England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE.
QUEEN'S BENCH DIVISION
KING'S LYNN DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC)
Neutral Citation Number: [2000]EWHC 0002 (Ch)

		Royal Courts of Justice Strand, London WC2
		Monday, 6th November 2000

Monday, 6th November 2000

JUDGMENT
1. LORD JUSTICE OTTON: This is an appeal by the First Defendant, Mrs Salli Jane Hudson, against the decision of His Honour Judge Langan QC, sitting as a Deputy High Court Judge in the Queen's Bench Division in Cambridge on 7th October 1999 when he gave judgment for the claimant in the sum of £175,000. The claimant, who is the respondent to this appeal, is the widower of Shirley Anne Flack, deceased, and claims on behalf of her dependants under the Fatal Accidents Act 1976.
2. In July 1993 the deceased was thrown from a horse owned by the appellant. The claim is brought solely under section 2 of the Animals Act 1971 which establishes strict liability. There is no claim in negligence. The amount of damages recoverable was agreed in the course of the trial.
3. The primary question for determination concerns the construction and effect of section 6(3) of the Act which provides that:

"... a person is a keeper of an animal if -

(a) he owns the animal or has it in his possession;"

4. The First Defendant as owner was clearly a keeper. The deceased was riding the horse with the consent of the owner. The appellant's case is that the deceased was a keeper and in that capacity she could not sustain an action against the First Defendant -- in other words one keeper cannot sue another keeper under the Act.
5. The background to the case can be briefly stated. The appellant, Mrs Hudson, bought Sebastian when he was an eleven-year-old cob in 1991. She rode him regularly until May 1993 when she decided not to ride him when she became pregnant. She advertised in the local post office for people who would be willing to ride the horse. Mrs Flack was one of those who responded. She had riding experience. Mrs Hudson, having watched her ride the horse in the field and on the road, selected Mrs Flack as a suitable person to exercise Sebastian. Thereafter, until the date of the accident, Mrs Flack rode Sebastian about three times a week both on and off the road.
6. On the morning of the accident Mrs Flack was riding Sebastian along Litcham Road, Dunham in Norfolk.
7. Mr Custance, originally the Third Defendant, was driving a Massey Ferguson 3070 four-wheel drive tractor in the same direction. Attached to the tractor was an LK trailing sprayer. The configuration of these two can clearly be seen on the photographs which have been supplied. Mr Custance saw a woman on a horse in front of him walking slowly along the near side of the road. He slowed down and the horse mounted the pavement. Mr Custance prepared to overtake and pulled over to the other side of the road to create room. As he was near to the horse he noticed that the horse was agitated and as the tractor drew nearer Sebastian bolted down the road towards Little Dunham. Mrs Flack was unable to control him and started to scream. When the horse was still galloping, she lost her balance and fell off onto the road. She died two days later.
8. The judge posed the question, "What was it that caused Sebastian to 'take off'", to use the words of one of the experts. Having considered the evidence of the three experts he came to the conclusion that the probable explanation was that Sebastian was frightened by the presence of the tractor and its attachment.
9. The judge found as a fact, and as was pleaded, that Sebastian had:

"... a propensity to be upset by and difficult to control and/or bolt when in the vicinity of agricultural or similar vehicles and/or machinery."

10. Section 1 of the Animals Act 1971 created new provisions as to the strict liability for damage done by animals. Under section 2 liability for damage done by dangerous animals is as follows:

"(1) Where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.

(2) 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 -

(a) 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

(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 or were at any time known to a person who at that time had charge of the animal as that keeper's servant..."

11. Section 6(3) provides:

"...a person is a keeper of an animal if -

(a) he owns the animal or has it in his possession;"

12. Section 5 creates an exception to the liability imposed by section 2:

"(1) A person is not liable...for any damage which is due wholly to the fault of the person suffering it. [or]

(2)... for any damage suffered by a person who has voluntarily accepted the risk thereof."

13. At trial it was not in dispute that the requirement of section 2(2)(a) was satisfied and that the Second Defendant, Mr Hudson, was not to blame. The judge found the following essential findings of fact:

1. That Mrs Flack was at the time of the accident a keeper of Sebastian within section 6(3);

2. That in the absence of knowledge on the part of Mrs Flack of the horse's propensity, there was no bar to Mrs Flack as bailee from raising a claim against the owner, Mrs Hudson;

3. That Sebastian's propensity to be upset and bolt constituted a characteristic falling within section 2(2)(b);

4. That the characteristic was well-known to Mrs Hudson;

5. That Mrs Flack was not in any way to blame for the accident under section 5 (1);

6. That Mrs Flack had not voluntarily accepted the risk of injury caused by Sebastian's particular characteristic under section 5(2);

7. That Mr Custance was not in any way to blame for the accident as Third Defendant.

14. The first ground of appeal concerns the interpretation of the word "keeper" within section 2(2)(b) as enlarged by section 6(3). Ms Rodway on behalf of the appellant submitted that the judge erred in law in that the deceased who as the keeper of the horse at the material time could still sue and recover from the appellant as owner. She submitted that the Act was not intended to be a substitute for civil actions arising out of negligence. She further submitted that it was not within the contemplation of Parliament that one keeper of a horse could sue another.
15. As she put it in paragraph 12 of her skeleton argument:

"In effect their knowledge of the characteristics of the animal would be the same. If such an unusual situation was to be provided for, the Act should clearly have set out the circumstances in which one keeper could recover from another either in respect of damage caused by the animal to the keeper himself, or for an indemnity in respect of damage caused to others. The general intention of the Act was plainly to protect strangers to the animal and employees required to work with animals."

16. To stretch the application of this statute to meet the circumstances of this case is in any event unnecessary as the respondent had a perfectly good cause of action in civil law which she chose not to pursue. The respondent must show that she did not know and could not be reasonably expected to know the characteristics alleged to cause the damage. The burden cannot be discharged by inference or in the absence of the court hearing direct evidence from the keeper himself.
17. I am unable to accede to that submission. I cannot see anything illogical in the interests of public policy which disentitles a bailee from maintaining an action against a bailor for damage attributable to a defect in the article which is the subject of the bailment. At common law (absent knowledge of the defect on the part of the bailee) the bailee has a clear and well-established cause of action. There is nothing in the Act which expressly or by implication deprives the bailee of his cause of action or which limits the persons who can sue a keeper (ie owner or bailee) to third parties and strangers. If it had been the intention of Parliament to deny the right, it would have expressly provided for this to happen. The logic of Ms Rodway's argument, as she conceded in argument, is that a prospective purchaser having mounted and assumed control of the horse for the purpose of putting it through its paces would not be able to sue if she were thrown off due to its characteristic of bucking and which had not been disclosed to her by the owner before she mounted. I am satisfied that this could not have been Parliament's intention.
18. There is a cross-notice in respect of the construction of the word "keeper" to which I shall return at a later stage.
19. The second ground advanced by Ms Rodway is that the learned judge erred in finding that there was a characteristic within the meaning of section 2(2)(b) despite the absence of any previous evidence of an analogous incident. Counsel points out that the subsection contains two limbs: (1), a characteristic of the animal which is not normally found in animals of the same species or, (2), which is not normally found at particular times or in particular circumstances. The case for the respondent rested squarely on the first limb, namely the characteristic as found by the judge:

"A propensity to be upset by and difficult to control and/or bolt when in the vicinity of agricultural or similar vehicles and/or machinery."

20. This characteristic, she submitted, is not normally found in horses. Accordingly the burden was upon the respondent to prove: (1), the existence of the characteristic and, (2), that it was abnormal.
21. In paragraph 20 of her skeleton argument she put it thus:

"For this dangerous characteristic to come within the Act it must be something habitual or which happens upon a regular basis. For something to be characteristic it must be ingrained in the nature of the person or animal. For it to be a behavioural propensity it must be a predictably regular occurrence."

22. It was not in dispute that this horse was likely to meet some type of agricultural or similar vehicle or machinery whenever he went on the road. What happened on the day of the accident was unprecedented and a "one-off" occurrence and thus this could not be a characteristic.
23. In the light of these propositions counsel contended:

"(i) that there was no or insufficient evidence to fulfil the requirement that the behaviour alleged on the day of the accident was behaviour characteristic of this horse;

(ii) that the judge was not entitled to bolster such evidence by inferring other incidents of similar behaviour in the absence of direct evidence of the same;

(iii) that the circumstances in which such behaviour would or could allegedly arise being commonplace, the absence of evidence of comparable behaviour should have weighed in favour of the argument that the horse did not possess the characteristic alleged;

(iv) that there was evidence directly contradicting the existence of the characteristic alleged which the judge failed to deal with in his judgment and which (if he was to reject the same) required proper consideration by the judge together with an explanation of why he rejected the same."

24. In considering this argument I take as my starting point two passages from Professor Peter North's book, "The Modern Law of Animals", published shortly after the coming into force of the Act, and in particular at page 51:

"If the requirement in section 2(2)(b) of the Animal Act that the animal must have displayed characteristics not normal to its species is given any other than a broad interpretation, it will exclude a large number of situations which, under the common law, led to liability. It is said to be the natural tendency of horses to shy, to be playful, to kick and bite other horses, though not perhaps to bite human beings."

25. He cites authorities for each of those propositions. He then continues:

"That being so, there would be no liability for injuries caused when a person is knocked down by a playful filly, or when one horse bites another, but only if it bites a person."

26. Ms Rodway, in developing her argument, cited instances of behaviour in horses which were normal and to be expected at particular times or occasions. She suggested, for example, a mare at her season or with a foal at foot might be unduly nervous, and that a stallion passing a field containing mares might also become agitated and indeed dangerous.
27. The second passage at page 52 is in the following vein:

"The second kind of abnormal characteristics envisaged by section 2(2)(b) are those which are not normally found in animals of the species in question except at particular times or in particular circumstances. The object of this provision would seem to be to apply to liability under section 2(2) a similar requirement as to abnormal characteristics to that which existed at common law, namely that it is not necessary for the species of animal always to reveal its dangerous or abnormal characteristics. If a species which is normally docile reveals vicious characteristics in certain particular circumstances, then those characteristics, though normal to the species in those circumstances, may be classed as abnormal. An obvious example of such circumstances would be that a female of a species may well, customarily, evidence fierce characteristics in the protection of its young, though generally it is docile. Such a situation could be exemplified by Barnes v Lucille, Ltd. - [1906] 96 LT 680 - The plaintiff had been bitten by the defendant's chow bitch, which at the time, had three pups, and the defendant knew that the dog, at least in such circumstances, had a propensity to bite people. Such intermittent ferocity was enough. Darling J said:

'I do not think... that in order to make the owner of a dog liable that the dog must be always and invariably ferocious. If the owner knows that at certain periods the dog is ferocious, then he has knowledge that at those times the dog is of such a character that he ought to take care of it. If a man knows that a bitch which is ordinarily amiable is ferocious when she has pups, and people go near her, I think he has knowledge that at such times she is of a ferocious character.'"

Professor North continues:

"This is the underlying ratio of the provision in section 2(2)(b) with the added rider that, for the purposes of the Animals Act 1971, it does not matter that such unusual characteristics are to be expected in those unusual circumstances. Other characteristics which would fall into the same category would, for example, by the case of

'a mare at seasons when she is subject to sexual excitement', or

'an ox, ordinarily mild, brought to slaughter, [for] It is said that the animals show an instinctive revulsion from the smell of the slaughter-house and often become wild.' Howard v. Bergin, O'Connor & Co. [1925] 2 I.R. 110, 125. A horse which is quite placid when used as a plough horse may bolt when put in a cart. Knight v. Knight [1933] GLR 237 ".

28. With those observations in mind, with which I totally agree, I can find no substance in the ground advanced by Ms Rodway. The question whether the accident was due to a characteristic of the animal not normally found in horses was essentially one of fact. There was, in my judgment, more than sufficient evidence which entitled the judge to reach the conclusion that he did. He accepted that in January 1992 the First Defendant's husband was leading Sebastian along the road when he and the First Defendant, who herself was mounted, encountered a large agricultural machine whereupon the horse bolted, pulling Mr Hudson along the road for considerable distance, fracturing his left leg, and as a result he has never ridden again.

Mr Hudson gave evidence and described how Sebastian turned tail and fled. The judge regarded this incident of "the greatest significance", and said at page 9:

"I can see no credible or alternative explanation other than that he took fright at and/or sound of the tractor, nor can I ignore these facts: that there was no adverse reaction from the horse being led by Mrs Hudson, although she and Candy were, on her evidence, in front of Sebastian; and that she warned Mr Hudson to pull Sebastian in."

29. Moreover, the learned judge accepted the evidence of Mrs Newton and Mr Custance as to things said by Mrs Newton. He said at page 10:

"Mrs Newton's evidence was that she called on Mrs Hudson in May 1993 while she was collecting for the Red Cross. Mrs Newton said upon her inquiring how Mrs Hudson was getting on with her riding, Mrs Hudson replied that the horse had bolted with her, and now she was too frightened to ride it alone."

30. The judge considered the evidence of Mrs Hudson and said:

"Mrs Hudson said that this evidence was invented by Mrs Newton and that all that she said was she was not riding because she was pregnant. As between these witnesses I have no hesitation in finding that the conversation was as recounted by Mrs Newton."

31. Mr Custance called on Mrs Hudson a few days after the accident to discuss what had happened. Mrs Hudson said to him that Sebastian was frightened of farm vehicles. It was practically the first thing she said. The judge accepted without hesitation Mr Custance's account of this discussion in the teeth of the denial of Mrs Hudson. He concluded:

"In my judgment, the incident involving Mr Hudson and the conversation with Mr Custance show that Sebastian had the propensity pleaded on behalf of Mr Flack. The other evidence shows, more generally, that he was a temperamental horse. That other evidence does not make Mr Flack's case under this heading but is consistent with it. I find Mrs Hudson's assertions as to her encountering no problems as regards Sebastian and agricultural vehicles to be unconvincing."

32. Thus, once the evidence of these three incidents was accepted, then according to what weight the learned judge attached to them, the finding of an abnormal characteristic was inevitable and gives the lie to the assertion that this was an unprecedented or "one-off" occurrence.
33. I would reject the assertion that this was not an abnormal characteristic but one common to all horses. The evidence of the three experts does not support the assertion that all horses bolt in such circumstances. It was therefore clearly abnormal.
34. The third ground concerns the statutory defence under section 5(2) to the effect that:

"A person is not liable under section 2 for any damage suffered by a person who has voluntarily accepted the risk thereof."

35. Ms Rodway contended that this provision was drafted in the widest terms and intended to provide a broad defence. The word "voluntarily" simply means of one's own free will. By choosing to ride Sebastian and by taking him out on the road, she did so of her own untrammelled and independent volition. Consequently, the defence is made out that if the person accepts the risk that they may suffer damage and (as in this case) personal injury. It is axiomatic that the mere act of riding any horse involves a risk of injury. Moreover, there was uncontested evidence that only three days before the accident the deceased herself had experienced an isolated incident when Sebastian became concerned and agitated at the sight of a tractor. Moreover, the judge was wrong to ignore and reject the evidence of Mr Barker that Mrs Hudson in his presence told Mrs Flack of the incident involving Mr Hudson.
36. I am unable to accept this argument. In reaching his conclusion the learned judge accepted that a broad interpretation of the section was forceful. He said:

"There is no liability 'for any damage suffered by a person who has voluntarily accepted the risk thereof'. I accept that these words should be given a broad construction untrammelled by any technicalities which may have attached to the common law defence of volenti non fit injuria."

37. He then considered the decision of the Court of Appeal in Cummings v Granger [1977] QB 397. The facts were that a fierce dog was clearly contained in a fenced scrapyard with a notice saying 'Beware of the Dog' on the gate. The claimant emphasised what a fierce dog it was and how frightened she was of it. Yet the court found that she entered the yard as a trespasser, where she was likely to be attacked and injured by the dog, which is in fact what happened. Thus the claimant had full knowledge of the risk involved and deliberately chose to take the risk and she failed to recover. Ormrod LJ observed at page 407G to H:

"I would like to read these words in their ordinary English meaning and not to complicate the question too much with the old, long history of the doctrine of volenti. That doctrine was developed in quite different conditions. It has nothing to do with such strict liability; and I would not, for my part, like to see that defence whittled down by too such fine distinctions as to what 'voluntarily accepted the risk' means. They are, to my mind, fairly simple English words and should in this context be treated as such. In this case I do not think it is open to any doubt whatever on the plaintiff's evidence that, assuming she did go into this yard, she accepted the risk."

38. The learned judge having considered Cummings v Granger continued:

"I accept also that, where a statute imposes strict liability, statutory words which provide exceptions to that liability should not be narrowly construed or applied."

39. He then went on to make two findings of fact which are of considerable significance. First that Mrs Flack:

"... appears to have been a mature and highly responsible woman, and one who was moreover the mother of four young children. Mr Flack said in his oral evidence: 'if she had been informed of a specific risk to her safety I do not think she would have ridden him'. I feel bound to agree."

Later he said:

"In my judgment, Mrs Flack was, at the most, told that she should be careful of agricultural machinery. I regard it as improbable that she was told about the incident with Mr Hudson, and as inconceivable that she was alerted to Sebastian's particular aversion to agricultural machinery. The 'risk' referred to in section 5(2) was, in the context of this case, the risk of injury caused by Sebastian's particular characteristic discussed earlier in this judgment. Nothing was said by Mrs Hudson which was sufficient to alert even an intelligent and experienced rider to the specific risk to which she was being exposed. Accordingly section 5(2) defence fails."

40. In my judgment these findings are unassailable. It is true that Mr Barton gave evidence supporting Mrs Hudson's version of a warning. It might have been better if the learned judge had made express reference to Mr Barton's evidence, but once he had rejected Mrs Hudson's evidence as a warning there was nothing to support Mr Barton's evidence. When I read it, his evidence (to say the least) left many features to be desired, and it is not surprising that the judge did not make reference to it. Consequently, there is no substance in the third ground of appeal, and I would dismiss the appeal.
41. There was one other matter which arose on a cross-notice to the effect that Mrs Hudson was not a keeper but merely a transient rider. Mr Christopher Gardener QC submitted that it could not have been Parliament's intention to impose strict liability to third parties in such circumstances and the expression should consequently be given a narrower interpretation. I can see no merit in this submission. The language used is clear and unequivocal and does not require the restricted meaning contended for. It was the clear intention of Parliament that a person in possession or in control of the horse should be liable to third parties provided he had the requisite knowledge of the dangerous characteristic. I would therefore dismiss the cross-notice.

42. LORD JUSTICE KEENE: I agree. I would only add a few words on the issue of whether as a matter of law a keeper of an animal within the meaning of section 5(3) of the Animals Act 1971 can rely on section 2 thereof so as to sue another person who also qualifies as a keeper of the same animal.

42. In the present case this has taken the form of a person with possession of the animal seeking to sue the owner of it. It seems to be a point which has not previously arisen in the courts. Like Lord Justice Otton I can see no reason why one keeper such as a bailee of an animal should not be able to plead the strict liability of the owner of that animal under the Act. The Act itself imposes no such barrier to those proceedings nor, logically, is one required. The owner has his protection in the requirement that knowledge on his part of the dangerous characteristic of the animal must be proved if he is to be liable under section 2(2) and he also has the potential protection in appropriate cases of the section 5 defences.
43. Why should someone who has possession of an animal not be able to recover from the owner for the damage he suffers without proof of negligence if the owner is aware that the animal has the abnormal characteristic which made it likely that such damage would be caused?
44. I, for my part, can perceive no basis for denying such a bailee the benefits which the Act provides for those who suffer damage from an animal in such circumstances. I, too, would dismiss this appeal and the cross-appeal.

46. MR JUSTICE KAY: I agree with both judgments given, and I, too, would dismiss the appeal and cross-appeal.

(Appeal dismissed; costs in the appeal; leave to appeal to House of Lords refused)