Scottish Court of Session Decisions

Daniel M'Donald, Motherwell, raised an action in the Sheriff Court at Hamilton against James Smellie junior, contractor there, craving decree for £250 as damages for the death of his son Thomas M'Donald, a child of four years, who was bitten by the defender's dog on 13th March and died on 1st April 1902.

The pursuer averred (Cond. 2) that the child died from shock on the date mentioned in consequence of the injuries received, and (Cond. 7 and 8) specified two occasions on which the dog had previously bitten children to the knowledge of the defender.

The pursuer pleaded—“The pursuer's child having been killed by a dog which belonged to the defender, and which was known to him to be of a savage nature or of a vicious disposition, he is entitled to compensation.”

The defender pleaded—“(1) The pursuer's child not having been killed by defender's dog as condescended on, the defender is entitled to absolvitor with expenses. (2) The defender's dog never having previously exhibited any vicious propensity, and the defender having, in any event, no information of such vice she is entitled to absolvitor with expenses.”

Proof was led before the Sheriff-Substitute ( Davidson), and disclosed the following facts:—On Halloween 1901 the dog, then about a year old, snapped at and made a blue mark on the leg of a boy Marshall, eleven years of age, who was entering the defender's yard as a “guyser,” with blackened face and a wooden sword. In November 1901 the dog bit a boy Macmillan, four years of age, on the nose so that it bled. The defender denied knowledge of either of these attacks; but the father of the boy Macmillan deponed that he had spoken to the defender about the accident to his son, and that the latter had told him he would rather lose £5 than part with the dog. On the present occasion the dog bit the pursuer's son on the ear while he was stooping to pick up his cap.

John Fotheringham, M.B., &c., the medical man who attended the boy, deponed:—“It was a bad bite, but not of itself dangerous. Cerebral meningitis supervened on that. (Q) Was that brought on or aggravated by the bite?—(A) It is difficult to say if that were so. I cannot dogmatically say that the one was the effect of the other. I think if he had not suffered from the bite he would not have died. The wound brought on meningitis in the child, who had a tendency thereto. The inflammatory condition of the head may have brought on the disease.” There was no other medical evidence.

The defender led evidence to show that the dog was not a vicious animal, and was accustomed to play with children.

On 5th November 1902 the Sheriff-Substitute issued an interlocutor whereby he found that it did not appear from the evidence that the child died from the result of shock caused by the bite of the dog, and therefore assoilzied the defender.

The pursuer appealed to the Sheriff ( Guthrie) who on 21st April issued the following interlocutor:—“Opens up the record and allows the pursuer to amend article 2 of his condescendence, by adding the words ‘or cerebral meningitis' between the words ‘shock’ and ‘on,’ and that being done of new closes the record: Finds no expenses due in respect of the amendment: Recals the judgment appealed against: Finds that on 13th March 1902, in Merry Street, Motherwell, the pursuer's son Thomas, three years of age, was bitten on the ear by a collie dog belonging to the defender: Finds that it was known to the defender that the dog had bitten children on two occasions before said date, namely, a child named M'Millan and a boy named Marshall: Therefore finds the defender liable in damages to the pursuer: Assesses the damage at £15 sterling, for which decerns.”

Note.—“I have allowed the pursuer to amend, although it is not quite clear that amendment is necessary. The condescendence certainly avers that the child's death was due to the shock caused by the bite, while the evidence of the only medical witness negatives that idea, and ascribes the death to acute meningitis supervening on the bite. Sheriff Davidson has dealt with the case apparently on the footing that death from the shock is alone averred and has not been proved. I think, however, that it is right to look at the medical evidence as a whole, and that the defender cannot object, and is not unfairly treated in being held liable when the death turns out to be due to another proximate cause, which is also a direct consequence of the bite. According to the pursuer's evidence the child would not have died but for the bite, and the bite set up the disease which resulted in death. The defender might have asked for an adjournment if he was taken unawares by having meningitis suddenly disclosed to be the disease of which the child died. But he ought not to have been surprised, and no doubt was not taken by surprise, for that disease was the certified cause of death, and he at least ought to have seen the extract from the register of deaths before the trial. I am of opinion, therefore, that there is no reason why the medical evidence, which distinctly traces the child's death to meningitis occasioned by the bite of the

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dog, should be ignored, because the condescendence avers shock and says nothing of meningitis. Nor, I think, does it make a material difference that the child was predisposed to meningitis. It would involve the courts in endless inquiries and infinite subtleties and difficulties if they had to consider the varying measure of personal health or strength at the time of persons injured by a collision, an assault, or a breakdown, in order to apportion the precise liability of the defender, to whose fault such an accident is due.”

The defender appealed, and argued—The judgment of the Sheriff was bad on two grounds—(1) The pursuer had failed to prove fault on the part of the defender. In order to prove fault the pursuer required to show (a) that the dog was a vicious animal, and ( b) that it was known to the defender to be vicious— Clark v. Armstrong, July 11, 1862, 24 D. 1315, opinion of Lord Justice-Clerk Inglis, 1320. The pursuer had failed to establish either the one or the other. The evidence clearly showed that the dog was free from all vice. It possibly snapped now and then when at play, as all young dogs did. (2) The death was not the result of the bite. The child was predisposed to meningitis, and if he had not had this tendency no harm would have been caused by the bite.

Counsel for the pursuer and respondent were not called upon.