In early Autumn 2011, DEFRA announced that in the New Year it would be launching a consultation over possible reform of Section 2(2) of the Animals Act 1971.
To those who practise in the area of liability for animals, this news had more than a sense of deja vu about it. The last consultation took place only three years ago but no change to the Section was implemented. DEFRA is now trying again. The fairly short Section of the Animals Act 1971 which has caused so much argument and judicial disagreement reads as follows:
“Where any 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 –
- The damage is of a kind which the animal, unless restrained, was likely to cause, or which, if caused by the animal, was likely to be severe; and
- 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
- Those characteristics were known to that keeper…”
Section 5 provides various defences, including (2): “A person is not liable under s2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof”.
The purpose of the Section was to implement the recommendations of the Law Commission’s 1967 report and to impose strict liability for damage or injury caused by animals but only if the conditions at (a) (b) (c) in Section 2(2) were satisfied. In essence, the purpose was to make keepers of animals liable where the animal’s behaviour was predictable.
Over the next thirty years, a number of cases concerning the interpretation of Section 2(2) reached the Court of Appeal but it was not until Mirvahedy -v- Henley & Henley [2003] UKHL 61 that a case reached the House of Lords. The claimant car driver was injured when horses fled in panic from their field and onto a dual carriageway. The claimant succeeded but, contrary to popular perception, Mirvahedy did not create a general right to compensation: it established only that there was a second limb to (b), covering temporary characteristics which appeared only in identifiable circumstances. Over the next six years, a number of cases, including Clark -v- Bowlt [2006] EWCA Civ 978, McKenny -v- Foster [2008] EWCA Civ 173 and Freeman -v- Higher Park Farm [2008] EWCA Civ 1185 established that it was very difficult to establish all three parts of the Section. By 2009, it was clear that, in relation to the three subsections:
- Is a “likelihood” test with two limbs, the second covering situations where, even if the accident was unlikely, the injury or damage was likely to be severe where it did happen; and, in relation to both limbs, the characteristic of the animal under (b), in the circumstances of the accident, had to be the reason that the damage was likely to be severe
- Is a “characteristic” test with two limbs, the first covering situations where the animal has a dangerous propensity (such as a horse which always kicks) and the second covering situations where the (normal) animal exhibits a (dangerous) characteristic only in particular, identifiable, circumstances
- Is a “knowledge” test which is usually easily satisfied, in that keepers of animals are very likely to be deemed to be aware of their characteristics
Contrary to expectations, claims post-Mirvahedy were generally failing. The courts were applying the requirements of (a), (b) and (c) rigorously and most claims were found wanting.
Despite this, DEFRA started a consultation process in 2009 with a view to amending Section 2(2), on the premise that the meaning of the Section was so unclear that it was fuelling litigation and the fear of litigation and what was required was clarification. They proposed a new Section 2(2) (Section 2(2)(a) remaining unchanged) and the changes are shown in italics:
“2(2)
(b) the damage was due to an unusual or conditional characteristic of the animal; and
(c) that characteristic, in the case of an unusual characteristic, was known to that keeper or was at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper
is the head of a household, was known to another keeper of the animal who is a member of that household and under the age of sixteen
(3) A characteristic of an animal is unusual if it is not shared by animals of that species generally
(4) A characteristic of an animal is conditional if it is shared by animals of that species generally, but only in particular circumstances
(5) Sub-section (2):
(a) applies by virtue of a conditional characteristic only if the damage was caused in the particular circumstances (or one of them) by reference to which the characteristic is a conditional characteristic; and
(b) does not apply by virtue of a conditional characteristic if the keeper of the animal at the time when the damage was caused shows that there was no particular reason to expect that those circumstances would
arise at that time.”
The proposed change to the first line of (b) was welcome: changing “the likelihood of the damage or of its being severe” to “the damage” would have clarified the meaning. The rest of the changes would not, however, have really changed the meaning at all and the only real change was at the new Section 2(5)(b). This would have introduced a clear foreseeability test and, had the new wording been in place before Mirvahedy, it is likely that the Henleys would have been found not liable, as they would have been able to successfully argue that they had no reason to expect that the horses would have become terrified into fleeing in panic at the time they did. One might therefore have expected that this proposal would have been welcomed by animal keepers at least.
The proposals, however, met significant opposition during the consultation stage. Those representing personal injury victims were unhappy that the change would make it harder in many cases for victims to bring claims. Others felt that the proposed new wording was too convoluted and could give rise to even more litigation as the courts tried to interpret it. Others were concerned that the new foreseeability test reduced Section 2(2) to no more than a negligence test, rendering it pointless. To others, it appeared that the proposal took little account of case law since Mirvahedy (the consultation document referred only to the McKenny case) which had already significantly restricted the number of claims which succeeded – in effect, achieving what the proposed amendment was intended to achieve.
The result was that no agreement could be achieved on reform. By early 2010, the general election was approaching, the economic situation dire and reform was quickly abandoned. Questions to DEFRA about possible reform met with the response “Ministers have more pressing concerns at present”!
Now, however, we have a further DEFRA consultation on possible reform. This time, DEFRA have not proposed any particular amendment and have simply asked for suggested amendments. So, what developments have taken place in the courts since the 2009 consultation and do we have any reason to think that any consensus over reform can now be achieved?
There have been three recent important decisions: Sally Bodey -v- Gillian Hall [2011] EWHC 2162 QB, Kara Goldsmith -v- Robert Bradley Patchcott [2012] EWCA Civ 183 and Turnbull -v- Warrener.
In the first of these cases, the claimant, Mrs Bodey, was an experienced horsewoman, as was the defendant, Mrs Hall. Both also had experience of riding in a pony and trap. Mrs Hall had a pony and trap and Mrs Bodey had, by the time of the accident, ridden with her as a groom on several occasions, pulled by Mrs Hall’s horse, “Pepper”, a horse which Mrs Bodey had herself looked after in the past. On the day of the accident, they rode down a lane, before turning off on to a track. Shortly afterwards, “Pepper” shot forward, apparently in panic at something, although it was never discovered what. There was no evidence that the horse had ever behaved like this before.
The trap overturned and both women fell out, Mrs Bodey sustaining serious head and brain injuries, exacerbated it seems by the fact that she was not wearing a riding hat that day (although this was not in the event an issue, as far as liability was concerned anyway). There was no evidence of negligence by Mrs Hall and the case proceeded to trial only under Section 2(2). To succeed, the claimant had of course to satisfy parts (a), (b) and (c) of Section 2(2), which she did. Yet Mrs Bodey lost her case.
The reason was that Section 5(2) applied: Mrs Bodey had consented to the risk of such an accident. The judge found that she was an experienced horsewoman who was familiar with the horse “Pepper” and who had driven with Mrs Hall several times before. She was aware of the risk of injury from the trap tilting or tipping.
Kara Goldsmith -v- Robert Bradley Patchcott was decided on 27 February 2012. The defendant was the owner or keeper of a horse called “Red” and was looking for someone to whom he could give the horse away at no charge. The claimant was an experienced rider in her thirties who expressed an interest. She came to see and ride the horse three times. The defendant told her that “Red” was “on his toes” and would require an experienced rider. On the first two occasions there were no problems. On the third occasion, something startled the horse. As was the case in the Mirvahedy case and the Bodey case, it was never determined what that was. “Red” reared up and then started to buck violently. The claimant was thrown to the ground and was struck by the horse’s hoof. She suffered severe facial injuries which had a devastating effect upon her life.
Mrs Goldsmith issued proceedings against Mr Patchcott (and another defendant, who played no part in the proceedings) and under Section 2(2) of the Act. At trial, Mrs Goldsmith accepted that she was an experienced rider and that there was a risk, when riding any horse, that it might be spooked at any time but denied that she was aware that the horse might rear and buck as violently as it did. She maintained that, had she known that, then she would not have ridden it.
The Court decided that (a), (b) and (c) were all made out (and, in particular, decided, in relation to (b), that rearing and bucking were normal characteristics of a horse in circumstances where it was startled or alarmed).
Nonetheless, the claim failed. The judge ruled that Section 5(2) applied, because the claimant had consented to the risk of the horse bucking and rearing. The claimant appealed, arguing that she had not voluntarily accepted the risk of the horse bucking and rearing so violently in this case. The defendant cross-appealed, arguing that the judge should not have decided that the requirements of Section 2(2)(b) had been satisfied.
The Court of Appeal reviewed the entire history of case law under Section 2(2). One of the cases reviewed was Flack -v- Hudson [2001] QB 698 in which the victim rider was unaware that the defendant’s horse was terrified of agricultural machinery. The horse panicked at a tractor and the rider was killed. The widower’s claim against the defendant succeeded because the attempt by the defendant to rely on Section 5(2) failed: in this case, the victim had not consented to the risks posed by the horse’s aversion (of which she was unaware but of which the defendant was aware) to agricultural machinery. By contrast, other cases (such as Freeman -v- Higher Park Farm [2008] EWCA Civ 1185) had shown that, even if a rider did not foresee exactly how vigorously an animal would exhibit its behavioural characteristic, the Section 5(2) defence would apply.
The Court of Appeal first of all dismissed the defendant’s cross-appeal, finding that bucking and rearing were characteristics of horses when startled or alarmed. The defendant’s contention that bucking and rearing were normal characteristics of any horse in any circumstance was specifically rejected.
As to the claimant’s appeal, the Court decided that the claimant was an experienced rider and had clearly accepted in the witness box that it was possible that a horse could buck or rear whenever one got on it. The fact that, in this case, the horse bucked and reared much more aggressively than the claimant anticipated was irrelevant. Consequently, Section 5(2) applied and the claim failed.
In Turnbull -v- Warrener [2012] EWCA Civ 412, the claimant and defendant were both experienced riders. Mrs Warrener owned a well behaved horse called “Gem”. When Mrs Warrener became pregnant, she agreed with her friend Ms Turnbull that Ms Turnbull would exercise “Gem” regularly. Ms Turnbull rode “Gem” most weekends for four months. “Gem” then started pulling his head to the right. The dentist filed the horse’s teeth and advised that “Gem” should not be ridden using a bridle with a bit for the following week. Ms Warrener bought a bitless bridle and she discussed the use of it with Ms Turnbull. “Gem” had never ridden with such a bridle before. They agreed to introduce the bitless bridle to “Gem” gradually. First of all, Ms Turnbull rode “Gem” for five minutes in the lungeing school and she then walked and trotted him for ten to fifteen minutes in another enclosed area. She then rode him in an outdoor space for fifteen to twenty minutes, with no problems. Mrs Warrener suggested that they “call it a day” but Ms Turnbull said she wanted to canter “Gem” up the field. Mrs Warrener said that, if Ms Turnbull felt safe, then she could do so. Instead of cantering, however, “Gem” galloped and Ms Turnbull could not restrain him. “Gem” veered to the right, through a gap in the hedge, and Ms Turnbull fell off on to tarmac and was injured.
The Court of Appeal could not agree among themselves on whether the claimant satisfied the requirement of Section 2(2) – but that did not matter, because they agreed that the defence at Section 5(2) applied: Ms Turnbull was an experienced rider and was aware of the risks associated with cantering “Gem” up the field in the bitless bridle and had clearly consented to the risk of such an accident. Lord Justice Burnton concluded “… inherent in that activity [riding] is the risk that on occasions the horse will not respond to its rider’s instructions or will respond in a way that the rider did not intend. That is one of the risks inherent in riding horses. That is all that happened in the present case.”.
These are three absolutely crucial decisions. They very probably rule out the chance of any experienced rider, when riding (or driving) someone else’s horse, from bringing a claim under Section 2(2). The only circumstances in which such a claim could still succeed would be if the horse suffered from an abnormal characteristic (such as applied in the case of Flack -v- Hudson) and the defendant had failed to warn the claimant.
Consequently, what purpose would be served by amendments to the Section? Those who originally proposed the amendments which were the subject of the DEFRA consultation in 2009 wanted to clarify the law and strengthen the position of animal owners – but these objectives have already been achieved by the outcome of the post-Mirvahedy cases.
On the basis of the 2009 consultation, there can be no doubt that no consensus will be achieved in the forthcoming consultation and consequently there seems little point in it. DEFRA should not follow the lead of the unfortunate trespasser in Cummings -v- Grainger [1977] 1 QB 397 CA who was so badly mauled: this is one dog, sleeping or not, which should certainly be left to lie.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.