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Patricia Welsh v. Neil Brady [2009] CSIH60


Reclaiming Motion:- On 14 March 2005, the pursuer went for a walk with her golden retriever near Dundee. The defender was also in the field with his black Labrador. Both dogs were off the lead and were running around together, however, the pursuer, on calling for her own dog, both dogs ran towards her and the defender's dog collided with her right knee and knocked her over. The collision resulted in the pursuer suffering severe injury to her right knee, for which she sought damages from the defender. The pursuer pleaded a statutory case of strict liability based on section 1 of the Animals (Scotland) Act 1987 and a common law case based on the alleged negligence of the defender. The quantum of damages was agreed, in the event of liability being established, at £160,000, however, the Lord Ordinary found against the pursuer on both cases and assoilzied the defender. Here the pursuer reclaimed and submitted that the Lord Ordinary erred in law in finding against the pursuer on the statutory case of strict liability. Section 1(1) of the 1987 Act sets out three criteria that must be satisfied in order to establish strict liability:- "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." Here the court considered, under reference to section (1)(b) whether fully grown black Labradors, by virtue of their physical attributes or habits, are likely (unless controlled or restrained) to injure severely or kill persons or animals or whether the interlocuter of the Lord Ordinary should be adhered to.