PIBULJ Articles

The Animals Act claims another judicial victim

Clark v Bowlt [2006] EWCA Civ 978

The Animals Act 1971 has a well-deserved reputation as one of the less coherent drafted statutes in the personal injury world. The House of Lords attempted to clear up confusion in Mirvahedy v Henley [2003] 2 AC 491, but claims brought under the Act are still not the easiest to understand. The Lord Chief Justice himself said in this case that “in the rather difficult area of the law the judge has got into a muddle”. At the risk of increasing confusion still further, this note will attempt to point out the trap that the judge fell into, and how it should be avoided in future.

The facts

C was driving along the road, approaching a junction. C saw two horses being ridden on the narrow grass verge on his near side, heading in the same direction as he was. One of them was called Chance (not “Foreseeable Risk”, alas…), being ridden by D. C slowed to 15mph or less and moved more towards the centre of the road. As C was about to pass Chance, the horse moved off the verge and into the road. D could not control the horse and the horse hit the front side of C’s car. C sued in negligence and under the Act, and D counter-claimed in negligence.

The trial judge found that neither party had been negligent but ruled that C’s claim under the Animals Act succeeded. The Court of Appeal allowed D’s appeal against the Animals Act claim. There was no appeal or cross-appeal on negligence.

The basis of the Animals Act claim

As horses are not a dangerous species, C had to establish the three following factors (s.2(2) of the Act as interpreted by the majority in Mirvahedy):

1. The damage caused by Chance was of a kind that it was likely to cause unless restrained, or which was likely to be severe if caused by the horse;

2. Either that:

   • This damage was likely, or likely to be severe, because of characteristics not normally found in horses; or

   • This damage was likely or likely to be severe because of characteristics of horses at a particular time or in particular circumstances, even though such damage was not likely or likely to be severe because of the characteristics of horses in normal circumstances;

3. These characteristics were known to Chance’s keeper (D) (which does not appear to have been an issue between the parties).

As to s.2(2)(a), the judge said that if Chance caused damage, it was likely to be severe given that she was 600lbs and was in close proximity to cars on an A road with a 60mph limit. As to s.2(2)(b), he said that horses generally follow the direction of their rider, as Chance usually did, but in particular times and in particular circumstances, horses generally can (as Chance did) assert an inclination to move otherwise than as directed. This was the relevant characteristic which could and did lead Chance to move near to a moving car, and one which only arose at particular times and in particular circumstances. This caused the accident, and so he awarded damages.

The judge’s muddle

The Court of Appeal said that the judge had not answered the first limb of s.2(2)(a), namely whether the damage caused by Chance was damage that she was likely to cause unless restrained. He had only answered the second limb of s.2(2)(a), namely if Chance caused damage it was likely to be severe, given the weight of the horse.

However, in finding that s.2(2)(a) was satisfied solely because of the weight of the horse, the judge then had to explain why the horse’s weight was either an abnormal characteristic within the first alternative of s.2(2)(b) or a characteristic found in horses only in particular times or particular circumstances within the second alternative of s.2(2)(b). Clearly this would not be possible: the horse was not abnormally heavy, nor do horses’ weights vary according to times or circumstances. The Court of Appeal compared the situation to an example given by Lord Nicholls in Mirvahedy, when he said that if a large and heavy animal such as a cow happens to stumble and fall on someone, there is a real risk that any damage suffered would be severe, satisfying s.2(2)(a), but that the weight of the cow would not fall within s.2(2)(b) since such dangerousness is due to a characteristic found in all cows at all times, not one that was not normally found in cows except at particular times or in particular circumstances. The trial judge had fallen into the trap of identifying one characteristic for the purpose of s.2(2)(a) and a different one for s.2(2)(b). As Sedley LJ said in agreeing with Lord Phillips LCJ, the successful finding that the horse’s weight brought the case within s.2(2)(a) was C’s undoing under s.2(2)(b).

So, could C persuade the Court of Appeal to uphold the judge’s decision under s.2(2)(b) about Chance having a “characteristic” to move otherwise than directed, and also to substitute a suitable finding under the first limb of s.2(2)(a)? No and no. In the first place, the Court of Appeal doubted that a propensity to move otherwise than directed on occasions could be described as a “characteristic”; furthermore, the judge had not explained the particular times or particular circumstances when this characteristic manifested itself and had come close to accepting that it was a normal characteristic of horses (which would exclude it from s.2(2)(b) altogether). In addition, such a “characteristic” was not relevant to the question under s.2(2)(a) of whether damage if caused was likely to be severe, but only to the question of the damage caused was damage that Chance was likely to cause unless restrained.

On that point, Chance was only likely to cause damage of the kind she did if given a severe fright, which she was not. On the judge’s findings, Chance was not likely to cause the damage she in fact caused by moving into collision with C’s car. The evidence was that this was an untoward and unlikely mishap. Chance was not likely to move into C’s path. C’s case failed at the first hurdle and, it seems, at the second too.

Conclusion

The lack of clarity in the wording of the Act was mirrored by a lack of proper analysis from the judge. The trap into which he fell (or, more probably, was led) was to fail to appreciate that there has to be a link between the answer to s.2(2)(a) and that to s.2(2)(b), otherwise the claim fails. Sedley LJ said that, if C’s arguments were right, there would be few if any cases of damage caused by a non-domestic animal which did not render the keeper liable, which was the reverse of the situation intended by the Act. Section 2(2) was not, he said, intended to render keepers of domestic animals routinely liable for damage which results from characteristics common to the species, but only where there was something particular. Whilst there is strict liability for damage caused by non-dangerous animals once inside the scope of the wording of the Act, the trick for claimants is to get inside the wording in the first place – and to do so in a way that will withstand an appeal.