The interpretation of the Animals (Scotland) Act 1987 continues to cause interest. The statute imposes strict liability on the keeper of an animal which causes injury or damage in certain circumstances. The wording of the Scottish statute is quite different from the wording in the English legislation. The English courts have been prepared to impose strict liability on owners of horses (Mirvahedy v Henley 2003) and dairy cattle (McKaskie v Cameron 2009) in certain circumstances. It is by no means certain that strict liability would be imposed in Scotland in the same circumstances.
The appeal court of the Court of Session (the Inner House) recently had cause to look at this in the case of Welsh v Brady (2009 CSIH 60). This case hit the headlines earlier this year when the judge at first instance ruled that there was no liability at common law or under the Act where a boisterous Labrador knocked over the Pursuer, causing her serious injury. The Pursuer appealed on the basis that the judge at first instance erred in law in finding that the Pursuer had failed to establish the statutory case.
Considering the requirements of the Scottish legislation, the appeal court held that the key question in this particular case was:
“Are fully grown black Labradors by virtue of their physical attributes or habits, likely (unless controlled or restrained) to injure severely or kill persons or animals?”
The Pursuer had led expert evidence to the effect that whilst Labradors were generally “biddable”, a dog in a public place can be seen as a threat and can scare people. She emphasised the need to instil obedience and indicated that a dog which does not return on its owner’s command should be kept on a lead in a public place.
The Inner House held that this evidence fell far short of what the statute requires for proof of strict liability. “It went no distance at all towards demonstrating that black Labradors (or any sub-division of the breed whether by reference to age, sex or other criterion) are by virtue of their physical attributes or habits likely to injure severely or kill persons or animals.” The appeal failed.
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Louise Hay