Dog owner not liable for accidental collision
20 Mar 08
No negligence in letting black labrador with no history of trouble run with dog it met
The owner of a black labrador which collided with a woman also out walking her dog, seriously injuring her knee, has been cleared of blame in an action of damages.
Patricia Welsh sued Neil Brady in the Court of Session after Mr Brady's bitch, Ebony, knocked Mrs Welsh to the ground while running with her retriever, Cava, in a field at Wellbank, Broughty Ferry, a regular haunt of dog walkers.
The judge, Lord Malcolm, described Ebony, who was about two and a half years old at the time of the acccident in March 2005, as a "large, lively and boisterous animal", and typically for her breed, "friendly towards people and other dogs". She had undergone some basic training from her owner but did not always respond to commands. Though excitable, she was neither aggressive nor vicious, and had previously given no cause for concern over her behaviour towards other people.
Mrs Welsh gave evidence that she was aware of the two dogs running towards her, and "the next thing" she was on the ground after Ebony ran at speed, head first into the inside of her right knee. Only one witness stated that Ebony had ever jumped up at anyone, and that was on a single occasion.
Lord Malcolm had little hesitation in rejecting a case of strict liability under the Animals (Scotland) Act 1987, brought on the basis that "by virtue of their physical attributes or habits, black labradors are likely to injure severely or kill persons unless restrained or controlled". The judge commented: "I suspect that for the general population this proposition would cause much incredulity."
Not "free rein"
The real issue, he said, was whether Mr Brady failed to take reasonable care for Mrs Welsh's safety. This depended on the specific circumstances. Neither party had had any concern about the dogs running together before the accident, and "the accident could just as easily have been caused by Cava. In my view, what occurred was an unfortunate and unforeseen collision". It followed that there had been no duty to keep Ebony on a lead in Mrs Welsh and Cava's presence.
While expressing sympathy with Mrs Welsh, who lost out on the £160,000 that had been agreed as compensation for her injuries if she had won, the judge pointed out that "For the avoidance of doubt... 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", he added, "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."
Lord Malcolm's judgment can be read at http://www.scotcourts.gov.uk/opinions/2008CSOH45.html .