Patricia Welsh v Ian Brady [2009] CSIH 60
Another shaggy dog story from the Court of Session. In the late
afternoon of 14 March 2005 Mrs Welsh took her golden retriever,
Cava, for a walk in the open fields to the south of the village of
Wellbank, near Dundee. Mr Brady had also decided to walk his dog, a
black labrador named Ebony, at the same location. Given the open
space, both owners let their respective dogs off the lead to allow
them to run around freely.
Ebony was a "large, lively and boisterous" dog, weighing
approximately 25 kilograms. She was a playful dog and did not
always respond to verbal commands to return to her owner.
The two dogs were playing together as their owners walked
through the field. Mrs Welsh stopped walking, turned around and
called "Cava come". At that point both dogs ran towards her. Ebony
collided with the inside of Mrs Welsh's right knee and knocked her
over. Unfortunately, she suffered a serious injury to her right
knee and sued Mr Brady for damages at common law and under Section
1 of the Animals (Scotland) Act 1987.
The case was heard at first instance by Lord Malcolm [2008] CSOH
45. He decided that Mr Brady was not in breach of his duty to take
reasonable care as there was no good reason for him to foresee
that, if Ebony was allowed to run off the lead, Mrs Welsh might
suffer injury. He also considered that he was not strictly liable
under the Animals (Scotland) Act 1987.
Mrs Welsh appealed the decision to the Inner House of the Court
of Session - the Scottish appeal court - in respect of Lord
Malcolm's decision under the Animals (Scotland) Act 1987. Section
1(1) of the Act sets out three criteria which must be present to
establish strict liability for damage caused by an animal.
It provides that "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 of damage complained of is directly referable
to such physical attributes or habits"
Mrs Welsh argued that in running at a fast speed towards her
Ebony was behaving in a manner typical of labradors if neither
controlled or restrained. The injury that she suffered was directly
referable to that behaviour.
The court however considered that the pertinent question to ask,
under the statute, 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?" They
considered that the evidence fell considerably short of
establishing an affirmative answer to that question. The pursuer
was barking up the wrong tree. The evidence "went no distance
at all towards demonstrating that black labradors ... are, by
virtue of their physical attributes or habits, likely to injure
severely or kill persons or animals."
As Lord Malcolm pointed out, the proposition that black
labradors are likely to severely injure or kill, unless restrained
or controlled, would cause much incredulity for the general
population. What happened to Mrs Welsh was an unfortunate accident.
The Inner House were no doubt also mindful of the fact that people
in Mr Brady's position do not necessarily have appropriate
insurance in place.
It seems unlikely that Mrs Welsh will appeal to the House of
Lords. Hopefully therefore that is the end of this sorry tail.
Contributed by Duncan Batchelor