In Ford v Seymour-Williams [2021] EWCA Civ 1848 the Court of Appeal handed down an important decision on the interpretation of section 2(2) Animals Act 1971 (“2(2)”). It is one that will be of considerable interest to those who deal with claims involving animals.
The claimant, an experienced horsewoman, was employed at the defendant’s yard as a groom. When riding a horse stabled in the yard at a pre-season meet she trotted onto a field when the horse stopped and refused to move, an issue known as napping. The claimant encouraged the horse forward but it reared and fell over backwards, landing on top of her causing her serious injuries. The horse died a few minutes later. The incident was witnessed by another experienced rider who thought the horse had suffered a heart attack.
The claimant brought a claim under the strict liability provisions of 2(2). This states that a keeper of an animal of a non-dangerous species is liable for the damage where:
- 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 the keeper or were at any time known to a person who at that time had charge of the animal.
At first instance, having heard evidence from veterinary experts, the Judge concluded the rearing was due to a cardiovascular event, which did not cause an immediate collapse but was preceded by sufficient pain or discomfort to cause the horse to stop and then rear. In addition, the Judge found that whilst the veterinary experts agreed a horse might rear as a response to catastrophic internal injury, that was not something that was common knowledge, even among experienced equestrians. Accordingly, the strict liability provisions of 2(2) did not apply as the 'particular circumstance' within the meaning of 2(2)(b) which caused the horse to rear was not known to the keeper and consequently there was not the requisite knowledge under 2(2)(c).
The claimant appealed. The issues raised concerned whether, when dealing with characteristics not normally found in animals of the same species except at particular times or in particular circumstances (for the purpose of the second limb in 2(2)(b)), identification of the "particular times" or "particular circumstances" when the relevant characteristic arises is necessary for the purpose of 2(2)(b), and whether knowledge for the purpose of 2(2)(c) requires knowledge of those "particular times" or "particular circumstances". The claimant argued the High Court had been wrong to find that identification of the "particular times" or "particular circumstances" is necessary, as is knowledge of them, and she also challenged the Judge's approach to and/or findings on the facts. Her primary position was that where expert evidence has identified a horse will only rear in certain given times or circumstances, it is not necessary for the purpose of 2(2)(b) to identify the time or circumstance that was actually engaged; by definition, one of the times or circumstances must have arisen.
Delivering the lead judgment, Lady Justice Carr confirmed the applicable authorities demonstrate that it is necessary to identify not only the characteristic but also the particular time or circumstance in which it arose. The correct approach being:
- The damage must be "due" to the characteristics of the animal, the reference to "times" and "circumstances" reflects the fact that there may be multiple causes of a particular characteristic, not that it is unnecessary to identify what the particular cause (or causes) was on the occasion in question when the damage occurred;
- Liability under 2(2) for an animal that does not belong to a dangerous species would otherwise be materially the same as the liability arising under 2(1) for an animal of a dangerous species;
- Fundamentally, 2(2)(b) needs to be construed in the context of section 2 as a whole. Identification of the particular time or circumstance in question is necessary for an assessment of whether or not a keeper has the relevant knowledge for the purpose of 2(2)(c). As the facts of this case themselves demonstrate, it is possible for a keeper to have knowledge of the fact that it is normal for a characteristic (here rearing) to manifest itself as a result of one particular time or circumstance (here disobedience) but not another (here a catastrophic internal failure).
The Court of Appeal found it was reasonable for the High Court to conclude the incident stemmed from a cardiovascular event and that the evidence was that this would not be something that would have been known to the defendant. It was unrealistic to suggest the Judge would find anything other than the cause of the horse's rearing (or more accurately the relevant circumstance for 2(2) purposes), was a catastrophic internal injury (as opposed to disobedience, panic or pain): disobedience, panic or pain were at most reactions to the trigger event, namely the internal catastrophe.
In concluding Lady Justice Carr stated the outcome did not represent a slippery slope that deprives the Animals Act 1971 of its intended force: it goes nowhere near requiring a claimant to establish negligence (or some other fault) in order to create liability under 2(2). Rather, it strikes a balance between giving claimants the right to a remedy without establishing any fault on the part of the keeper whilst at the same time ensuring the keeper will not be liable without knowledge of the particular times or circumstances in which the relevant characteristic under 2(2)(b) arises.
The Judgment provides a really useful summary of the law relating to section 2(2) Animals Act 1971. It is also a useful reminder that in addition to proving the relevant characteristic that caused the animal to act as it did for the purposes of 2(2)(b), the claimant also has to prove it
is possible for a keeper to have knowledge of that characteristic for the purpose of 2(2)(c). Without that knowledge liability under section 2(2) will not apply.
Our casualty injury team deals with cases brought under the auspices of the Animals Act 1971 on a regular basis. For more information or advice, please contact one of our experts.
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