted by the defender. It was therefore being left to the pursuer to prove the circumstances, subject to cross-examination. No alternative version of events was being suggested on behalf of the defenders. Mr Norrie submitted that this was therefore not a situation where it could be maintained that there was any material prejudice to the defenders. A complaint of lack of fair notice on behalf of the defenders would only be justifiable if it was likely to result in material prejudice to them.

 

[25] In the course of his submissions Mr Norrie did, however, seek leave to amend averments in Articles 2 and 4 of Condescendence at the Bar by deleting averments to the effect that dog B had attacked and harried Jeck and the pursuer. This motion was not opposed by Mr Russell. The averments deleted by amendment were, in Article 2 of Condescendence, "Dog B attacked and harried Jeck and the pursuer." and, in Article 4 of Condescendence, "Et seperatim as a result of the attack or harrying by dog B the pursuer was injured."

 

[26] Averments about the nature of the surface: Mr Norrie reminded me that the pursuer's pleadings included the following averments: "When the defender (sic) was pulled by the dog, the ground was too slippery to maintain her footing. The pursuer lost her footing." He submitted that the pursuer's averments were sufficient. Insofar as Mr Russell had submitted that it was within judicial knowledge that sand and grass was an appropriate surface for dog walking, Mr Norrie submitted that this was not a matter for the court to determine at this stage; it was entirely a matter of fact for the pursuer to establish at proof before answer. The pursuer had averred that the condition of the ground was a factor contributing to the accident. I was reminded of averments in Article 4 of Condescendence on this issue.

 

[27] In relation to Mr Russell's suggestion that there was a delay between the pursuer being pulled when Jeck lunged at dog B and the pursuer then losing her footing, Mr Norrie submitted that that was too mechanistic a reading of the pleadings. It had all been one incident. She was pulled and could not maintain her footing at the same time. The pursuer was therefore offering to prove that the issue of the surface on which she was walking played a part in the incident. She was offering to prove that the purpose for which the route between the kennels and the dog walking area was used was not suitable given that there was a risk of coming across other animals or people. The averments in Article 2 of Condescendence about the surface were only referring to the route where the accident happened, namely the route between the kennels and the exercise area. It was therefore not fair for the defenders to suggest that the consequence of the pursuer's averments appeared to be that she wished the dog to be exercised only on concrete or tarmac surfaces. The pursuer was not suggesting that. He also submitted that there was no basis for contending that the pursuer has to suggest a specific alternative surface.

 

[28] Averments concerning previous incidents: Mr Norrie accepted that the averments in Articles 2 and 3 of Condescendence only made reference to one previous incident which he said was that referred to in the email dated 5 December 2003 which had been incorporated into the pleadings. He therefore made a motion at the Bar to amend the averments in Articles 2 and 3 of Condescendence in order to refer to a previous "incident". This motion was not opposed and was therefore allowed. That having been done, Mr Norrie submitted that the pursuer was therefore suggesting that there had been a previous incident which had resulted in a dog being startled by encountering people. This was similar to what the pursuer was maintaining in the present case and this was sufficient to put the defenders on notice of the risks involved in the area where dogs were walked. This was averred in Article 3 of Condescendence. The email dated 5 December 2003 said in the first sentence: "In light of the recent incident concerning a bite inflicted by a trainee police dog on a member of support staff in the rear drive at headquarters..." The email was issued by the defenders. They will therefore know which incident the email is referring to. The pursuer was maintaining that the previous incident had involved a dog being startled by coming across other dogs or people. Whether or not the area where the incident in the present case occurred was sufficiently connected to that of the previous case, and whether the type of incident involved was sufficiently similar, would be questions of fact to be determined at proof before answer.

 

[29] Averments in relation to the 1992 Regulations: Mr Norrie reiterated that the pursuer was referring to the route connecting the kennels to the exercise area. This was clear from Article 2 of Condescendence where it was specifically averred on her behalf that she was walking Jeck on a lead within the grounds of the police station "along a path or traffic route used for this purpose which connected the exercise area to the kennels". The defenders were saying in Answer 4 that there was an adequate traffic route. This was denied by the pursuer. She was offering to prove that the traffic route to which she referred in Article 2 of Condescendence was unsuitable for the reasons set out in Articles 2 and 4 of Condescendence. This was a matter of fact for proof. I was also reminded that the pursuer had averred at the end of Article 2 of Condescendence that the surface upon which the pursuer was walking when the accident occurred had subsequently been changed.

 

[30] Averments in relation to the 1987 Act: Mr Norrie submitted that the pursuer was offering to prove that the accident had occurred as a direct consequence of Jeck attacking or harrying dog B. Mr Norrie reminded me that section 1(1) of the 1987 Act provided: "A person shall be liable for any injury or damage caused by an animal" if three requirements were satisfied. There was no dispute that the defenders were the keeper of Jeck. In relation to the second requirement in section 1(1)(b), Mr Norrie submitted that, because of the deeming provision in section 1(3) of the 1987 Act, if there is attacking or harrying by a dog, section 1(1)(b) was satisfied. In support of this proposition, Mr Norrie made reference to Welsh v Brady, supra, and in particular paragraph [16] where the court said: "... the process of analysis called for by subsection (1)(b) may be short circuited by subsection (3) in terms of which dogs are deemed to be likely to injure or kill by biting, savaging, attacking or harrying. So, if the injury complained of is "directly referable" to biting, savaging, attacking or harrying then it will not be necessary to go into the physical attributes or habits of that species of dog." Mr Norrie also pointed out that it was clear from paragraph [20] of the opinion of the court in Welsh v Brady that it had not been suggested that the dog in that case "bit, savaged, attacked or harried the pursuer" so as to bring the deeming provision of subsection (3) into play. The court in that case had gone on to say: "Consequently, we are thrown back to the generality of subsection (1)(b)." That was not the position in the present case.

 

[31] I was also reminded that, in the light of the opening words of section 1(1) of the 1987 Act referring to "any injury or damage", there was no need for severe injury for the keeper to be liable for injury. Mr Norrie's submission therefore was that if, as a matter of fact, the injury resulted from biting, savaging, attacking or harrying, these were the deemed attributes for the purposes of section 1(1)(b) of the 1987 Act with the result that, if the injury complained of was directly referable to such physical attributes or habits, the keeper will be liable. His submission was therefore to the effect that the purpose of the legislation was that, if someone kept an animal that was potentially dangerous unless controlled or restrained and that animal injured someone due to deemed physical attributes or habits, the keeper would be strictly liable. It would not matter if the keeper had taken reasonable steps to attempt to restrain or control the animal. That was not a statutory defence.

 

[31] In relation to the third requirement in terms of section 1(1)(c) of the 1987 Act that the injury or damage complained of be directly referable to the deemed physical attributes or habits of dogs in terms of section 1(3)(a) of the Act, Mr Norrie reminded me that in this case the pursuer was maintaining that her injury was directly referable to the deemed physical attributes or habits of Jeck in that she suffered injury when it was attacking or harrying dog B, Jeck lunging forward being a part of that. He submitted that the 1987 Act did not require that the attacking or harrying by the dog had to be directed at the person injured. An analogous situation would be where A assaults B but causes injury to a third party in the course of that. This is loss or damage flowing from the attack whether that is injury to the person the attack was aimed at or an innocent bystander. If you are the keeper you are responsible for all injury and damage caused by the attack or harrying provided that it is directly referable to the attack or harrying. Insofar as the court in Welsh v Brady had said, at paragraph [20], that it had not been suggested that the dog had done any of these things in relation to "the pursuer", Mr Norrie submitted that that was simply the position in that case but that the court had not been going so far as to suggest that in any case under the Act a pursuer had to aver and prove that the attack or harrying by a dog had to be directed towards the pursuer himself or herself. It was enough that if the dog was attacking or harrying someone or something and if, in the course of that, a pursuer sustained injury which was directly referable to deemed or actual physical attributes or habits, that was sufficient.

 

Reply of behalf of the defenders

[32] Mr Russell on behalf of the defenders reiterated that the defenders were entitled to know more about the surface to which the pursuer was referring. He submitted that the statutory case in terms of the 1992 Regulations was fatally flawed as the pursuer's position was that she had lost her footing as a result of being pulled by a lunging dog; it had nothing to do with the surface.

 

[33] In relation to the email of 5 December 2003, Mr Russell submitted that the pursuer was on the one hand averring that the defenders had no system but was on the other hand averring (by incorporation of the email into the pleadings) that there was a system as set out in the email. In any event, the previous incident referred to in the email was not analogous.

 

[34] In relation to the pursuer's case under the 1987 Act, Mr Russell submitted that Mr Norrie had advanced an ingenious and novel interpretation in that he was saying that if a dog caused injury there is strict liability. If that was the case, then the pursuers in both Welsh v Brady and Fairlie v Carruthers would have succeeded. However, both had failed. Mr Russell also founded on the passage in Welsh v Brady at paragraph [20] of the opinion of the court where it was recorded that it had not been suggested that in that case that the dog had bitten, savaged, attacked or harried "the pursuer", the implication being that attacking or harrying would have to be directed towards the pursuer who had suffered injury in any case. In the present case, it was not suggested that Jeck had been attacking or harrying the pursuer.

 

[35] Mr Russell next submitted that the pursuer had periled his case on his submission that "we say harrying is attacking". Mr Russell reminded me that the definition of "attack" was an aggressive or violent act. He went on to submit that lunging forward was "not necessarily"an aggressive or violent act.

 

[36] Mr Russell next went on to submit that care had to be taken on "a wider stage". The example he gave was of a situation where a dog saw something it did not like on the other side of a stretch of ground and it ran at speed towards the other dog with a view of attacking it and, in the course of running towards it, it trod on the toe of a young girl causing some kind of injury. He questioned whether an injury in such circumstances would have been as a consequence of "attacking or harrying". In his submission it would not be. And if the dog, before reaching the other dog, had gone through someone's garden and damaged their prized vegetables was that a result of an attack (on the view that strict liability in terms of section 1 of the 1987 Act applied to property as well as persons)? He submitted that these examples demonstrated that, for the 1987 Act to make sense, the attack required to be against the person who was injured and that it did not apply to somebody injured as a consequence of the dog attacking a third party.

 

[37] He also submitted that it was not unknown for police dogs in the course of their duty to restrain individuals on instruction and that, if section 1 of the 1987 Act was as strict as Mr Norrie submitted it was, it must be open to a person apprehended to recover damages for any injury thereby sustained. Mr Russell therefore submitted that there was necessary to interpret the Act in a common sense way.

 

[38] Mr Russell also submitted that section 1 of the 1987 Act should be construed contra proferentem as are provisions concerning contractual indemnities. Such provisions have traditionally been interpreted against those who seek to rely on them. This was because of the strict liability aspect. Indemnities transfer liability to others. Similarly, the effect of the 1987 Act is to deem one party to be strictly liable. However, Mr Russell said that he did not wish to overstate this argument.

 

Discussion

[39] Averments about attacking or harrying: In my opinion, the pursuer's averments in this respect cannot be excluded from probation at this stage. The pursuer is offering to proof that the lunge forward by Jeck was the beginning of, and part of, attacking and harrying by Jeck of dog B. The definition of "attack" in "Oxford Dictionaries Online" to which I was referred was "an aggressive and violent act". The word "harrying" was defined there as "persistently carries out attacks on...". The phrase "attacking or harrying" would seem to me to carry with it the notion of intent. Obviously, as Sheriff Bell indicated in Fairlie v Carruthers, supra there is a limit to the extent to which a court can inquire into the question of intent on the part of a dog. However, it seems to me that there was possible force in the contention by Mr Norrie to the effect that there was an analogy with the common law of assault. An assault, in law, is any deliberate or intentional attack on another person with evil intent. Evil intent in the case of an assault may, of course, be established by evidence on an actual intention to do bodily harm to a victim. However, more usually it is an inference from the circumstances of the attack, that inference being taken from what is proved to have been said or to have happened. I noted that in the course of his ultimate reply Mr Russell submitted at one stage that lunging forward was "not necessarily" an aggressive or violent act. I accept that it may not necessarily be such an act. However, in my opinion, that also means that such a possibility cannot definitively be excluded at this stage because there remains a possibility, and perhaps more than a possibility, that this was the beginning of, and part of, an attack by Jeck on dog B. The pursuer is offering to prove that it was. Evidence will show whether she is right about that. In view of the definition of "harrying" as including the element of persistence, this may be more problematic for the pursuer. However, I do not consider that it would be appropriate definitively to exclude this possibility in the absence of evidence.

 

[40] I do not accept Mr Russell's submission to the effect that, for there to be "attacking or harrying", the dogs would have to have been in physical contact with each other. By way of analogy, for there to be an assault, in law, physical contact is not necessary. I accept Mr Norrie's submission that the fact that an attack might be intercepted during the attack would not prevent it from being said that a dog was engaged in attacking or harrying. Section 1 of the 1987 Act does not require that, for "attacking or harrying" to be constituted, the animal must have been successful in making physical contact with the object of the attacking or harrying.

 

[41] Turning to the complaint of lack of specification, considering the matter broadly, I am not persuaded that there has been a lack of fair notice to the extent that the averments complained of should be excluded from probation. It was also not evident to me in what respects the alleged lack of specification would be likely to result in material prejudice to the defenders. I therefore do not propose to exclude from probation any further averments on this issue other than those which were deleted by amendment at the bar by Mr Norrie in the course of the debate.

 

[42] Averments about the nature of the surface: In my opinion, it is sufficiently clear from the pursuer's averments in Articles 2 and 4 of Condescendence that she is offering to prove that, when she was pulled by the lunging dog, a factor contributing to her losing her footing was that the ground - the surface of which was said to comprise a mixture of sand and grass - was too slippery to enable her to maintain her footing. For example, in Article 2 of Condescendence, the pursuer avers that the surface on which she was walking the dog (which she avers was a traffic route connecting the exercise area to the kennels) was slippery, that it was unsuitable for police dog walking, that she was unable to resist being pulled forward suddenly by Jeck causing her to violently jerk her neck, that when she was pulled by Jeck the ground was too slippery for her to maintain her footing and that she thus lost her footing. This then relates to the duty averred in Article 3 of Condescendence to the effect that it was the defenders' duty to ensure that dog walkers such as the pursuer had a safe surface which was not slippery to walk on and which would provide support if the dog being walked made a rapid movement. Mr Russell criticised the use of the word "support". However, it seems to me that that is not an unreasonable or unintelligible word to use when viewed in the context of the preceding averments in Article 2 of Condescendence.

 

[43] In my opinion, there is no obligation on the pursuer in this case to aver that she had actually fallen. The expression "lost her footing" in well recognised and understood in the courts. I was also not persuaded that there was any justification for insisting in the present case that the pursuer should go to the extent of averring what a suitable surface would have been. In my opinion, the pursuer's averments on this issue are intelligible and give sufficient fair notice to this aspect of the pursuer's case.

 

[44] Mr Russell submitted that it was within judicial knowledge that sand and grass was an appropriate surface for dog walking. I do not accept this. In my opinion, it will be a matter of fact to be established, or otherwise, at proof. I also accept Mr Norrie's submission about the reading of the pleadings by the defenders as being too mechanistic. I formed the view that the interpretation sought to be placed on the pursuer's averments on behalf of the defenders on this issue was not a fair one.

 

[45] Averments about previous incidents: After having heard Mr Russell's submission on this issue, Mr Norrie quite properly accepted that the email of 5^th February 2003 only referred to a single incident and that, therefore, there was no basis for averments referring to otherwise unspecified previous incidents in the plural; hence the motion made by Mr Norrie at the Bar to amend in order to address this deficiency in the pursuer's pleadings.

 

[46] As to whether the area where the incident in the present case occurred was sufficiently connected to that of the incident referred to in the email and whether the incident involved was sufficiently similar to put the defenders "on notice of the likelihood of danger to persons using the area", I have come to the conclusion that these are matters which require to be determined at proof. Mr Russell pointed out that the email referred to an incident involving a bite by a trainee police dog on a member of police support staff and that this was said to have occurred in the rear drive at Headquarters. However, I do not consider that I can positively affirm without evidence that the contents of the email to this effect are irrelevant and insufficient to have put the defenders on notice as contended for by the pursuer.

 

[47] Averments in relation to the 1992 Regulations: Mr Russell's submissions on this issue were concerned with the pursuer's averments about the surface of the route she took. I have already concluded, at paragraphs [42 and 43] above, that the pursuer's averments on this issue are sufficient to go to proof. I am satisfied that the pursuer has sufficiently averred that the condition of the traffic route she was taking was a factor contributing to her losing her footing when the dog lunged. In my opinion, therefore, the pursuer has averred a sufficiently relevant and specific case in terms of the 1992 Regulations.

 

[48] Mr Russell also submitted that the reference in Article 4 of Condescendence to regulation 12(2)(b) was irrelevant because the issue of drainage was not subject to any averments. Mr Norrie did not take issue this submission in his response and did not seek to justify the inclusion of reference to this part of regulation 12 in Article 4 of Condescendence. For the avoidance of doubt, therefore, the reference to this part of regulation 12 will be deleted.

 

[49] Averments in relation to the Animals (Scotland) Act 1987, section 1: I have already considered the meaning of the words "attack" and "harry" in paragraphs [39 and 40] above. The question of whether what Jeck did in this case amounted to attacking or harrying and whether, in turn, the injuries sustained by the pursuer were directly referable to any such attacking or harrying by Jeck are in my opinion properly issues for proof.

 

[50] It is evident from section 1 of the 1987 Act that the general rule is to the effect that the keeper of an animal is liable for "any injury or damage" caused by the animal. Liability is strict as it is no defence for a defender to show that he or she was not in any way in fault. A pursuer must show three things. In the first place, a pursuer must show that the defender was the keeper of the animal (the requirement in section 1(1)(a)). In the second place, a pursuer must show that 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 (the requirement in section 1(1)(b)). In the third place, a pursuer must show that the injury or damage complained of is directly referable to such physical attributes or habits (the requirement in section 1(1)(c)).

 

[51] Mr Russell told me that the requirement in section 1(1)(a) was admitted. However, he told me that the other two requirements were disputed. In particular, as regards the requirement in section 1(1)(b), he told me that it was not admitted that Jeck was of a species which rendered it likely to injure severely or kill persons. In my opinion, this overlooks the deeming provision in terms of section 1(3) of the 1987 Act. The 1987 Act sets out in that subsection a number of animals which, in relation to particular forms of harm, are deemed for the purposes of section 1(1)(b) to belong to a species which, by virtue of their physical attributes or habits, are likely to (unless controlled or restrained) to cause severe injury, or worse, and which therefore always satisfy the requirements set out in section 1(1)(b). Section 1(3) specifically includes dogs. Consequently, all dogs are regarded as posing a risk of severe physical harm, or worse, to persons and other animals. The attributes or habits set out in section 1(3) are in their nature. As a result, it is deemed by the 1987 Act that dogs are likely (unless controlled or restrained) to injure severely or kill persons or other animals in the ways set out in section 1(3). This means that the requirement set out in section 1(1)(b) is always satisfied with dogs. In my opinion, therefore, Mr Russell's contention in this respect was misconceived. Mr Norrie also correctly, in my opinion, pointed out that it was evident from the opinion of the court in Welsh v Brady, supra at paragraph [20] that the deeming provision of section 1(3) had not been brought into play in that case because the pursuer there had not suggested that the dog had bitten, savaged, attacked or harried the pursuer. In contrast, attacking or harrying by Jeck is averred in the present case.

 

[52] Turning to the third requirement set out in section 1(1)(c), for strict liability to apply, this requirement also has to be satisfied. This means that the injury or damage complained of must be "directly referable" to one or more of the deemed attributes or habits of dogs. These include attacking or harrying. Consequently, if what happened was accidental and did not amount to attacking or harrying, strict liability will not arise.

 

[53] In the present case, Mr Russell submitted that strict liability did not arise because Jeck was "controlled or restrained". In my view, this argument is not well-founded. Section 2 of the 1987 Act sets out the exceptions from liability under section 1. The fact that an animal may have been "controlled or restrained" at the time is not included as a defence. The words "unless controlled or restrained" are only relevant to the question of the likelihood of severe injury, or worse, (deemed in the present case) posed by the animal concerned for the purpose of section 1(1)(b). It is therefore no defence that a defender was not in any way at fault by, for example, taking steps to control or restrain an animal which nevertheless manages to cause injury by virtue of one of the deemed attributes or habits such as biting.

 

[54] Insofar as Mr Russell submitted that the dog concerned required to have injured "severely" or killed, in my opinion this is not a requirement of section 1 of the Act. Section 1 provides only that "a person shall be liable for any injury or damage caused by an animal" (emphasis added). I therefore accept the submissions made by Mr Norrie on this issue. The reference to "injure severely" relates only to the question of the likelihood, or deemed likelihood, of injury resulting from physical attributes or habits of the animal in question to which reference is made in section 1(1)(b) and in the deeming provision in section 1(3) of the Act.

 

[55] In relation to Mr Russell's argument that section 1(1)(c) could not be satisfied as it could not be said that the injuries sustained in this case were "directly referable" to any attacking or harrying, it is necessary to consider what "directly referable to" means. It seems to me that the expression "directly referable to" is wider than the expression "caused by". If, for example, a dog which was unrestrained made an attack on someone, it seems to me that it would be irrelevant whether the complainer was injured as a result of a direct attack by the dog or because, for example, he or she tripped and fell when trying to run away even if the dog itself never makes actual physical contact with the complainer. Support for this view can be found in the structure of section 1 in that the opening words provide that a person is to be liable for any injury "caused" by an animal if the three requirements thereafter set out are met by a pursuer. The third of these is the requirement that that injury must have been "directly referable to" the physical attributes or habits of the animal concerned. Consequently, an injury is to be regarded as having been "caused" by an animal (and therefore resulting in liability) if the pursuer can satisfy the court that it was inter alia "directly referable to" the attributes of the habits of the animal. In my view, this makes it clear that the words "directly referable to" are not restricted to the ordinary meaning of "caused by", such as a dog itself causing injury by biting.

 

[56] In relation to the reference to "the pursuer" in paragraph [20] of the opinion of the court in Welsh v Brady, I am not persuaded that this is support for Mr Russell's proposition (advanced in his reply to Mr Norrie's submissions) that any attacking or harrying would have to be directed towards the pursuer himself or herself in any case. It does not appear that this was an issue which was specifically argued, considered and determined in Welsh v Brady. I also observe that, as with Fairlie v Carruthers, Welsh v Brady was also a case decided following proof. It also seems to me that Mr Russell's proposition would require words to be read into section 1 which are not there.

 

[57] In the present case, in contrast to the two examples given by Mr Russell, the pursuer is said to have been directly connected to Jeck in that she had a hold of him by his lead. Because the pursuer is in this position in relation to Jeck she maintains that she then suffers an injury directly due to Jeck lunging at dog B, which she in turn maintains is part of his attacking or harrying dog B while she is holding onto Jeck by means of the lead. This seems to me to be quite different from the two examples given by Mr Russell. The pursuer is offering to prove that the injuries she suffered were directly referable to attacking and harrying by Jeck (albeit that attacking or harrying itself is said to have been directed against dog B) and, in my opinion, it cannot be said that such a situation could on no view be regarded as directly referable to actions potentially amounting to "attacking or harrying". It does not seem to me to be relevant whether a person is injured as a result of an attack or harrying specifically directed against him or her or whether, because he or she was attached to or connected with the dog in some way, such as holding it on a lead, he or she was then injured when the dog lunged as part and parcel of what is said to have been an attack on or harrying of another dog. Again, it seems to me to that would be to read words into section 1 which are not there. The further example mentioned by Russell about police dogs "restraining" individuals on instruction is not analogous to the circumstances arising in the present case. I therefore do not consider it necessary to determine what the position might be in such a situation.

 

Result

[58] As I have recorded, after having heard Mr Russell's submissions, Mr Norrie made a motion at the Bar to amend the pursuer's averments in a number of respects. This was not opposed. The averments to which I have referred in paragraph [48] have now also been deleted. Quoad ultra I have allowed a proof before answer reserving the defenders' second plea-in-law.

 

Expenses

[59] I was requested by both parties to reserve all questions of expenses and put the case out for a hearing on this issue.