The pursuer, an experienced dog trainer, was bitten whilst assessing whether a young Collie named Mac, who had a history of aggressive behaviour, was capable of being trained. Although strict liability under section 1(1) of the 1987 Act would ordinarily have been engaged, the defenders were exempted from this under s2 because the pursuer had willingly accepted the risk of being bitten.
Background
The defenders purchased Mac as a puppy in September 2020. Within a few months, he began displaying aggressive behaviour, including biting both defenders and baring his teeth at their infant grandson. The defenders sought assistance from a trainer, a behaviourist and a veterinary behaviour specialist. By April 2021, they were aware that Mac posed a significant risk in the home.
Their neighbours recommended that they contact the pursuer, as they had used him to train their own dog and thought he may be able to assist.
The assessment meeting
The pursuer, who had more than 50 years’ experience training dogs, agreed to meet the defenders and Mac at Aberlady on 26 August 2021. Before the meeting, he had been told that Mac was aggressive, had been described as “ferocious”, and had been sent photographs and videos showing aggressive behaviour. However, he said he had not seen the veterinary report, had not been told that Mac could not safely be around children, and had not been told about particular triggers or previous training attempts.
During the assessment, Mac bit the first defender while the pursuer was changing the type of lead that Mac was on. Mac later bit the first defender again and the pursuer provided the first defender with a bite glove. The pursuer continued with the assessment and, when Mac jumped towards his face, he raised his right arm to protect himself and was bitten on the hand. The pursuer punched Mac to release him and ended the training session. The pursuer attended hospital for treatment to his injured hand.
The pursuer raised an action for damages against the defenders for the injuries sustained.
The parties’ positions
The pursuer primarily relied on strict liability under section 1(1) of the 1987 Act. The defenders accepted that section 1(1) was engaged but argued that the statutory defence in section 2(1)(b) applied. They submitted that the pursuer was an experienced handler who knew Mac was aggressive and unpredictable, knew that he might be bitten and chose to proceed regardless.
The pursuer rebutted that the exception applied. He argued that he had not accepted the risk because he had not been told key information about Mac, including the content of the veterinary report and that Mac could not be around children. He said that if he'd known this, he would not have offered to meet Mac. The pursuer referred to English authorities and invited the court to adopt a two-stage approach that would require it to be established that he fully appreciated the specific risk that Mac posed and that he had then voluntarily exposed himself to that risk.
The pursuer included an alternative argument that the defenders owed him a common law duty of care to provide all relevant information relating to Mac, to avoid the risk of injury. The defenders again accepted that they owed a duty of care to the pursuer but argued that the information they had provided to the pursuer was sufficient to discharge that duty.
Assessment and decision
In his determination, the Sheriff commented that there were difficulties with the veracity of some of the assertions made by the defenders about the events that occurred during the assessment meeting. However, he did not require to resolve every factual dispute about the handling of Mac.
Regarding the test to be applied to assess voluntary acceptance of risk, the Sheriff observed the different statutory context within the English authorities. Under the 1987 Act, strict liability applied for injury caused by certain animals, which included dogs. This was a different starting point from the English legislation. A particular type of behaviour or characteristic did not need to be proved in Scotland for liability to be established. The s2 exception regarding willingly accepting the risk of injury should be read in this general context.
On the facts, the Sheriff held that the pursuer knew Mac was aggressive, unpredictable and likely to bite. He was a highly experienced trainer, had been bitten by dogs before and accepted that the possibility of being bitten did not faze him. He had therefore made a conscious and informed decision to proceed despite the risk. In any event, even if the risk had not been accepted at the outset of the training, it had plainly been accepted after he witnessed Mac biting the first defender during the assessment. The pursuer could have stopped at that point but chose to continue. The section 2(1)(b) exception therefore applied and the defenders were not liable to the pursuer under the 1987 Act.
The pursuer's common law case also failed. The pursuer had not led any evidence about what further information a dog trainer ought to have been provided with. It was accepted that the defenders owed a duty of care but the Sheriff was persuaded that the defenders had provided sufficient information for the pursuer to appreciate the risk.
Conclusion
This is a useful Scottish decision on when the exemption under section 2(1)(b) of the 1987 Act might be invoked. This decision highlights that an experienced person's awareness of an animal's aggressive nature and tendency to bite is likely sufficient to establish that they have accepted the risk of injury that may arise. It is not a requirement for that person to know every detail of the animal's history or every possible trigger of that behaviour.
The decision does not give dog owners licence to withhold important information. The focus remains on the substance of the risk accepted. Here, the relevant risk was biting and the pursuer knew enough about that risk and had seen enough during the assessment to be treated as having willingly accepted it. Each case will turn on its own facts and circumstances, but similar cases may, amongst other things, turn on the level of knowledge and experience held by the person who has suffered injury, as well as the conduct of the pursuer and defender(s) in the events directly leading up to the injury.
