RISK ASSESSMENT SYSTEMS EMERGENCY RESPONSE Safety Licence Policy - PowerPoint PPT Presentation

Dogs bite. (its their job sometimes) Applying the principles of prevention to somebody who probably wont read them. We plan, scan, and adapt...

RISK ASSESSMENT SYSTEMS EMERGENCY RESPONSE Safety Licence Policy and Investigate Work / review Instructions Valid Stop PLAN ADAPT SCAN

John the Meter reader The solution completely depends on behaviour…………

Overall • Have a clear system • Ensure the system is realistically going to be followed by the actual people involved • Train, train, train, train, train • Provide the ‘fire extinguisher’ solutions for the times when despite your controls it still goes wrong • Don’t let it lie, review, refresh and constantly monitor.

Dog Bites!  Michael Collins, Associate and Solicitor Advocate  Rhona McKerracher, Senior Solicitor 26 September 2019 www.bto.co.uk

Topics  Who can be liable from the civil perspective?  Case Law  Measures to protect your business www.bto.co.uk

Dog Bites!  Who gets the blame? www.bto.co.uk

Liability of the dog’s owner / keeper  Common law liability?  Duty of care  Breach of duty: negligence, foreseeability www.bto.co.uk

Strict Liability  Liability without proof of negligence – the bite itself is enough  Animals (Scotland) Act 1987  Creates strict liability for injury or damage caused by animals in certain circumstances  Liability attaches to the “keeper of the animal” www.bto.co.uk

The keeper Who is the keeper?  Person who “owns the animal or has possession of it” at the  time of the incident Person who has “actual care and control of a child under the  age of 16 who owns the animal or has possession of it” Person who owns or has possession will, if the animal has  been abandoned or escaped, still be deemed to have possession and therefore be keeper until another person acquires ownership or comes into possession Exception for certain type of possession:  Possession only by reason of detaining animal which has  stayed onto their land www.bto.co.uk

When is the keeper liable under the Animals (Scotland) Act?  Complicated(?) legal provisions in the Act:  “The animal belongs to a species whose members are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent; and  “the injury or damage complained of is directly referable to such physical attributes or habits” www.bto.co.uk

Simplifying matters Dog bites:  Covered by “deeming provisions”, i.e. they are deemed to be  likely to inure severely etc by  Biting  Savaging  Attacking  Harrying In short: in dog bite cases the keeper is liable under the Act, with  no need to prove any negligence on their part. www.bto.co.uk

Defences Full defence  The person sustaining injury “was not authorised (expressly  or by implication) or entitled to be on that land”  Trespass – doesn’t provide a defence against claims by legitimate visitors / tradesmen  Even if the visitor was “unauthorised”, injury by a guard dog will result in liability unless there was strict adherence to the Guard Dogs Act 1975 The person sustaining the injury “willingly accepted the risk”   Difficult to establish  Doesn’t normally apply where person runs the risk in the course of their employment The accident was “due wholly to the fault” of the injured  person www.bto.co.uk

Defences  Contributory Negligence  % deduction to the claim on the basis the injured person by their own negligence contributed to their injury www.bto.co.uk

Viable recovery target?  Pet insurance?  Funds to pay an award of damages? www.bto.co.uk

Viable recovery target? www.bto.co.uk

Viable recovery target?  The employer! www.bto.co.uk

Liability of the employer?  Duty of Care  Risk Assessment  Training  Safety Equipment  Warnings www.bto.co.uk

Camden v Jackpot Leisure Limited, [2015] 7 WLUK 421  Claimant was a snooker and pool table repairer  Sent by his employer to a domestic premises to re-felt a pool table www.bto.co.uk

Camden v Jackpot Leisure Limited, [2015] 7 WLUK 421  Claimant became aware of (illegal) dogs on the premises whilst on the property  Claimant required to go through a gated patio area where the dogs were in order to go back to his van to retrieve work tools  The owner opened the gate, which allowed the dog to rush through and attack the claimant  Employer knew about ‘some dogs’ on the property www.bto.co.uk

Camden v Jackpot Leisure Limited, [2015] 7 WLUK 421  Breach of duty established  Due to his knowledge, the employer should have made enquiries about the temperament of the dogs  If told that they were potentially aggressive, the employer should have instructed the owner to secure them away www.bto.co.uk

Camden v Jackpot Leisure Limited, [2015] 7 WLUK 421  Breach of duty established (cont.)  Employer should have told the claimant about the presence of the dogs and told him that he could insist that the dogs be locked away  Breach of duty was causative  Had the employer either insisted to the owner that the dogs be locked up, or told the claimant he could do so, the attack would not have happened. www.bto.co.uk

Camden v Jackpot Leisure Limited, [2015] 7 WLUK 421  Liability established against the employer  No deduction for contributory negligence. www.bto.co.uk

Camden v Jackpot Leisure Limited, [2015] 7 WLUK 421  Case turns on its own facts and circumstances  Knowledge of the employer was key www.bto.co.uk

Would the case be followed in Scotland? www.bto.co.uk

Kennedy v Cordia, [2016] UKSC 6  Claimant was a care worker  Visiting a terminally ill housebound patient  Slipped on snow and ice on a pathway leading to the patient’s wrist  Expert considered that Cordia had not adequately assessed the risk, nor had the provided her with the correct work equipment www.bto.co.uk

Kennedy v Cordia, [2016] UKSC 6  Supreme Court found that:  It was wrong to compare Ms Kennedy to an ordinary member of the public  Ms Kennedy, as part of her employment, had to travel on the untreated footpath in order to reach the patients’ door  A reasonably prudent employer would have carried out a risk assessment  Evidence that the PPE, if provided, would have been used and therefore the failure to provide PPE was causative www.bto.co.uk

Hill v Lovett  Vet receptionist given permission to enter a private garden belonging to her employer for the purposes of cleaning the surgery’s windows  Whilst then, bitten on the leg by one of two dogs, who belonged to her employer  Sued at common law and under Occupiers’ Liability (Scotland) Act 1960  Dogs were known to be by the owners to be territorial over the garden www.bto.co.uk

Practical measures to protect your business from the case law  Enquire whether dogs are on the premises, what kind of dogs they are and their general temperament  Keep your employee informed  Inform the customer that the dog should be locked away  Train (and re-train!) your staff on what to do if confronted with an aggressive dog  PPE www.bto.co.uk

Dog Bites! www.bto.co.uk

Dog Bites!  Michael Collins, Associate and Solicitor Advocate  Rhona McKerracher, Senior Solicitor 26 September 2019 www.bto.co.uk