This was a trial on liability arising out of a trampling incident in which a member of the public had been injured by a cow. The court found that the claimant had neither made out her claim for a breach of s2(2) of the Animals Act 1971 nor in negligence and her claim failed.

It is perhaps an example of an unintended consequence of QOCS. Would this have got anywhere near a final hearing on liability had the claimant been at risk of an adverse costs order?

It is also an example of how expert evidence may add nothing to the understanding of the issues involved!

Accident

The claimant was walking her dog in a field in a nature reserve on a June evening in 2016. The area was managed by the local authority and it had agreed with a local farmer (the defendant) that he could graze cattle in the field in question.

The claimant’s account of the accident is that she entered the field with her dog which was on a lead. She was on her mobile phone throughout. As the field levelled off the claimant said that she could see the cow a few feet in front of her. On seeing it, the claimant says that she turned around immediately to retrace her route and bent down to rotate the dog’s collar. Why she did this is not explored. While she had her back to the cow, it knocked her to the ground and trampled her, causing injury.

Claim

The claimant alleged a breach of s2(2) of the Animals Act 1970 which provides that:

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—

• 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 or were 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, were known to another keeper of the animal who is a member of that household and under the age of sixteen.

The defendant agreed that (a) was satisfied but disputed that strict liability arose under (b). The claimant also alleged that the defendant had been negligent, which was disputed.

Evidence

The only direct eye witness evidence was that of the claimant herself. The lay witness for the defendant, the Parks and Countryside Manager, gave evidence as to a conversation he had with the claimant after the accident in which he said she referred to getting the dog’s lead becoming tangled with the cow. In trying to pull the dog away, she fell and was trampled. The claimant denied there was any tangling of the lead or that she had said so to the Countryside Manager.

The parties had instructed liability experts who had largely reached agreement:

1. It was highly unlikely that the cow was in full flight or flight mode;
2. It is likely the animal was seeking water from the trough, which was why it was away from the herd;
3. As the claimant approached it, the cow would have turned to face a potential threat;
4. All the cows would have been a little more anxious as they had been transported to the field that day;
5. The cow in question was, nonetheless, not demonstrating a full-blown fear state;
6. The cow would have wanted to return to the

The experts disagreed as to how the cow knocked the claimant over. The defendant’s expert thought it more likely that it had lowered its head to investigate when the claimant bent down to rotate the dog’s collar and put herself in the cow’s personal space. The cow moved forward and inadvertently knocked the claimant over. The claimant’s expert’s view was that the cow essentially walked “through” the claimant in trying to return to the herd.

The judge noted that, in essence, both experts had no option but to resort to “surmise and conjecture” in the absence of any better or fuller evidence. On the evidence he was unable to make a finding as to which expert was to be preferred.

Judgment

Animals Act

The claimant alleged that the cow was acting normally for cows in the particular circumstances. Having been in unfamiliar surroundings, at dusk and feeling anxious and then threatened by the claimant and her dog, it was a normal response for the cow to try to return to the herd regardless of obstacles in its way.

The Judge disagreed. A cow acting inquisitively in the manner described by the defendant’s expert would not arise from a characteristic attracting strict liability under s2(2)(b). It was a normal characteristic, not one arising at a particular time or in particular circumstances. The same would apply to a cow seeking to rejoin the herd after drinking from a trough. The claimant’s case in essence was that the cow, whether through aggression or anxiety, tried to return to the herd, ignoring the claimant whom it trampled. The judge professed himself unable to find for the claimant on this point.

The claimant’s counsel’s “more nuanced” final submission was that the cow was in a state of high anxiety causing it to keep its head raised and return to the herd with the fixed intention of going through or over the claimant. Had this been persuasive, the judge said he might have found that strict liability applied but he was not so persuaded. Strict liability was not proved, therefore.

Negligence

The claimant alleged that the defendant had grazed cows in the field whilst knowing that people used it to walk in. The claimant alleged that the risk would have been avoided had cows not been placed in the field but, said the judge, in reality the claimant’s case on negligence was based on two grounds:

1. There should have been electric fencing to separate cattle and public; and
2. The signage was inadequate to warn the public.

On the fencing question, the judge found that the cattle were docile, the field had been used for grazing for 10 years and an electric fence would have presented its own safety problems for the public.

As to signage, the claimant’s evidence was that she would not have entered the field had she known of the presence of cattle. She did not believe a warning sign was present. The judge however accepted the defendant’s evidence that such a sign had been posted and that the claimant had simply missed it. This was because, the judge found, she was not expecting cattle to have been in the field and that she had been on her phone at the time which meant she was not paying any attention to her surroundings. The judge based this view on the fact that the herd would have been visible shortly after she entered the field and yet the claimant did not see the cow which trampled her until she was a few feet away. Her attention was elsewhere.

The claimant’s claim in negligence failed.

Conclusions

Strict liability under the Act does not mean an automatic win for the claimant. It is only if all the requirements set out in s2(2) have been satisfied that strict liability will be found.

This case is a reminder to ask yourself the question “is an expert really necessary?”. It is not clear which party first instructed an expert but it is clear that neither was able to assist the court in any meaningful way. The judge was “unable to make a finding as to which expert view (was) preferable”.

This is an example of what looks like a marginal case going all the way to a liability hearing. The defendant clearly felt unwilling to compromise the claim by making an offer and who could blame him? The claimant was at no risk of an adverse costs order under the QOCS rules. The question in relation to the “level playing field” in relation to costs which QOCS was ostensibly to establish is once again raised.