Case law update - Slater v McNelis – employer’s liability

The All-Scotland Sheriff Personal Injury Court recently reported its decision in a case where employer’s liability was once again under consideration. The question for the court to consider was whether the pursuer was injured in the course of her employment.

The case was brought by Donna Slater, an employee of Trossachs Holiday Park, against her employer. Trossachs Holiday Park was a business trading under two partners, John Wrigley (now deceased) and Tracy Ann McNelis.

Donna Slater was working at the holiday park when she was involved in an accident on 20 July 2018.

She worked as a warden and a housekeeper; her husband also worked alongside her. She raised an action after being injured whilst walking her employer’s dog. Mr Wrigley had a pet Doberman, Khaleesi. Khaleesi was a family pet, who stayed at the holiday park with Mr Wrigley on weekdays. She was described as a “friendly, strong, overweight dog”.  She was not a guard dog.

On 20 July 2018, the pursuer took Khaleesi out for a walk. She had walked Khaleesi on at least two occasions previously. When out with Khaleesi in the holiday park, the pursuer stopped to speak to two guests. Khaleesi was on a lead and was sitting next to the pursuer. As the pursuer spoke to the guests, Khaleesi pulled away suddenly which caused the pursuer to lose her footing and fall on her back. The pursuer sustained a wedge fracture to her T12 vertebra.

Prior to the pursuer being injured, there had not been any other incidents involving Khaleesi. A number of other staff members had walked Khaleesi in the past, including the pursuer.

The pursuer’s case was that she had walked Khaleesi in the course of her employment. She said that Mr Wrigley had handed her the lead and she felt that she couldn’t say no to her employer. The pursuer believed it was the defender’s responsibility to take reasonable care of her safety, and not subject her to any unnecessary risk of injury.

The pursuer’s employer didn’t agree that they could be liable for the injury suffered by the pursuer. The employer’s position was that the pursuer had walked Khaleesi voluntarily. She had not been asked to walk the dog in the course of her employment and that even if this had been the case, there was no breach of duty since Khaleesi was a friendly dog.

After hearing the evidence presented by both sides, the Sheriff concluded that the pursuer had not been instructed by her employer to walk Khaleesi. All staff that had walked Khaleesi (as well as any other dogs in the park) had done so voluntarily.

The Sheriff also considered whether the defender had failed to conduct a “suitable and sufficient” risk assessment in connection with walking Khaleesi. The Sheriff was satisfied that sufficient consideration had been given to the risks involved with walking Khaleesi. Evidence was led that Khaleesi wore a Halti collar when being walked. A Halti collar is used to safely train and modify the behaviour of dogs.

The case failed on the basis that the pursuer failed to establish that she had been instructed by her employer to walk the dog. She did not prove, on the balance of probabilities, that her employer had breached its duty of care to her.

The case focused on the importance of direct instructions from an employer to an employee. Where employees are instructed to complete a task in the course of their employment, employers must be aware that a duty of care may arise. In this case, the lack of a direct instruction allowed the court to conclude that no duty of care had arisen, and therefore, no duty had been breached.