ANIMAL—ANIMAL NOT BELONGING TO DANGEROUS SPECIES—STRICT LIABILITY

Court of Appeal, Civil Division
Dyson, Thomas and Richards LJJ
27 July 2007

For the purposes of the strict liability provision in s 2(2)(b) of the Animals Act 1971 (AA 1971), if a characteristic of an animal is usual, then it will certainly be “normal”. 

Susan Rodway QC (instructed by Messrs Beachcroft LLP) for the claimant.
Richard Stead (instructed by Messrs Lyons Davidson) for the defendants.
In July 2001, the claimant, then aged 17, was riding a nine-year-old horse named Ivor on a road in Cornwall.  She fell off the horse and suffered a serious head injury.  She had been working as a trainee in the defendants’ yard since October 2000. Ivor was considered a “sensible” horse with no history of misbehaviour or vice of any kind, and the claimant was considered competent to ride a sensible horse on her own. 

The claimant issued proceedings against the defendants in negligence. Further and in the alternative, she alleged that the defendants were strictly liable to her pursuant to the Animals Act 1971, s 2(2). The issue of liability was tried first.  The judge dismissed the claim in negligence, but upheld the claim for strict liability. The defendants appealed. The issues included whether or not the judge had correctly applied  AA 1971, s 2(2). 

LORD JUSTICE DYSON:

AA 1971, s 2(2) provided, so far as material: “Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if…b) the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances: and (c) those characteristics were known to that keeper.”

The judge correctly directed himself that all three conditions in s 2(2) had to be proved before strict liability could be established. As to the first limb of sub-s (2)(a), he found that the damage was not of a kind which, unless restrained, Ivor was likely to cause.

As to the second limb of sub-s (2)(a), he said: “...The starting point here is the accident itself. In other words, Ivor rearing up and causing the claimant to fall off onto the road. In my judgment, this requirement is satisfied here, because personal injury arising from such an accident is likely to be severe…Thus, I find the second part of requirement (a) is satisfied.”
In relation to sub-s (2)(b), the judge said that “the defendants, as experienced keepers of horses, would have known that Ivor, like any horse of his kind, was capable of rearing in certain situations if not handled properly.”
As to sub-s 2(c), he stated: “… Anyone who has any reasonable experience of horses knows perfectly well that they are unpredictable animals with minds of their own and, however good they usually are, they are quite capable of behaving in an unpredictable way, especially if they are being ridden by someone who lacks the necessary skills to handle a crisis situation. It follows that I find (c) met as well.”

The defendants did not challenge the finding that the damage was of a kind which, if caused by Ivor, was likely to be severe, namely that the second limb of sub-s (2)(a) was satisfied.

As to the requirements of s 2(2)(b), in his lordship’s view, the link between the likelihood of severe damage and the characteristic found by the judge was obvious. If a horse reared in the particular circumstances and the rider fell from the horse, she was likely to suffer severe damage. Once the judge found that the damage that was caused was likely to be severe and that Ivor had the characteristic of rearing, it was inevitable that he would find that the likelihood of the damage being severe was due to that characteristic.

“Normally”

He turned to the meaning of “normally” in
s 2(2)(b). It had been authoritatively explained by the House of Lords in Mirvahedy v Henley [2003] UKHL 16, [2003] 2 All ER 401. The claimant suffered injury when the car he was driving collided with the defendants’ horse which had panicked and escaped with others from its field. It was not clear what had frightened the horses. The house held by a majority of three to two that the defendants were liable under s 2(2).

To bolt was a characteristic of horses which was normal “in the particular circumstances”, those being some sort of fright or other external stimulus. The main issue concerned the true meaning of the second limb of sub-s (2)(b). The majority held that the fact that an animal’s behaviour, although not normal behaviour generally for animals of the species, was nevertheless normal behaviour for the species in the particular circumstances did not take the case outside s 2(2)(b).
The question of what was meant by normally was not in issue in Mirvahedy (or any other case). The core meaning of normal is “conforming to type”. If a characteristic of an animal was usual, then it would certainly be normal. The best evidence that a characteristic conformed to the type of animals of a species was that the characteristic was usually found in those animals.
There was nothing in the context of sub-s (2)(b) to suggest that Parliament did not intend normally to bear that core meaning. It was difficult to see why Parliament should have intended to exclude from the ambit of sub-s (2)(b) cases where the relevant characteristic was natural, although unusual, in the animal which had caused the damage. There was no need for such a narrow interpretation because a claim would not succeed unless the knowledge requirement in subsection (c) was also satisfied.

As to the knowledge requirement, his lordship went on to hold that a keeper’s knowledge that a horse had the characteristic of normally behaving in a certain way in particular circumstances could be established by showing that the keeper knew that horses as a species normally behaved in that way in those circumstances. In this case, the judge had been entitled to find that the defendants had had the requisite knowledge under s 2(2)(c).

The appeal would be dismissed.

Lords Justices Richards and Thomas agreed.