A dog was alleged to have injured one sheep and scared the rest of a flock by chasing it, and the question of law for the opinion of the Court of Session was, among others:
‘Is the second section of ‘The Dogs Act 1871,’ limited in its operation to dogs which are dangerous to human beings, and which are not kept under proper control?’
Lord Ormidale, having set out the facts and the question posed to the Court, said: ‘These questions involve very much the same thing, and in the present instance an answer either affirmative or negative to the first must also dispose of the second. Now, in regard to the limitation of the Act to dogs which are dangerous to human beings there is certainly nothing in it expressly to that effect. Neither am I satisfied, looking at the statute in all its clauses, that any such limitation was intended. The title of the Act is quite general, being simply ‘An Act to provide further protection against dogs;’ and the preamble is in the same terms. The second section, again, of the Act, being that on which the complaint is founded, provides ‘that any Court of summary jurisdiction may take cognisance of a complaint that a dog is dangerous and not kept under proper control; and if it appear that such dog is dangerous, the Court may make an order directing the dog to be kept by the owner under proper control, or destroyed, and that, failing compliance, he shall be liable to certain penalties. Now, it is not said here that the dog must be dangerous to human beings, although if that had been meant nothing could have been more simple or easier than to have so expressed the enactment. Nor can I find anything in the other sections of the Act indicative of the limitation of the second section to dogs dangerous to human beings.
But it is only with the second section of the Act we have to deal at present; and considering that it contains no expressed limitation of its operation to dogs dangerous to human beings, but that in the generality of its words it is fairly, and I think not unreasonably, applicable to dogs dangerous to sheep, and it may be to other property, as well as human beings, I am of opinion that the first question submitted in the case must be answered in the negative;…’
Lord Gifford concurred and the Lord Justice-Clerk said:
‘I felt at first considerable difficulty in this case, for I am not disposed that a dog can be said to be dangerous in the sense of this statute because he is liable to injure property. I am quite clear that ‘dangerous’ does not mean ‘mischievous’. But I have come to agree with your Lordships that this complaint is sufficiently relevant, and that there was no ground for refusing to proceed with the case. The quality of being dangerous relates not to the acts of the dog, but to his nature and disposition. The Sheriff is to be satisfied that he is savage, ferocious, or dangerous. This nature may be shewn and proved in a variety of ways; and although the mere act of chasing sheep may not of itself, or in all cases, indicate that a dog is dangerous, the nature of the animal may be shewn in that way as well as in others. The mistake in the questions put to us, as well as in the judgment, consists in supposing that ‘dangerous’ must be defined in relation to some object. It is not so. It is the savage nature of the animal of which the Sheriff is to be satisfied.’

Judges:

Lord Gifford

Citations:

[1876] SLR 13 – 393, [1876] 3 R page 623

Links:

Bailii

Statutes:

Dogs Act 1871

Jurisdiction:

Scotland

Animals

Updated: 02 February 2022; Ref: scu.576931