Flack v Hudson and another

JurisdictionEngland & Wales
Judgment Date06 November 2000
Judgment citation (vLex)[2000] EWCA Civ J1106-2
Docket NumberNO: A2/1999/1241
CourtCourt of Appeal (Civil Division)
Date06 November 2000

[2000] EWCA Civ J1106-2








Lord Justice Otton

Lord Justice Keene and

Mr Justice Maurice Kay

NO: A2/1999/1241

Leslie Keith Flack
Paul S Hudson
Stephen John Custance

MS SUSAN RODWAY (instructed by Prettys, 25 Elm St, Ipswich, Suffolk 1P1 2AD) appeared on behalf of the Appellant

MR CHRISTOPHER GARDNER QC (instructed by Dawborns, Bank House, King's Staithe Square, King's Lynn PE3 01RD) appeared on behalf of the Respondent

Monday, 6th November 2000


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.


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.


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;"


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.


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.


On the morning of the accident Mrs Flack was riding Sebastian along Litcham Road, Dunham in Norfolk.


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.


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.


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."


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�"


Section 6(3) provides:

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

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


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."


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.


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.


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."


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.


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.


There is a cross-notice in respect of the construction of the word "keeper" to which I shall return at a later stage.


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...

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5 cases
  • Mirvahedy v Henley
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 November 2001
    ...that where there was an established breed, normality should be judged by reference to others of that breed. The Court of Appeal case of Flack v Hudson [2001] 2 WLR 982 held that one keeper, the owner, could be liable to another keeper, the rider, when a horse with a tendency, known to the ......
  • Mirvahedy v Henley
    • United Kingdom
    • House of Lords
    • 3 February 2005
    ... ... Mirvahedy (FC) (Respondent) and Henley and another (Appellants) [2003] UKHL 16 ... The Appellate Committee comprised: ... ...
  • Turnbull v Warrener
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 3 April 2012
    ...resonance in the present case. Of course it does not mean that every injured rider of competence will be defeated by section 5(2). Flack v Hudson [2001] QB 698 is an example of section 5(2) not availing the horse owner – she knew of the specific risk-creating characteristic (fear of agricul......
  • Sally Bodey v Gillian Hall
    • United Kingdom
    • Queen's Bench Division
    • 5 August 2011
    ...that, assuming she did go into this yard, she accepted the risk." 41 In my view the facts of this case are distinguishable from those in Flack v Hudson [2001] QB 698 where at first instance and in the Court of Appeal the exception based on the voluntary acceptance of risk failed. In that ca......
  • Request a trial to view additional results

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