Dog walker’s damages claim leads to defeat - Steven Smart

As the holidays approach, many will flock to holiday retreats in the Trossachs to take in the beautiful surroundings. Unfortunately this was the setting for an accident in the summer of 2018. Donna Slater, an employee at a holiday park was injured while taking the owner’s dog for a walk. Was the employer responsible in law for the dog’s actions?

The Pursuer (Donna Slater) worked for the Defender, Tracy Ann McNelis, and her business partner, John Wrigley, at Trossachs Holiday Park. Mr Wrigley regularly brought his dog, Khaleesi, to the Park. The Pursuer finished work and decided to take Khaleesi for a walk. She stopped to engage in conversation with guests. Khaleesi suddenly pulled away with force, causing the Pursuer to fall and land heavily on her back, causing significant injuries preventing her from returning to work.

The Pursuer sought damages of £345,890 and claimed that Mr Wrigley was aware of the risks posed by his large and powerful dog, a Doberman Pinscher. She argued that she was walking Khaleesi in the course of her employment.

The Defender argued that the Pursuer did not ask permission to do so and was not asked to walk Khaleesi. Further, it was not reasonably foreseeable that the accident might occur. The Pursuer had walked Khaleesi previously without incident.

Steven Smart is a Partner and Head of Glasgow office, Horwich Farrelly

Sheriff Kier did not accept the Pursuer’s evidence that she had been instructed to walk Khaleesi, nor that a culture existed whereby employees felt they required to do so during the course of their employment. The Pursuer was not acting in the course of her employment at the time of the accident. Accordingly, the claim failed.

What if the Pursuer had been acting in the course of her employment? The Sheriff accepted that Khaleesi was a friendly, good natured dog. It was unknown what caused Khaleesi to bolt on the day of the accident. There was no evidence to suggest that she was easily spooked or that anyone had ever raised concerns about her behaviour when walking her. The Pursuer had also failed to establish any breach of duty as she could not prove that any precautions taken as a result of a risk assessment would have avoided the injury.

If the Pursuer had established that there was a liability, the Defender sought to argue that the legal maxim of volenti non fit iniuria would apply; in essence, the Pursuer had consented to the risk of injury by taking Khaleesi for a walk. Sheriff Kier observed that had the Defender owed a duty of care to the Pursuer as an employee, the maxim would not have applied, as there was no evidence that the Pursuer ignored instructions not to walk Khaleesi, or evidence of any risks or previous incidents.

Similar to the finding in the earlier decision of the Court of Session in Coia v Portavadie Estates Ltd, the point of note here is that just because an accident occurs in circumstances where there is some link between an employee and an employer, the right to obtain damages is not automatic. It must be shown that the accident occurred within the context of the employment and was of such a nature that the employer fell under a duty to take steps to prevent the accident. The Pursuer’s decision to take the dog for a walk of her own accord did not meet that test.

​Steven Smart is a Partner, Horwich Farrelly