31 March 2023

‘Dogs Die in Hot Cars’ were a band from St Andrews in the early 2000s. This e-update has nothing to do with them, but it does concern a case which involved a dog, some deaths, and a very hot car.

BTO were successful in defending an EL claim in the All Scotland Personal Injury Court, with the judgement from Sheriff Keir issued on 28 March 2023 awarding absolvitor in favour of the defender.

The Pursuer was an employee of a holiday park and lived on site in accommodation supplied to her as part of her employment. She took the park owner’s dog for a walk and suffered injury when the dog bolted and she fell. The injury was significant and the claim had a value of £350,000, agreed before proof.

The matters in dispute included: whether the Pursuer was “at work” at the time of her injury; whether walking the insured’s dog was part of her work duties; whether the dog was a guard dog; and whether, if it was not ordinarily part of her duties, she had specifically been asked to walk the dog on this occasion.

Diligent enquiries into the circumstances of the incident had been undertaken by our insurer client prior to proceedings being raised and thankfully so, as a number of evidential hurdles subsequently arose. The insurer’s preliminary investigations were material in us being able to defend the case.  The principal insured had sadly passed away approximately two years post-incident. The dog itself had also died by that time so it was not possible to have it examined and investigate its nature or behavioural characteristics.  A signed statement provided by the deceased insured was spoken to in evidence by the claims inspector who took it.   The deceased had denied ever asking the Pursuer to walk his dog while she was at work.  Records showing the deceased’s responses to the DWP regarding the circumstances of the injury were also considered by the court.

An eyewitness who could speak to whether the Pursuer had been asked to walk the dog had relocated to The Czech Republic. Another eye witness to that issue had, by the time of the proof, returned to her native South Africa for a long delayed visit to her family post-pandemic.

One positive impact of the pandemic was the ability to conduct a hybrid proof. Both parties called some witnesses to provide their evidence remotely via video-link. One witness to the circumstances of the Pursuer taking the dog for a walk gave evidence from inside a (very hot) car in mid-summer rural South Africa.

The matters at issue were fact specific and the Sheriff’s decision ultimately was based on which witnesses he found credible and reliable.   Those led for the Defender were preferred, with their evidence being supportive of what the deceased’s evidence would have been.

The Sheriff found in fact that the Pursuer was not at work at the time of her fall; that the dog was a family pet and not a guard dog; that she took the dog for a walk of her own accord; that she had not been asked to do so; and that the deceased had not even been present when she took the dog. Further, he found that even if the Pursuer was acting in the course of her employment, there was no breach of duty for failure to conduct a suitable and sufficient risk assessment. There was no evidence to show that any such risk assessment would have identified reasonable measures that, if taken, would have avoided the injury. 

Given the evidential hurdles we faced and ultimately overcame in this matter, what is clear is the importance of early investigation and recording of witness evidence. Even where significant evidential difficulties arise, as in this case, it is still possible for a Defender to successfully challenge a claim where good investigations have been carried out at an early stage.

Tim Webster, Associate: twe@bto.co.uk / 0141 221 8012