CaseCheck - Scottish Courts Case Reports from the Court of Session and Sheriff Courts Scotland; Employment Tribunal Reports, Case Reports archive - Patricia Welsh v. Neil Brady [2008] CSOH 45

Patricia Welsh v. Neil Brady [2008] CSOH 45


Location: Case Types Personal Injury
Posted by: Euan A. Dow	20/03/2008 17:05
Personal Injury - Proof:- In the case the pursuer, a consultant orthopaedic surgeon, sought damages for a severe injury to her right knee when she collided with the defender's labrador whilst she was walking her golden retriever in a field near the village of Wellbank on 14 March 2005. In the case damages were agreed at £160,000 and the only issue was limited to the question of whether the defender was liable to the pursuer. It was submitted on behalf of the pursuer that liability was established under the Animals (Scotland) Act 1987 which failing by way of common law negligence on the part of the defender. It was further submitted that the injury suffered by the pursuer was directly referable to the conduct of the animal that was under the control of the defender and the defender was strictly liable for the injury to the pursuer and there was no need to prove negligence, however, it was submitted that the evidence established that the defender had failed to take reasonable care for the safety of the pursuer. It was submitted on behalf of the defender that apart from attacks by dogs, liability for injury caused by dogs rests on common law fault and in the present case the defender did not act carelessly given both dogs were off their leads at the time of the collision and the defender did not act in a negligent manner. Here the court considered whether the failure by the defender to put a lead on his dog when the pursuer came in to view amounted to negligence.
Court: Court Of Session
Click on this link to access the full judgement.

Comments (1)

Re: Patricia Welsh v. Neil Brady [2008] CSOH 45

By Digby Brown on 18/11/2008 20:58

In cases where pursuers have been injured by dogs, a crucial issue in proving liabilty at common law will be to lead previous evidence of the dog’s vicious or dangerous behaviour. The pursuer must show that defender has breached his duty of care and that the likelihood of injury was reasonably foreseeable. It will be helpful in trying to prove foreseeability to identify any witnesses who may have previously seen the dog jumping up on people or running around out of control. If the pursuer can establish foreseeability based on the dog’s previous behaviour then the defender may struggle to escape liability when he could have taken steps to prevent the injury by, for example, putting the dog on its lead.

Whilst the pursuer in Welsh v Brady failed to prove her case at common law, the Lord Ordinary highlighted that his decision related to the particular circumstances of that case. He commented that things may have been different if the black labrador had been allowed to run around in a public place close to young children. It may well be important therefore to look at the age/vulnerability of the pursuer in assessing the merits of similar types of cases.

The particular circumstances of Welsh precluded the pursuer from arguing section 1(3) of the Animals (Scotland) Act 1987. There was no suggestion that the defender’s dog had “savaged, attacked or harried” her. It was therefore necessary to argue strict liability should attach in terms of section 1(1)(b) of the 1987 act. That section provides that:-

“a person shall be liable for any injury or damage caused by an animal if...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...”

The defender’s black labrador weighed 25 kg. It was held to be a large, lively, boisterous animal who did not always respond to verbal commands from the defender. It was accepted that the dog must have struck the pursuer with considerable force given the extent of her injury. In spite of this, the judge held there to be no liability under the 1987 Act. He was not persuaded that the section should apply to black labradors and commented that such a proposition would “cause much incredulity” within the general population.

The Lord Ordinary did not rule out the possibility of other cases being argued under section 1(1)(b). He acknowledged that the Act has left open the door for it to be shown that another breed of dog can fall within section 1(1)(b) where section 1(3) does not apply. If the facts of the case had been exactly the same but the defender’s dog had been a rottweiller, could this have resulted in a successful finding of liability under section 1(1)(b)?

This case is being appealed by the pursuer insofar as it relates to the Lord Ordinary’s findings on the statutory case. The appeal will be heard in June 2009.