Taking employer’s liability for a walk…
Slater v McNelis [28.03.23]
This case review was co-authored by Eleanor Shaw, Trainee Solicitor, Edinburgh.
The pursuer was employed at the defender’s Holiday Park at the time of her accident on 20 July 2018. The Park was operated by two partners, one being John Wrigley (now deceased) who had primary responsibility over the holiday park. He owned a Doberman called Khaleesi. She was described sympathetically as a “friendly, strong, overweight dog”.
Khaleesi often accompanied Mr Wrigley to the holiday park on weekdays, spending her time in the park’s office. On 20 July 2018, the pursuer attended the office and took Khaleesi out for a walk at a nearby dog park, as she had on two previous occasions. The dog was wearing a “Halti” collar as she was known to pull and could be easily spooked.
At the dog park, the pursuer stopped to converse with the occupants of a stationary car. Khaleesi suddenly bolted, causing the pursuer to fall onto her back and sustain a wedge fracture to her T12 vertebra.
As a result of the incident, the pursuer suffered ongoing significant back pain and depressive symptoms. She did not return to her employment, had a restricted ability to undertake paid employment, and her husband required to become her full-time carer.
The pursuer raised an action in the All-Scotland Sheriff Personal Injury Court. Quantum was agreed at £345,890 if full liability was established.
The pursuer gave evidence that she had taken Khaleesi for a walk previously, as had other colleagues and she described Khaleesi as the park’s guard dog. It was therefore submitted this amounted to the dog walking being undertaken in the course of her employment.
The defender, on the other hand, submitted that the pursuer voluntarily walked the dog and as such, this did not fall within the scope of her employment duties. In any event, there had been no previous incidents with Khaleesi prior to the index accident, and it was not reasonably foreseeable that such as incident might occur given her generally good nature. An alternative argument of violenti non fit iniuria was proposed; in short, that the pursuer consented to the risks.
The sheriff concluded that liability could not be established as any walking of Khaleesi, or the other dogs present at the park by employees was undertaken voluntarily and crucially, not on the instruction of Mr Wrigley.
It was held that the pursuer had failed to prove she was instructed by her employer to walk Khaleesi and accordingly, the case failed.
The notion of what falls within the scope of employment was considered by the court. It is important for employers to be mindful when giving instructions that there is a risk of a duty of care being created. In this instance, given the nature of the task and absence of direct instructions led to the court concluding that no duty had been in the circumstances.