Dog Bite Claims: Strict Liability And Willing Acceptance Of Risk

Recent data shows that dog bites have doubled since the Covid-19 pandemic and accordingly, personal injury claims involving them are becoming more prevalent.

The Animals (Scotland) Act 1987 imposes strict liability on a keeper whose dog causes injury by biting, savaging, attacking, or harrying.

However, Section 2(1)(b) of the Act provides a defence where the injured person willingly accepts the risk of injury. The Court has held the wording of section 2(1)(b) involves the willing acceptance of a risk of being injured by biting, savaging, attacking, or harrying.

The recent case of Heskin v Reynolds & Mackerron considered this question in unusual circumstances. The dog in question was a border collie called Mac who was purchased during the pandemic. In 2021, Mac’s owners instructed the pursuer who was an experienced dog trainer and breeder to help them. Mac’s behaviour was described as “Jekyll and Hyde,” and he would suddenly and without warning become ferocious and aggressive. Mac had bitten his owners on multiple occasions and was considered a risk to his owners and their grandson. The pursuer was provided with video footage of Mac’s behaviour, and photographs of previous bite injuries. During an assessment with the pursuer in August 2021, Mac bit the pursuer to his injury which led to the case being raised.

The Court held that by the point at which Mac bit the pursuer, he had witnessed the level of aggression Mac was capable of. In particular, the pursuer had witnessed Mac bite his owner on two occasions. It was held the pursuer had been provided with enough information by Mac’s owners to appreciate the risk. In choosing to continue with the assessment, the pursuer accepted that Mac may cause him injury. Accordingly, it was held that the defence under section 2(1)(b) applied and the defenders were not liable for the injury sustained by the pursuer.

From a defender’s perspective this case highlights the importance of considering what knowledge a pursuer had regarding the behaviour and personality of a dog at the time of the incident. It indicates that those dealing with dogs professionally may find it more difficult to prove there was no willing acceptance of risk prior to the injury, particularly where they know the dog.

BTO’s personal injury litigation team are well placed to defend claims of this type and is available to provide advice and representation. If you have any queries arising from this article, please contact Hannah in the first instance.

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