Strict liability, where the dog owner is automatically found liable if the attack occurs is imposed under the Animals (Scotland) Act 1987. The injury caused by the bite was serious and permanent. However, there was also evidence that Ms Ferguson had been drinking prior to the incident and had behaved irresponsibly by putting her face close to the dog's mouth before she was bitten.
A jury awarded £5,000 but found her 85% to blame for the incident. This reduced the award to £907.50. Ms Ferguson appealed in the hope of securing a new trial with a more sympathetic jury.
The claimant's fault
Ms Ferguson argued that the award of £5,000 was too low, that the jury's finding of contributory negligence of 85% was unsupported by the evidence and was so excessive that no reasonable jury could have made such an assessment.
The court disagreed. It held that the jury was entitled to conclude that she had behaved in a manner likely to provoke the dog. In terms of the exact proportion of blame, the court found it "not surprising" that the jury considered the responsibility for the incident lay mainly with Ms Ferguson. The court saw no ground for interfering with the level of fault attributed to her.
The amount of compensation
A party who is dissatisfied with the verdict of a jury may apply for a new trial on the ground of an excessively high or inadequately low award. It was argued by Ms Ferguson that £5,000 was too low.The court accepted that a judge would likely have awarded in excess of £10,000. The court accepted that the award was less than 50% of what a judge might have awarded and that as an "arithmetical fraction", the jury's award fell a little outside of the leeway allowed, which is around 50% of what a judge might have awarded. However, the court made clear that there is no arithmetical formula in these sorts of cases and that there needed to be gross injustice before a new trial would be ordered, which was absent in this case. The appeal was refused.
It is clear from Ferguson v Ferguson that an appeal court will not easily overturn a jury decision. This makes sense. A party will often choose a jury for strategic reasons. Juries often make higher awards than judges but, as this case shows, this can also work in the opposite direction, particularly if the claimant appears to be at fault.