Holiday park worker who injured back walking employer’s dog not entitled to personal injury damages

About this case:

• Citation:
  [2023] SC EDIN 12
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Douglas Keir

Donna Slater, aged 58, argued that her employer at Trossachs Holiday Park, Tracy Ann McNelis, owed her a duty not to subject her to unnecessary risk of injury that had been breached by allowing her to walk the dog. Quantum was agreed at £345,890 in the event of full liability.

The case was heard by Sheriff Douglas Keir in the All-Scotland Personal Injury Court. Christine, advocate, appeared for the pursuer and Thomson, solicitor advocate, for the defender.

Course of employment

The pursuer was employed by the defender and her business partner, John Wrigley (now deceased), as a warden and housekeeper at the park. Mr Wrigley owned a female Doberman Pinscher called Khaleesi, whom he brought to the park with him and would often be in the office. On 20 July 2018, the pursuer finished work and decided to take Khaleesi for a walk. Mr Wrigley was not in the office when this happened and she had not asked him for permission to do so.

After taking Khaleesi out to a nearby dog exercise area, as she had done on a few previous occasions, a car occupied by two park guests stopped near her. While she was engaged in conversation with the occupants of the car, Khaleesi suddenly pulled away from the pursuer, which pulled her off her feet and caused her to land heavily on her back. Prior to that date, there had been no reported incidents of a similar nature involving Khaleesi, who was described as a friendly, strong, but overweight dog.

As a result of her fall, the pursuer sustained a wedge fracture to her T12 vertebra. She had not returned to work since the incident due to ongoing back pain and depressive symptoms. She had also suffered from a loss of pension rights and would require significant assistance from her husband in the future. Counsel for the pursuer submitted that she had walked Khaleesi in the course of her employment, as it was common for employees to walk her when Mr Wrigley was too busy to do it himself.

For the defender it was submitted that the pursuer had taken it upon herself to walk Khaleesi and had not been acting in the course of her employment. While no risk assessment had been carried out, the overwhelming majority of evidence about Khaleesi’s disposition did not suggest it was reasonably foreseeable that an accident of that type might occur. Had liability been established, the defence of violenti non fit iniuria was available on the basis that the pursuer had consented to risk of injury by taking her for a walk.

Voluntarily agreed

In his decision, Sheriff Keir said of the pursuer’s evidence: “The pursuer was clearly nervous when she gave evidence. This was no doubt due in part to the court experience as well as the ongoing symptoms of the serious injuries she sustained as a result of the accident. However, there were a number of inconsistencies in her evidence which call into question her reliability on certain key matters. She was also defensive and dogmatic at times and reluctant to make concessions.”

He continued: “During examination in chief, the pursuer stated that she did not know why Khaleesi had bolted. In cross-examination, she accepted that she had been engaged in a conversation with the occupants of the car before Khaleesi bolted but maintained that she did know why the dog reacted. Both accounts were at odds with her earlier statement. Against this inconsistent and unsatisfactory background, I have concluded that I am unable to rely on the pursuer’s evidence except where it is supported by other evidence that I have found to be credible and reliable.”

Assessing liability for the accident, the sheriff said: “Khaleesi was one of a number of dogs present at the Park owned by those working there. [Other employees] all spoke to walking either Khaleesi or John Wrigley’s previous Doberman at the Park. They had all voluntarily agreed to walk those dogs. None of them supported the suggestion that John Wrigley had instructed them to do so. None of them viewed walking the dogs as forming part of their employment duties. All had enjoyed walking the dogs as they either owned their own dogs or enjoyed the company of dogs.”

He concluded: “The pursuer’s case is predicated on her proving that she had been instructed to walk Khaleesi on the day of the accident, a request that she felt unable to refuse standing the employer/employee relationship. The pursuer has failed to do so. Accordingly, it follows that the pursuer has failed to prove on the balance of probabilities that she was acting in the course of her employment when the accident happened.”

Decree of absolvitor was therefore pronounced in favour of the defender.