England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE
HIS HONOUR JUDGE WALTON
0NE03519

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/02/2012

Lord Justice Jackson :

1. This judgment is in six parts, namely,

Part 1 . Introduction,

Part 2 . The Facts,

Part 3 . The Present Proceedings,

Part 4 . The Appeal to the Court of Appeal,

Part 5 . The Law,

Part 6 . Decision.

Part 1. Introduction
2. The issue in this case is whether a horse rider, who suffered grievous injuries in a fall, can recover damages under the Animals Act 1971. This issue requires the consideration of two questions: first, whether the requirements for establishing strict liability under section 2 (2) of that Act are established; secondly, whether the keeper of the horse has a defence under section 5 (2) of the Act.
3. In this judgment I shall refer to the Animals Act 1971 as "the Animals Act" or "the Act". Section 2 of the Animals Act provides:

"2 (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 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."

4. It can be seen that section 2 (1) imposes upon the keeper strict liability for damage caused by an animal belonging to a dangerous species. Section 2 (2) imposes strict liability upon the keeper (subject to specified conditions) for damage caused by animals which do not belong to a dangerous species. For the sake of brevity I will refer to animals falling with section 2 (2) as "domesticated animals". It can be seen from the law reports that claims brought under section 2 (2) of the Act often relate to dogs or horses.
5. Section 5 of the Animals Act provides:

"5 (1) A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.

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

6. Other possible defences are set out in sub-sections (3) – (6) of section 5, but they are not relevant to this appeal.
7. The claimant in the action and the appellant before this court is Mrs. Kara Goldsmith, who was born in 1972 and was aged 35 at the date of the accident.
8. The horse from which the claimant sustained her fall was called "Red". The keeper of Red was Mr. Robert Patchcott, who is the first defendant in the action. He is the only defendant who has played any active part in the proceedings. For brevity I shall refer to him as "the defendant".
9. A lady called Mrs. Cheryl Roach was formerly the owner of Red and may still have been the owner at the time of the accident, although this is not entirely clear. Although joined as second defendant in the action, Mrs. Roach has played no part in the proceedings.
10. After these introductory remarks I must now turn to the facts.
Part 2. The Facts.
11. In March 2008 the defendant was looking after the horse, Red, which either was owned or had been owned by Mrs. Roach. The defendant had looked after the horse for some months and was trying to find someone to whom he could give the horse for no charge.
12. The defendant was introduced to the claimant on or about the 19^th March 2008. They discussed the horse and the claimant expressed interest in taking it. Over the next few days the claimant and her family visited the defendant at his home three times. The claimant rode the horse in the company of the defendant.
13. On 24^th March 2008 the claimant went for a ride on Red by herself. During the course of that ride something startled the horse. Red reared up. Then he started to buck violently. The claimant tried to ride it out, but she did not succeed. She was thrown to the ground and then struck by the horse's hoof. The claimant suffered severe facial injuries, which have had a devastating effect upon her life.
14. In due course the claimant made a claim for damages, which the defendant did not accept. Accordingly she commenced the present proceedings.
Part 3. The Present Proceedings
15. By a claim form issued on 23^rd April 2010 the claimant claimed damages for both negligence and breach of statutory duty against Mr. Patchcott as first defendant and Mrs. Roach as second defendant.
16. Mrs. Roach has taken no part in the proceedings. Although judgment in default of defence has been entered against her, it appears that she is not the principal target of this litigation.
17. The action duly proceeded against Mr. Patchcott as the only active defendant. Pleadings and witness statements were duly exchanged. The action was listed for trial before His Honour Judge Walton in the Newcastle-upon-Tyne County Court on 30^th and 31^st March 2011.
18. At the trial there was much conflicting evidence about what the defendant said to the claimant at their various meetings and how the horse behaved when the claimant rode him before the day of the accident. There was also a dispute as to whether the defendant told the claimant not to bring her children because they frightened the horse and whether the defendant told the claimant not to ride Red on 24^th March, because it was too late in the day. I do not need to go into any of that evidence. The judge heard the oral evidence and made findings of facts, which cannot sensibly be challenged. Indeed neither party seeks to challenge them.
19. In his judgment handed down on 10^th June 2011 the judge made the following findings of fact:

i) When the claimant and the defendant first met the defendant said words to the effect that Red was "on its toes" and would require an experienced rider.

ii) There were no significant incidents when the claimant rode Red on the days before 24^th March. The claimant's riding on those occasions reassured the defendant as to the claimant's abilities as a horsewoman.

iii) The purpose of the claimant's visit on Monday 24^th March was to have some time with the horse on her own and also to see how it behaved in the presence of her children. The defendant did not object to the children coming on that occasion and he permitted the claimant to ride Red unaccompanied.

iv) The horse's behaviour in the stable on 24^th March did not give cause for concern. There was no indication that the claimant would be ill advised to go out for a ride on Red.

v) During the course of the claimant's ride something unknown but out of the ordinary startled the horse. Red reared up and then started bucking violently. The claimant was thrown off the horse during the bucking. She did not fall off or jump off intentionally.

vi) The accident was not wholly or partly the claimant's fault.

vii) Both the claimant and the defendant knew that horses could buck when startled or alarmed. Neither the claimant nor the defendant anticipated that Red would buck as violently as it did on 24^th March. It had not done so before within the defendant's experience.

20. It is only necessary for me to refer to one passage in the oral evidence before the judge. That is the cross-examination and re-examination of the claimant concerning her state of knowledge. The last part of the claimant's cross-examination and the first part of her re-examination read as follows:

"Q. You rode that horse as an experienced, confident rider, did you? – A. That's correct.

Q. You recognise you've ridden horses which, put it this way, are challenging, the kind of horse they are? – A. Yes.

Q. And with your knowledge of that horse and how it had reacted to you and your background and experience as a rider, you felt safe and confident riding it, did you? – A. I did, yes.

Q. And you, in getting on, accepted that risk, didn't you, because in riding any horse, there is a risk? – A. There is a risk with riding any horse, yes.

Q. And you knew that there was a risk in riding any horse, that it might be spooked at any time? – A. It could, yes.

Q. For nothing that was apparent at all? – A. True.

Q. Which was the case here, wasn't it? – A. It spooked.

Q. Yes, for nothing apparent? – A. Well I wasn't aware of anything.

Q. No, and no one could have guarded against that in that situation, if you were up there on your own at that time of night, something might or might not have spooked it? – A. True, I was the only one there.

Q. So in going up there, you were really accepting the risks that are involved in riding horses, weren't you? – A. Well as I said, you take a risk riding any horse.

Mr. Lightwing: Thank you very much.

Re-Examined by Mr. Stead:

Q. When you went up on that horse, were you aware of the risk of the horse rearing and bucking violently, as it did? – A. No, no.

Q. If you had known of the risk of the horse bucking violently and rearing up, as it did, would you have gone out on the horse? – A. I would not."

21. Having made his findings of fact, the judge turned to the issue of liability. The claimant abandoned her allegations of negligence and pursued only her claim based on strict liability under section 2 (2) of the Animals Act. The "damage" which the claimant asserted was personal injury caused by the horse rearing and then bucking several times. There was no dispute between the parties that the requirements of section 2 (2) (a) of the Act were satisfied: see paragraph 58 of the judge's judgment. The main issues between the parties were whether the requirements of section 2 (2) (b) were satisfied and whether the defendant had a defence under section 5 (2).
22. In relation to section 2 (2) (b) the judge held that the relevant characteristic of Red was rearing and bucking when startled or alarmed. This was a normal characteristic of horses in particular circumstances, namely when they were startled or alarmed. Accordingly the judge held that the requirements of section 2 (2) (b) were satisfied.
23. The judge held that the requirements of section 2 (2) (c) were satisfied since the relevant characteristic, namely rearing and bucking when startled or alarmed, was known to the defendant.
24. The judge finally turned to section 5 (2) of the Act. He held that when the claimant rode on Red she was aware of the risk that the horse would rear and buck if it was startled or alarmed. Therefore she voluntarily accepted that risk. Since rearing and bucking was the cause of the accident, it followed that the defendant had a defence under section 5 (2). The judge considered it immaterial that the horse bucked more violently than the claimant anticipated. Accordingly he dismissed her claim.
25. The claimant is aggrieved by the judge's decision on liability. She therefore appeals to the Court of Appeal.
Part 4. The Appeal to the Court of Appeal
26. By an appellant's notice filed on 29^th June 2011 the claimant appealed to the Court of Appeal on what were said to be three grounds, but really constituted a single ground of appeal. This ground was that the judge erred in holding that the claimant had voluntarily accepted the risk of injury within section 5 (2) of the Animals Act.
27. On the 12^th September 2011 Rix LJ upon consideration of the papers granted permission to appeal. On 27^th September 2011 the defendant served a respondent's notice, seeking to uphold the judge's decision on alternative bases. First, the defendant contended that the judge was correct to uphold the defendant's defence under section 5 (2) of the Act. Secondly, and in the alternative, the defendant contended that the judge erred in holding that the requirements of section 2 (2) (b) were satisfied.
28. The appeal was argued on 2^nd February 2012. Mr. Richard Stead appeared for the appellant/claimant. Mr. Benjamin Browne QC, leading Mr. Stuart Lightwing, appeared for the respondent/defendant. I am grateful to all counsel for their assistance.
29. Before grappling with the issues raised by the appeal, I must first review the law.
Part 5. The Law
30. Section 2 (1) of the Animals Act imposes strict liability for damage caused by animals of a dangerous species. Section 2 (2) deals with domesticated animals, such as dogs and horses. That section imposes strict liability on the keeper, but only if certain conditions are satisfied.
31. The language of section 2 (2) is both oracular and opaque. Judges and jurists have spent the last forty years seeking to elucidate its meaning.
32. Section 2 (2) (a) of the Animals Act provides that if a domesticated animal causes damage, the first condition for imposing strict liability is that 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."

33. It can be seen that sub-section (2) (a) catches two types of damage. First, there is damage which the animal is likely to cause, if the animal is not restrained. Secondly, there is damage which the animal is unlikely to cause, but which is likely to be severe if the animal does cause it. It should be noted that this sub-section will only eliminate a small number of cases. Most animal-related damage which someone wishes to sue about will fall into one or other of those two categories.
34. I turn now to section 2 (2) (b). Two conflicting lines of authority developed concerned the meaning and effect of this sub-section. These two lines of authority are reviewed by Professor North in his helpful book "Civil Liability for Animals" (2^nd Edition, 2012, Oxford University Press) at chapter 2.
35. In Cummings v Granger [1977] 1 QB 397 the Court of Appeal adopted a literal approach to the construction of section 2 (2) (b). This was followed in Curtis v Betts [1990] 1 WLR 459. In Breeden v Lampard (C.A. Civil Division, transcript no. 1035 of 1985), however, the Court of Appeal adopted a purposive approach to construing the sub-section. Breeden was followed by the Court of Appeal in Gloster v Greater Manchester Police [2000] PIQR 114. In Mirvahedy v Henley [2003] UKHL 16, [2003] 2 AC 491 the House of Lords by a majority of three to two held that the "Cummings interpretation" should be followed and the "Breeden interpretation" should be rejected.
36. The effect of section 2 (2) (b), as elucidated after thirty years of judicial analysis, is neatly summarised by Lord Nicholls in Mirvahedy at paragraph 43 as follows:

"Requirement (b) will be satisfied whenever the animal's conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal's behaviour was characteristic of the species in those circumstances."

37. Lord Hobhouse agreed with Lord Nicholls: see paragraph 61. Lords Nicholls, Hobhouse and Walker constituted the majority in Mirvahedy.
38. Further elucidation of the meaning of section 2 (2) (b) was provided by the Court of Appeal in Welsh v Stokes [2007] EWCA Civ 796, [2008] 1 WLR 1224. In that case the claimant was riding a horse ("Ivor") on a road. She fell off at a crossroads when the horse reared up. Her claim against the keeper under section 2 (2) of the Animals Act succeeded. Dyson LJ, with whom Richards and Thomas LJJ agreed, said that the word "normally" in section 2 (2) (b) was not confined to "usually". The core meaning of "normal" was "conforming to type". At paragraph 47 he said:

"I can find nothing in the context of subsection (2) (b) to suggest that Parliament did not intend "normally" to bear this core meaning. It is difficult to see why Parliament should have intended to exclude from the ambit of subsection (2) (b) cases where the relevant characteristic is natural, although unusual, in the animal which has caused the damage."

39. Adopting that approach, Dyson LJ concluded that it was a normal characteristic for Ivor to rear up in particular circumstances, because horses do rear up from time to time. Dyson LJ regarded it as immaterial that there was no evidence that Ivor had ever reared in this way before. The characteristic of rearing was normally found in horses as a species in particular circumstances. Accordingly he held that the requirements of the second limb of section 2 (2) (b) were satisfied.
40. The decision in Welsh, with which I respectfully agree, illustrates the truth of Lord Nicholls' observation in Mirvahedy that in most cases where section 2 (2) (a) is satisfied, requirement (b) will also be satisfied. It is not obvious, to me at least, what purpose section 2 (2) (b) serves.
41. Section 2 (2) (c) imposes a more coherent requirement than the two previous sub-sub-sections. Section 2 (2) (c) requires that the relevant characteristics of the animal be known to the keeper or others linked to the keeper. The relevant characteristics are those which caused the likelihood of damage or the likelihood of severity of damage as set out in section 2 (2) (a) and (b).
42. The mischief against which section 2 (2) of the Animals Act is directed can be gathered from the report of the Law Commission on Civil Liability for Animals (No. 13 of 1967), which preceded the enactment of the Animals Act. At paragraph 17 the Law Commission wrote:

"If, as we have recommended, there is to be a category of animals of a dangerous species for which strict liability is imposed, it would seem reasonable that an animal not belonging to that category should nevertheless give rise to strict liability in respect of injury or damage which it causes if that damage results from dangerous characteristics of the particular animal which are known to its keeper. As far as the potential defendant is concerned, he is equally the creator of a special risk if he knowingly keeps, for example, a savage Alsatian as if he keeps a tiger. As far as the potential plaintiff is concerned, an animal belonging to an ordinarily harmless species, which is known to its keeper to be dangerous is in the nature of a trap - a "wolf in sheep's clothing" - which would seem to justify the same strictness of liability as applies to an obviously dangerous animal."

43. Once one fights through the thickets of sub-sub-sections (a) and (b), it can be seen that section 2 (2) (c) does broadly achieve that objective stated by the Law Commission.
44. I turn now to section 5 of the Act. This section sets out a number of different defences which may exempt an animal's keeper from the strict liability imposed by section 2. The relevant defence for present purposes is that contained in section 5 (2).
45. Defences of this nature assume particular importance in cases of strict liability imposed by statute. This is because they provide an escape route for defendants who face tortious liability, even though their conduct was neither negligent or otherwise culpable. In Cummings at 408 Ormrod LJ made this observation about section 5 (2):

"I would like to read those 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 strict liability; and I would not, for my part, like to see that defence whittled down by too 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."

46. Three recent cases illustrate the operation of section 5 (2) in the context of riding accidents.
47. In Flack v Hudson [2001] QB 698 the claimant's wife was riding a horse which had a propensity to be frightened by agricultural machinery. The defendant, who was owner and keeper of the horse, knew of this characteristic but the claimant's wife did not. The horse bolted when a tractor approached and the claimant's wife was thrown to the ground, suffering fatal injuries. The claimant's claim under the Fatal Accidents Act 1976 succeeded. Both the trial judge and the Court of Appeal rejected the defence under section 5 (2) of the Act. This was because the deceased had not been alerted to the horse's aversion to agricultural machinery. She was not aware of and therefore had not voluntarily accepted this specific risk.
48. In Plum v Berry (Preston County Court, 5^th November 2004) the claimant fell from a horse and suffered an injury as a result of the horse bucking. Mr. Recorder Ryan dismissed her claim against the keeper for a number of reasons, not least the fact that the claimant had caused the animal to buck through pulling too hard on the horse's mouth. In paragraph 42 of his judgment the Recorder explained why the keeper had a defence under section 5 (2) of the Animals Act:

"(7) However, I find in addition that in any event the risk of being unseated by such an event is one which any rider who is competent to canter and hack out accepts. Riding is a pursuit involving the control by a rider with the mind and the aids of rein, leg, seat and crop of a horse with its own mind and physical attributes. That relationship and activity involving two living beings cannot be precisely predicted or judged to the second or the centimetre. The occurrence of an accident in such a manner as I have found is precisely the risk and type of risk which a rider undertakes.

(8) In my judgment the claim in this case falls squarely within section 5 (2), so even if I were persuaded, as I am not, that section 2 (2) liability attached, I would find the defendants blameless by reason of section 5 (2)."

In my view, this was a correct application of section 5 (2) to the facts of that case.

49. Freeman v Higher Park Farm [2008] EWCA Civ 1185 concerned a riding accident on Chobham Common. The claimant, an experienced rider, fell when the horse ("Patty") gave two or three bucks as it was beginning to canter. She suffered serious injuries. The claimant's claim against the owner of the horse failed for a number of reasons. A crucial feature of this case was that both the claimant and the defendant were aware of Patty's propensity to buck, but neither was aware that Patty might buck so violently as to cause an experienced rider to fall off: see the judge's findings of fact recorded at paragraph 28 of Etherton LJ's judgment. Despite this limitation on the claimant's knowledge, the defendant's defence under section 5 (2) succeeded. See the judgment of Etherton LJ at paragraphs 47 to 51. Smith and Tuckey LJJ agreed with that judgment.
50. This line of authorities illustrates how section 5 (2) of the Act operates. If the claimant, knowing of the risk which subsequently eventuates, proceeds to engage with the animal, his or her claim under the Act will be defeated. It is not a prerequisite of the section 5 (2) defence that the claimant should foresee the precise degree of energy with which the animal will engage in its characteristic behaviour. Animals may act out of instinct or impulse and their precise behaviour cannot necessarily be predicted.
51. With the benefit of this review of authority, I must now address the issues in this appeal.
Part 6. Decision
52. The first issue to address is the contention of the defendant in the respondent's notice that the judge erred in holding that the requirements of section 2 (2) (b) were satisfied.
53. Mr. Browne, relying upon a dictum of Etherton LJ in Freeman, submits that the phrase "at particular times or in particular circumstances" denotes times or circumstances which can be described or predicted. Horses do not only buck when startled or alarmed. Therefore the bucking in this case does not fall within the second limb of section 2 (2) (b). See paragraph 3 (b) of Mr Browne's skeleton argument.
54. I do not accept this argument. In the light of the authorities set out in Part 5 above, section 2 (2) (b) should not be given the restrictive interpretation for which Mr. Browne contends. On the evidence the judge found that bucking and rearing were a characteristic of horses in particular circumstances, namely when they were startled or alarmed. In my view, the judge's conclusion that the requirements of section 2 (2) (b) were satisfied follows logically from that finding.
55. In oral argument Mr. Browne submitted that if Red bucked more violently than normal, then that took this case outside section 2 (2) (b). I do not agree. The energy or violence with which Red bucked does not affect this issue. Bucking by a horse when startled or alarmed is a characteristic which falls within the second limb of section 2 (2) (b). Therefore the requirements of that subsection are satisfied.
56. I turn now to the second issue in this appeal, which concerns the operation of section 5 (2). The core of the judge's reasoning on this issue is set out as follows in paragraph 87 of his judgment:

"While none of the cases refer to a situation where it is said the risk that materialises is of greater intensity than might have been anticipated it does not seem to me to be a particularly sound distinction to say that the claimant here consented to bucking (which involves some violent movement of the horse) but not as much bucking. How many times a horse bucks when spooked and how violent those movements are would seem to me to be entirely a matter of chance. An analogy might arise in relation to the bitch with pups. An experienced dog owner would know that there would be a risk of a bite if a hand was placed in too close proximity to a bitch nursing pups. No one could say how many times or how deeply she would bite. In terms of the present case, a rider confident of her abilities as was the claimant, would probably assume that she could cope with the horse bucking if it was alarmed, but she could not exclude that it would buck so violently that she would be thrown off and injured."

57. Mr. Stead criticises that part of the judgment. He submits that the claimant voluntarily accepted the risk of normal bucking, but not the risk of the violent bucking that occurred in this case. She was unaware that this was a possibility. In support of this submission he relies on the passage of the claimant's evidence which I have set out in Part 4 above.
58. I do not accept this argument. Section 2 (2) imposes strict liability for damage caused by domesticated animals, if certain conditions are satisfied, irrespective of whether the keeper was at fault. Against that background, I do not believe that the defence set out in section 5 (2) should be construed as restrictively as Mr. Stead contends.
59. In my view the judge's approach in paragraph 87 of his judgment is correct. It is consistent with the reasoning of the Court of Appeal in Freeman. If the claimant foresaw the possibility of bucking and voluntarily accepted that risk, then section 5 (2) is engaged. The fact that Red bucked more violently than anticipated cannot take this case outside section 5 (2), so as to defeat the defendant's defence.
60. Let me now draw the threads together. For the reasons set out above, in my view the judge reached the right conclusion on the application of both section 2 and section 5 of the Animals Act to the facts of this case. If my Lords agree, the claimant's claim fails and this appeal is dismissed.

Lord Justice Rimer:

61. I have had the advantage of reading in draft the judgments of Jackson and Longmore LJJ and I agree with both.

Lord Justice Longmore:

62. At one time I thought there was considerable force in Mr Browne's argument that, if it was normal for horses to buck or rear when startled, the claimant could not succeed under the second limb of section 2(2)(b) of the Animals Act. But on reflection I do not think that can be right when the specific finding of the judge was that "horses buck when startled or alarmed". That is intended to be a finding that the damage was due to a characteristic "not normally … found except at particular times or in particular circumstances" since it was that characteristic which, according to the judge (para 62), brought the case within section 2(2)(b).
63. There was no expert evidence in this case and the "evidence" that horses buck when startled or alarmed seems to have been common ground between the parties. For Mr Browne's cross-appeal to succeed, there would need to have been evidence that bucking was a normal characteristic of any horse in any circumstance. That is not a conclusion to which the judge came although, on other evidence, another judge might.
64. I agree, therefore, that the cross-appeal must fail. But I also agree with Jackson LJ, for the reasons he gives, that the appeal against the judge's conclusion (that the claimant must be taken to have accepted the risk that the horse would buck when startled or alarmed) should also fail and that the judge was therefore right to dismiss the claim.