Most cases are brought under the Animals (Scotland) Act 1987 which provides that strict liability will apply. This means that the defender will require to pay compensation without the pursuer having to prove negligence.
Who is liable?
The claim should be made against the keeper of the animal. This is either the owner or person in possession of the animal or, where the animal is owned by a child under 16, the person who has care or control of that child. If an animal escapes or is abandoned, ownership or possession continues until someone else becomes the new owner.
Under the Act, the mere fact that an animal is present on a road or in another place does not give rise to strict liability. The Court has previously held that whilst there is a duty on an owner or occupier of a field adjoining a highway to ensure horses or other animals do not cause damage, there is no duty to put up fences on land which is not normally fenced, or to be responsible for unauthorised people opening gates and allowing animals to escape.
Man's best friend?
Dogs are deemed to be dangerous animals under the Act. Therefore, if you are bitten by a dog, the keeper will be liable regardless of whether it was the first time the dog had bitten anyone or had previously displayed violent tendencies. In a recent case, a dog walker was unsuccessful in recovering compensation from another dog walker, the owner of a Labrador who knocked her over, injuring her knee. Both dog walkers had been walking with their dogs off the lead when the Labrador ran at the claimant. No biting was involved. The Court held in the circumstances that strict liability did not apply and clarified that strict liability would only apply to cases involving "biting, savaging, attacking or harrying". If the injury is caused in another way, the owner is only liable if the breed of dog is likely to be deemed dangerous, which a Labrador was not. Therefore, to be successful in a claim after falling or being knocked over by a dog, you would need to prove that the dog was likely to be dangerous and the owner had been negligent.
Sharing the blame
While liability is strict, the Court may make a deduction to any compensation awarded to take account of contributory negligence. In one case, a pursuer had her award reduced by 85% to take account of the fact that she put her face close to dog whilst pulling the hairs on his face.
There are exceptions to strict liability:-
- If the injury was the fault of the injured person;
- If the injured person knew of and accepted the risk; or
- If the injury happened on land where the person was not entitled to be.
An example of an injured person knowing and accepting the risk would be if someone trespassed onto land where they knew there was a guard dog and was subsequently bitten. In order to be successful in this defence, it is necessary to show that the injured person fully appreciated the risk and still exposed themselves to it.
There are a number of examples of horse riding cases where this defence has been put forward successfully. The outcome of the case depends upon whether the horse rider - who was injured when being thrown from the horse - knew the horse was likely to buck.