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 £160,000. 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 Any potential significance of the first matter was superseded by the acceptance of the pursuer's account as to how the accident happened, and little turns on the other issue.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.