Fitzgerald v E. D. and A. D. Cooke Bourns (Farms) Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK
Judgment Date29 May 1963
Judgment citation (vLex)[1963] EWCA Civ J0529-2
Docket Number1962. F. No. 37

[1963] EWCA Civ J0529-2

In The Supreme Court of Judicature

Court of Appeal

(From Mr Justice Phillimore Lincoln Assizes).

Revised

Before

Lord Justice Willmer,

Lord Justice Danckwerts and

Lord Justice Diplock

1962. F. No. 37
Between
Elizabeth Fitzgerald (Femma sole)
Plaintiff
and
E. D. & A. D. Cooke Bourne (Farms) Limited and George Bateman
Defendants

Mr R. MARVEN EVERETT, Q. C., and Mr G. F. IRVON SUNDERLAND (instructed by Messrs Berrymans, Agents for Messrs Blewitt & Co., Birmingham) appeared on behalf of the Appellants (Defendants).

Mr GEOFFREY D. LANE, Q. C., and Mr IAIN C. R. McCULLOUGH (instructed by Messrs Kingsford, Dorman & Co., Agents for Messrs Kelham & Sons, stamford, Lincs.) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE WILLMER
1

Mr Everett, since 4 o'clock yesterday afternoon we have had an opportunity for consultation, the upshot of which is that we need not trouble you further.

2

Mr EVERETT: If your Lordship pleases

LORD JUSTICE WILLMER
3

This is an appeal by the defendants from a Judgment of Mr Justice Phillimore, given at Lincoln Assizes on the 6th February 1963, in an action brought by the plaintiff against two defendants for damages in respect of personal injuries sustained by her. The learned Judge found in favour of the plaintiff's claim and assessed the damages at £500 No question has been raised on this appeal with regard to the quantum of damages. The appeal has been directed solely to the question of liability.

4

The action arose out of an incident which took place on Easter Monday, the 18th April 1960, when the plaintiff, while walking with her son and daughter along a public footpath through a field near Bourne, was injured by a young and unbroken filly belonging to the first defendants, which had been placed in the field by the defendants together with another filly of about the same age. The particular filly which caused the injury had been bred as a racehorse, the other one apparently being destined to be a hunter. The field where the incident took place is well illustrated by some photographs which were put in evidence and have been before us. I think that the only comment which I need make at this stage is that, as the photographs clearly show, the foot path runs straight across the field, and there is nothing in the shape of a fence or a hedge separating the footpath from the rest of the field

5

What has been alleged is that these two fillies came galloping across the field from somewhere behind the plaintiff as she was walking, and, after getting in front of her, one of them swerved round towards her, prancing about, and struck her with its shoulder in such a way as to knock her down. Fortunately she did not receive any serious physical injury; but, as perhaps is only to be expected, she was very frightened, and in the result she suffered from a nervous breakdown. It is mainly in respect of that after-effect that the damages were awarded.

6

The first defendants were sued as the owners of the two fillies. The second defendant is, or was, the groom employed by the first defendants, and was the man immediately responsible for looking after the two fillies. The plaintiff said in evidence that shortly after the incident she saw the groom and spoke to him. Actually she said there were two occasions on which she did that on both occasions she says that she complained about the incident, and she further says that the groom then admitted to her that these two fillies had been troublesome, and also that he agreed with her that they were a danger in that field. These conversations were denied by the groom - at least, he denied that he ever made any such admission to the plaintiff. Evidence was also given of a somewhat similar admission made to Mr Stiff, the solicitor's clerk in charge of the case for the plaintiff. He said that he had a conversation with the groom at the time when the writ was served. Again in relation to that conversation the groom denied in evidence that he made any such admission as alleged.

7

The learned Judge, however, accepted the evidence given by the plaintiff and Mr Stiff in regard to those admissions. He said in the course of his Judgment; "I am satisfied that this plaintiff was a truthful and an accurate witness, and that this accident happened exactly as she states. I am equally satisfied that Mr Bateman" - that is, the groom - "is not a reliable witness, and that in fact he told both her and Mr Stiff that those horses were troublesome, and had been troublesome at times, and that he told her they were a danger in his view in that field. I have no doubt whatever that he put the blame for putting thorn in the field containing the right-of-way on Mr Cooke". Mr Cooke, I would add, is the representative of the first defendants

8

The plaintiff's case was supported by some evidence given by Mr Walpole, a senior aircraftsman in the Royal Air Force, who said that something similar had occurred on two occasions shortly before Easter Monday when he was walking along that same footpath with his wife. On those occasionshe said that the fillies came galloping towards them and came very close, prancing round his wifeand himself, but in fact on neither of those occasions was either he or his wife struck or hurt in any way. He said, however, that his "Wife, who was pregnant at the time, was very frightened, and on one of the two occasions took refuge amongst some trees at the side of the footpath which can be seen in one of the photographs. The plaintiff's case was further supported by some evidence given by Captain Hobbs, the secretary of the Eurley Hunt, and a man who had had a life-long experience of horses as a trainer. He expressed the opinion, in the light of the description of the incidents given in evidence, that these fillies were merely being playful and behaving in exactly the way that you would expect of fillies of that class. But he further expressed the view that it was undesirable to place fillies of this class loose in a field through which a public footpath ran.

9

The case for the defendants was that both these fillies were completely docile creatures. The defendants' evidence was that the two fillies had been regularly kept in this field day by day for many months before the incident complained of, and were kept there for another six months or so afterwards. It was said that they were brought to and fro between the field and the defendants' farm daily, being led by a halter. For the purpose of this journey they had to be led along a public road carrying quite a considerable volume of traffic. No trouble, it was said, was experienced in the course of doing these daily journeys. The defendants further said that, apart from this complaint by the plaintiff, they had never received any other complaint in relation to these fillies being kept in this particular field. It is to be remarked in that connection that there was no evidence to show that the incidents relating to Mr and Mrs Walpole were ever brought to the attention of the defendants. It was said that these fillies were regularly fed by the local school children, and it may very well be that this circumstance would account for any tendency they may have had to run towards people whom they saw in the field. The learned Judge did accept the defendants' case to the extent of finding that thesefilles were in no sense vicious, but that their behaviour was merely playful. He said: "In my judgment these two fillies, only a year old, were as playful as one might expect. They were not vicious in the accepted sense, but they had a avery natural propensity - from the point of view of a member of the public unaccustomed to horses it might be called a malicious propensity - to gallop up to and gather round people who walked across the field. No doubt they did not always do it, particularly if the pedestrians were familiar to them, but if they were in the mood they would gallop up until they were very close before swerving away. I desire to make it quite plain that I acquit them of any intention to injure anyone. As Mr Cooke himself said, young horses may fail in the proper control of their limbs. I have not the slightest doubt that this young racehorse was merely playing and had got too close and knocked over the plaintiff without the slightest intention of causing her injury. The whole scene, both in her case and in that of the Walpoles, is typical of what one might expect of young animals of this sort of breeding".

10

The Plaintiff's case, both on the pleadings and in argument, was put forward in two alternative ways. First, it was said that this particular filly which caused the injury was a dangerous animal to the knowledge of the defendants, that is to say, scienter. Accordingly, it was claimed that the defendants were under a strict liability to see that the filly did not injure any person; indeed, they were under the same liability as they would be in the case of an animal ferae nature Alternatively, it was contended that the defendants were liable in negligence, on the basis that the incident which occurred was one that they could and ought reasonably to have foreseen, and consequently ought to have guarded against.

11

I think it is important to bear in mind the distinction between the two ways in which the Plaintiff's case was put, for in so far as it was put on the first ground, it seems to me that the place where the incident happened is entirely irrelevant. Wherever the place was, it would be the duty of the defendants, if the animal in question were a dangerous animal, to keep it in so that it could notcome Into contact with any human being. If, on the other hand, the case is framed in negligence, then it becomes very material to consider the place where the incident occurred. As I have already indicated, it took place on a public footpath, that is to say, on a highway; and in those circumstances the duty of the defendants must...

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