Trainer’s aggressive dog case is instructive
Val Pitt says a recent personal injury claim hinged on the acceptance of risk
A recent judgment from the All-Scotland Sheriff Personal Injury Court provides guidance on how the Animals (Scotland) Act 1987 operates when a professional handler is injured by a known aggressive dog.
In the case of Barry Heskin v John Reynolds and Sharee MacKerron, Mac, a collie jointly owned by the defenders, had a history of aggressive behaviour, including biting both owners and showing aggression towards a grandchild. The defenders (Reynolds and MacKerron) sought advice from a number of professionals, including a specialist vet, and were advised that Mac posed a household risk and that euthanasia should be considered.
The defenders’ neighbour recommended Mr Heskin (the pursuer), an experienced dog trainer, who had helped with their own dog’s aggressive behaviour. He had supplied and sold dogs to the emergency services, competed in dog trials for tracking and obedience and was a member of the Scottish Kennel Club.
The defenders contacted the pursuer and advised that although Mac appeared friendly, he could suddenly become “ferocious and aggressive”. He was shown a video of Mac aggressively barking and snarling. Despite these issues, the pursuer, an experienced dog trainer, agreed to assess if Mac was capable of being trained.
The defenders brought Mac to a field, wearing a collar and chain. The pursuer advised that he was unable to assess Mac’s ability to be trained whilst wearing the collar and asked for it to be removed. The pursuer restrained Mac with a slip lead and walked him approximately 100 yards up the field. By the end of the walk, the pursuer had a degree of control over Mac.
However, when Mr Heskin went to get a second lead from his vehicle, Mac jumped at his face. The pursuer lifted his right hand to protect himself and Mac bit him, causing significant injuries that required medical treatment and surgery.
The pursuer sued the defenders for damages, arguing that they were liable under the Animals (Scotland) Act 1987 which imposes strict liability on animal keepers, for injuries caused by animals.
The 1987 Act deems dogs to be included as a species to which strict liability attaches as they are “deemed to be likely (unless controlled or restrained) to injure severely or kill persons or animals by biting or otherwise savaging, attacking or harrying…”
However, there is an exception from liability within the Act where the person sustaining injury willingly accepted the risk of it. Therefore, the question for the court was whether the defenders were exempted from the strict liability, on the basis that the pursuer was injured wholly due to his own fault or alternatively, that he had willingly accepted the risk of injury.
The court found that Mt Heskin knew Mac was an aggressive dog, that he had bitten his owners and that a vet had suggested he be euthanised. He also knew that the defenders had approached him as a last resort and he accepted in his evidence that he knew that Mac might attempt to bite him. On that basis, the court found that the pursuer made a conscious and informed decision to proceed and upheld the defence that the pursuer willingly accepted the risk of being bitten. Therefore, the defenders were not considered liable for the injuries sustained.
Val Pitt is a Partner, HF