Case comment on Donna Slater v. Tracy Ann McNelis [2023]

Slater v McNelis is an employers' liability case which proceeded in the All-Scotland Sheriff Personal Injury Court. The pursuer, who was a former employee of the defender, sustained significant injuries to her back on 20 July 2018 whilst walking a Doberman Pinscher called Khaleesi. Quantum was agreed in the sum of £345,890 inclusive of interest to 31 January 2023, and the proof was restricted to liability only.

The defender, Tracy McNelis, was one of two partners in the partnership trading as "Trossachs Holiday Park". The other partner was John Wrigley who died on 3 May 2021. It is the alleged actions of John Wrigley that were the subject of the action.

The pursuer claimed that she was walking Khaleesi during the course of her employment, and as such, the defender owed to her a duty to take reasonable care of her safety, and to not subject her to unnecessary risk of injury.

The circumstances and available evidence

The Pursuer gave evidence that she was employed as a warden and housekeeper on the holiday park by the partnership. She lived on the park with her husband, who was also employed by the park. The pursuer asserted that Khaleesi was a guard dog. She stated that John Wrigley never walked the dog, that another employee, Martin Scobie, was responsible for walking her. However, every member of staff had walked her at some point. She asserted that Khaleesi was a friendly, strong, overweight dog who was very nervous and frequently got spooked. She asserted that she had attended the park office on 20 July 2018 after finishing her shift early where she was instructed to walk Khaleesi by John Wrigley. She said that he had handed Khaleesi's lead to her. She stated she could not refuse this request as it was a request from her employer, and that walking the dog was a duty of her employment.

It was the defender's position that the pursuer had not been asked to walk Khaleesi, that she had taken it upon herself to walk her, and that she was not acting in the course of her employment when the accident occurred. It was their primary position that they were not liable for the accident. They argued that even if she had been acting in the course of her duties when walking the dog, there was no breach of their duty of care to her as Khaleesi was a friendly dog. They asserted that there was limited evidence of her nervous disposition, there was an absence of evidence that she constantly strained her lead when being walked, and no evidence had been given on what had caused her to pull away from the pursuer. They argued that there was no evidence that any of Khaleesi's traits had caused her to pull away.

Since the accident, Khaleesi had died and was not available for assessment.

The sheriff found the pursuer to be an unreliable witness. There were a number of inconsistencies in her evidence relating to key matters. She gave the impression that John Wrigley was an authoritarian employer, which was at odds with the evidence of the other witnesses, who described a pet-friendly working environment at the park. The other witnesses described Khaleesi as a family pet, not a guard dog as asserted by the pursuer. The Defender's agent was also able to refer to inconsistent prior statements made by the pursuer relating to her disablement benefits application in which she provided an alternative explanation for Khaleesi pulling away.

The circumstances that the court found to be true were that on 20 July 2018, at around 1545 hours, the pursuer entered the office of the park after she had finished her shift. Grace Babcock was in the office and the pursuer advised her that she had finished work and, as it was a nice day, she would take Khaleesi for a walk. Khaleesi was a family pet. The pursuer did not ask John Wrigley for permission to take his dog for a walk. She was not instructed to take Khaleesi for a walk. The pursuer chose to walk Khaleesi of her own volition.

Decision on liability

The court had to decide:

  1. was walking Khaleesi part of the pursuer's employment duties?
  2. was the pursuer acting in the course of her employment when she walked Khaleesi on 20 July 2018?
  3. did the defender's failure to conduct a risk assessment on walking Khaleesi fail to result in a precaution being taken which would probably have avoided the injury?
  4. did the maxim volenti non fit injuria apply (a person who knowingly and voluntarily risks danger cannot recover for any resulting injury)?

The first two questions were answered in the negative. It was not a duty of the pursuer's employment, nor any other employee of the Park, to walk Khaleesi. The sheriff found that they had all voluntarily agreed to walk Khaleesi and that they had not been "instructed" to do so.

With regard to what amounted to a "suitable and sufficient risk assessment", the sheriff observed that this would vary depending upon the accident circumstances. He was satisfied that Khaleesi was a good-natured and friendly dog. He concluded on the evidence that as she had a tendency to pull, the collar used to take her for a walk, a Halti collar, may have been recommended by a risk assessment. He did not consider there to be sufficient reliable evidence to support any additional measures being required, such as a ban on employees of a smaller physical stature from walking her. He concluded that, even if there was a failure to conduct a suitable and sufficient risk assessment, the pursuer had not proved on the balance of probabilities that such a risk assessment would have resulted in a precaution being taken that would have probably avoided the injury. The pursuer therefore failed to establish any breach of duty on the part of the defender arising from her failure to conduct a suitable and sufficient risk assessment.

In relation to the maxim volenti non fit injuria, the sheriff found that it had no application here.

Decree of absolvitor was granted in favour of the defender.

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