Paw Law: bringing a claim if you are injured by a dog

As a responsible dog owner, it is important that owners are aware of legislation that could affect them and their beloved pet. When injuries are caused by domestic pets, legislation is in place to protect and support those who are attacked through no fault of their own.

There are different routes to bring a civil action when someone is injured by a domestic pet, such as a dog. Those are:

1. Under the Animals (Scotland) Act 1987
2. A case in negligence
3. Under the Occupiers (Scotland) Act 1960

Animals (Scotland) Act 1987 and Strict Liability

The Animals (Scotland) Act 1987 imposes strict liability where an animal causes injury and that animal is deemed to be part of a dangerous breed and likely to injure someone by biting or savaging.

If the breed is not deemed as dangerous or likely to injure, then the position is more complex.

In the Scottish case of Welsh v Brady [2009] CSIH 60, Welsh was injured by Brady’s black Labrador. However, this was not a savage attack but merely boisterous behaviour. Both dog owners had been walking their dogs, off the leads, when Brady’s Labrador ran towards Welsh knocking her over and injuring her knee. There was no biting involved.

The Court of Session was required to interpret S.1(1) of the Act which stated:

“A person shall be liable for any injury or damage caused by an animal if (a) at the time of the injury or damage complained of, he was a keeper of the animal; (b) the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained)to injure severely or kill persons or animals, or damage property to a material extent; and (c) the injury or damage complained of is directly referable to such a physical attribute or habit.”

The Court was satisfied that Section 1(1)(a) and (c) were satisfied and therefore had to focus their attention on whether Section 1(1)(b) had been met – that was that the black Labrador was likely to cause severe injury.

The Court found that this Labrador in particular weighed 25kg and was large, boisterous and did not always respond to her owner. However, in order to satisfy the requirements of Section 1(1)b, firstly, the species of animal must be identified and considered and whether it’s “members” were generally likely to do certain things that, unless controlled, would likely injure or kill persons.

The Court emphasised that evidence must be led and a finding made about the physical attributes and habits of the members generally of the species in question. Expert evidence would be wise, in that regard, perhaps from a vet or expert dog trainer.

Having heard evidence from an expert witness, an experienced dog handler, the Court held that the evidence did not establish that black Labradors, by virtue of their physical attributes or habits, are likely to injure severely or kill persons. The case, thus, failed and Brady, the labrador’s owner, was held not liable.

The Court stressed that, if an injury is “directly referable” to biting, savaging, attacking or harrying” by a dog then strict liability will attach and the owner will be liable. However, if the injury was caused by any other way, then the owner is only liable if the breed of dog is likely to be a danger.

A Case in Negligence

Whilst a claim in negligence is possible for most animal related injuries, they can be difficult to prove. Pursuing a claim under Strict Liability (as above) may be more favourable because to succeed in negligence, the pursuer must prove that the owner knew or ought to have known of the risk attached to the dog and that injury was foreseeable. Given that, the owner should have taken steps to minimise the risk and protect against it. That is difficult to prove where domestic pets are involved. There must be clear evidence of a tendency on the animal’s part to attack, which is known to the owner, and the owner has failed to control or manage the animal.

Occupiers’ Liability (Scotland) Act 1960

The occupier of premises is required to show such care as is reasonable in all the circumstances to see that anyone entering the premises does not suffer injury or damage by reason of any dangers due to the state of the premises. Animals on the premises may also represent such a danger in certain circumstances.

What about Criminal Injuries?

Pursuing a claim through the Criminal Injuries Compensation Authority (CICA) is by no means straightforward. The CICA will have to be satisfied that the injury arose as a result of criminal violence. Given that, the only example that the CICA would consider is if a dog was deliberately set upon someone to cause severe injury. The position is less clear where the owner knows that the dog is dangerous and recklessly lets it out of their control. The CICA will perhaps look more favourably on cases where there has been a criminal prosecution.