Lynch (Claimant/Appellant) v ED Walker Racing Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Langstaff
Judgment Date15 June 2017
Neutral Citation[2017] EWHC 2484 (QB)
Docket NumberCase No: QB/2017/0032

[2017] EWHC 2484 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Langstaff

Case No: QB/2017/0032

Between:
Lynch
Claimant/Appellant
and
ED Walker Racing Ltd
Defendant/Respondent

Mr Snell (instructed by Royds Withy King Solicitors) appeared on behalf of the Claimant

Mr Hand (instructed by Knights) appeared on behalf of the Defendant

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Mr Justice Langstaff
1

This is an appeal against the judgment of HHJ Lindsay Davies in the County Court at Cambridge given following trial on 25 January 2017.

The Facts

2

The claimant was a stable lad at Newmarket. On the day of accident which he suffered, 28 April 2014, he was riding a two-year-old colt as one of nine horses in a string of horses approaching the Moulton Road along a sand track. At a point at which to the left of the string there was a grassy bank, the lead horse was spooked by something. That had a domino effect. Each of the following horses, of which the claimant's horse, Wolfofwallstreet, was fourth or fifth in line, spooked and whipped round. The claimant's horse first whipped left and then right.

3

Having whipped right, it lost its footing because of the presence of the nearby bank, perhaps, and fell onto its left side. The claimant, who had managed to maintain his saddle during the whipping round, was caused to fall off by the fall of the horse. As a consequence of the fall, he hit his head and lost consciousness such that during the trial he could not recollect the precise circumstances of nor immediately prior to the accident.

Authorities

4

He claimed damages for the injury which he had suffered. That claim was brought to trial under the provisions of the Animals Act 1971. As is well-known, the Act provides for strict liability for injuries caused by animals, at least where they are dangerous. Section 2 provides under the heading, "Liability for Damage Done by Dangerous Animals" 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 …"

5

This appeal does not concern section 2(1) because a horse which, it was said, was the cause of the accident is not a dangerous species. Nor does it concern section 2(2)(b) or 2(2)(c), each of which was not in dispute. The issues focused upon section 2(2)(a). I shall come back to the provisions of the Act in greater detail but, first, need to set out other relevant provisions.

6

Section 5 deals with exceptions from liability which are featured in some of the reported cases. They are not relevant on this appeal. There is a general interpretation provision at section 11 in which damage is defined as, "includes the death or injury to any person (including any disease and any impairment of physical or mental condition)". It is thus plain that "damage" relates to the type of damage as opposed to the particular circumstances in which the damage occurs. It may be damage to property but it can be, and in this case it is said was, personal injury.

7

The provisions of section 2(2)(b) of the Act have been described in uncomplimentary terms by almost every appellate court which has had to consider them. In one of the authorities, Jackson LJ referred to the provisions as "grotesque". I certainly do not wish, nor could I, add to the learning demonstrated by previous Courts of Appeal or the House of Lords which considered section 2(2)(b) in the case of Mirvahedy v Henley (2003) UKHL 16 but draw the following propositions from the various cases to which this court has been referred.

8

First, that section 2(2)(b) has two limbs to it. The likelihood of damage or it being severe is due to characteristics of an 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. That led Jackson LJ in Goldsmith v Patchcott (2012) EWCH Civ 183 to observe, albeit obiter, that subsection 2(b) has the effect, as recognised in Mirvahedy v Henley, that it would be satisfied whenever the animal's conduct was not characteristic of the species in the particular circumstances but will also be satisfied when the animal's behaviour was characteristic of the species in those circumstances (see paragraph 36).

9

Second, it is common ground that for there to be liability the claimant has to establish (the burden of proof resting upon him) first that the proposed defendant is the keeper of the animal — not in dispute here — and each of (a), (b) and (c), in turn, under section 2. It is not necessary for each of those steps or requirements to be taken sequentially beginning with (a) but it is necessary that each be satisfied. The principal authorities, although they have from time to time considered the requirements of 2(2)(a), which plainly inter-relate to some extent with 2(2)(b), have not considered section 2(2)(b) as such.

10

Those cases which have considered section 2(2)(a), to which I have been referred, begin with the case of Smith v Anger, a decision of the Court of Appeal, Neill, Woolf and Butler-Sloss LJJ, of 16 May 1990. That was a case in which a large dog, described as a large, dark grey, long-haired Alsatian cross, lunged at a dog which the plaintiff had with him, and when it did so, caused the plaintiff to trip or lose his balance near to the edge of the pavement and to fall onto the road, suffering injury.

11

In the course of the judgment, at page 3, Neill LJ, whose judgment was concurred in by the other two members of the court without adding to the law he proposed, dealt with paragraph (a) in these terms:

"It will be seen that paragraph (a) can be satisfied in two quite separate ways: (1) if the damage is of a kind which the animal, unless restrained, was likely to cause, or (2) if the damage is of a kind which, if caused by the animal, was likely to be severe.

The words, 'was likely' give rise to difficulty. In many contexts, 'likely' means 'probable' or 'more probable than not'. But in other contexts, it may have a wider meaning so that a likely event includes an event 'such as might happen' or 'such as might well happen' or 'where there is a material risk that it will happen' as well as events which are 'more probable than not'.

In the present context, in passing, I note those four words, I consider that the wider meaning is to be preferred. It seems to me that Parliament cannot have intended that a keeper of a dog with a known propensity to bite strangers could escape liability by establishing that only 40 per cent of such persons had been bitten in the past. Moreover, such a construction would represent a radical departure from the old law."

12

That reason, so far as it went, was material to the decision in that case. The case was cited in Mirvahedy v Henley before the House of Lords. In that case, the claimant suffered personal injury when the car he was driving came into collision with the defendant's horse. The defendant's horse was on the roadway because it had panicked, due to some unknown event, and had escaped with two others from the field where it had been. The judge found that the field had been adequately fenced and held that the horse had displayed characteristics normal for its species within the particular circumstances within the second limb of section 2(2)(b). The Court of Appeal allowed an appeal. In doing so, it took a particular view of section 2(2)(b) which differed from the view which had been taken by two earlier constitutions of the Court, although the view was not without its own support in the Court of Appeal, hence the House of Lords determining the issue. The House, by a majority of three to two, upheld the approach taken by the Court of Appeal.

13

The case, therefore, turned upon section 2(2)(b). It was considering the meaning of what was normal behaviour for the species in particular circumstances. Lord Scott was one of those two judges who dissented in the result. In the course of his judgment, however, he considered section 2(2)(a)....

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