Martyn Williams (Respondent/Claimant) v Jeffrey Llewellyn Hawkes (Executor of the Estate of Derfyl Llewellyn Hawkes, Decease)

JurisdictionEngland & Wales
JudgeLord Justice Davis,Lord Justice Hickinbottom
Judgment Date21 November 2017
Neutral Citation[2017] EWCA Civ 1846
Date21 November 2017
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B3/2016/1520

[2017] EWCA Civ 1846

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Cardiff County Court

Mr Recorder Lloyd Williams QC

A93YP887

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Davis

and

Lord Justice Hickinbottom

Case No: B3/2016/1520

Between:
Martyn Williams
Respondent/Claimant
and
Jeffrey Llewellyn Hawkes (Executor of the Estate of Derfyl Llewellyn Hawkes, Decease)
Appellant/Defendant

Robert O'Leary (instructed by Marchant Harries Solicitors) for the Appellant

Catherine Collins (instructed by Slater & Gordon (UK) LLP) for the Respondent

Hearing date: 9 November 2017

Lord Justice Davis

Introduction

1

On 17 December 2011 a car driven by the claimant, Mr Martyn Williams, collided with a Charolais steer on a dual carriageway section of the A465 road at Glynneath Bank near Port Talbot. He suffered significant injuries, although fortunately not life-threatening. The steer itself was killed.

2

In due course he commenced proceedings against the estate of Mr Derfyl Llewellyn Hawkes, a local farmer who had been the owner and keeper of the steer. The claim was framed both in negligence and under the Animals Act 1971 ("the 1971 Act"). Damages claimed were limited to £50,000.

3

After a trial on liability in the Cardiff County Court, the judge, Mr Recorder Lloyd Williams QC, dismissed the claim in negligence. But he found in favour of the claimant and against the defendant under the 1971 Act. The decision was given on the 23 March 2016. Directions were given at that stage for a further hearing before a District Judge on quantum.

4

The defendant now appeals against that decision on liability with leave granted by Treacy LJ. The appeal involves, among other things, close consideration of s.2 of the 1971 Act set in the context of the facts of the case. That section has received much judicial and other criticism over the years, which does not need further exposition here: suffice it to say that the wording of the section is marked by both linguistic and conceptual obscurity. In the event, the particular focus of the argument before us on this appeal has been on causation. The appeal itself was heard by us sitting in Cardiff.

Background Facts

5

The facts are set out with exemplary thoroughness and lucidity by the judge. They can be summarised as follows.

6

At around 6 pm on the evening of 17 December 2011, in the hours of darkness, Mr Williams was driving on the A465 in the direction of Merthyr Tydfil. There was no lighting on that section of the road and he was using his headlights. He was driving a Ford Mondeo belonging to a Mr Clement. There was no suggestion pursued at trial that Mr Williams was driving too fast or that the car was in anything other than proper condition or anything like that. No defence of contributory negligence was pursued at trial.

7

By Glynneath Bank the car came into contact with a steer which was on the inner (left) lane of the dual carriageway. Mr Williams himself suffered amnesia as a result of the accident, as well as other injuries, and had no recollection of events.

8

At the time a car driven by a Mr Bryant was driving about four car lengths behind Mr Williams. He estimated that both were travelling at about 45mph. He then noted the car ahead undergoing sudden and heavy braking. Mr Bryant also braked hard and swerved to the right. As he did so he heard a loud bang and saw what he described as a cow being thrown up from the front of the car ahead. The animal appeared to land on the roof. The Ford Mondeo then came into contact with the bank at the side of the road some yards further up the road. The car was very extensively damaged.

9

The steer was killed by the impact. It was subsequently found lying at an angle on the inner lane of the carriage way. A witness was later to note that it had "bits of fencing and wood tangled in its coat."

10

As it happened, the police had already received reports of a cow loose on the road. Mrs Maria Richards had been travelling on that road with her husband and young daughter. She explained in an agreed witness statement that they had had to swerve to avoid a cow (as she described it) on the inner lane of the carriageway. They then pulled in and commendably contacted the police on their mobile telephone. The police arrived at the scene of the accident (they already being on their way as a result of that and other calls received) at 6.13pm. Mr Bryant had himself by now reported the accident.

11

The steer had belonged to Mr Derfyl Hawkes. He lived and farmed at a small farm called Pencomin Farm and had done so for many years. The farm itself was, in direct terms, about a mile and a half from this section of the A465.

12

Mr Hawkes had bought the steer, and two others, at a cattle market at Llandovery the previous day (16 December 2011). His brother had been there with his son, Mr Jeffrey Hawkes (Mr Hawkes Junior), to purchase them on his behalf. The steer was a Charolais, as was one of the others (the third was a Belgian Blue). They were large and heavy animals, each weighing between 370kgs and 380kgs. The undisputed evidence was that Mr Hawkes Senior was an experienced and knowledgeable beef cattle dealer. The judge accepted evidence to the effect that he was experienced and reliable in the handling and keeping of cattle (including Charolais). Mr Hawkes Junior was also knowledgeable and experienced in handling cattle.

13

Mr Hawkes Junior was to say that they would always try and ensure that cattle they purchased were docile and that that was the case here. When they returned from Llandovery the three steers were taken to Pencomin Farm. The farm included a field or paddock of about one acre with some cattle sheds in it. In accordance with good practice the steers were fed and watered and placed in one of the sheds overnight. The following day they were let out into the field: the door to the shed was left open so that they could access hay and water. The judge found as a fact that Mr Hawkes Senior (who lived on the farm) had been checking on the well-being and behaviour of the steers throughout the day.

14

Mr Hawkes Junior had been absent for much of the day, having gone Christmas shopping in Swansea. On his return at some time between 3pm and 4pm (when it was still light) he noticed, from his house which adjoined the field, that one of the steers appeared to be missing: one of the Charolais. He spoke to his father who said that he had been checking on them. Mr Hawkes Junior went to investigate. He noticed, in the furthest corner of the field, skid marks leading up to the fence and damage to the fence and an adjoining gate, indicative of the steer having jumped the fence (which was some 6 foot high). In the light of the agreed expert evidence, the judge found – although he had considered it somewhat surprising – that the steer had succeeded in jumping the fence. He also found that the fencing was "entirely appropriate". It is sufficient here to say that to the extent that any claim in negligence was pursued at trial it was rejected by the judge; and there is no appeal from that conclusion.

15

The judge further found that the steer must have jumped or forced its way through a number of hedges or fences before it reached the road. Quite what route it had followed was not, however, established.

16

At all events, Mr Hawkes Junior and his daughter went to look for the steer but could not find it. They also telephoned around, unsuccessfully. This was the first experience of an escape of an animal from the farm. Later that evening, however, he received a report of a dead animal on the A465. He drove there and saw a steer lying dead at the roadside. It was the Charolais steer which had escaped from the field at Pencomin Farm.

17

Mr Hawkes Senior died in May 2012, at the age of 89.

Expert Evidence

18

The claimant called Professor Eddison as an expert witness. The defence had instructed Mr Greetham. Prior to the trial, and after exchange of reports, the experts had met. There was in truth relatively little between them and they submitted a detailed agreed joint memorandum before trial, dated 13 January 2016. Professor Eddison gave oral evidence at trial and was extensively cross-examined. Mr Greetham was not called to give oral evidence. The judge was impressed by Professor Eddison as a witness.

19

All were agreed that something had startled, or "spooked", the steer causing it to leap the fence and escape. Quite what that was was never identified.

20

It was said in the written report of Professor Eddison that Charolais steers could be "flighty" – that being explained as connoting a rapid response to an unexpected event and the taking of avoiding action to avoid what was described as an "averse stimulus". Such stimuli could include, for instance, being in a strange place, a loud noise, a sudden light in darkness, disturbance by an animal such as a dog and so on.

21

Professor Eddison said that once the steer had jumped the fence it would have been very frightened, being alone in a strange environment. That fright, and accompanying unpredictable behaviour, would have continued as it made its way over or through other fences or hedges. He was much pressed with the proposition that as the road was, in direct terms, no more than about a mile and a half from the farm the effect of the original averse stimulus (whatever it was) would have been superseded by the time it got onto the road some two hours later. Professor Eddison rejected that. He said that, in his opinion, its frightened and unpredictable behaviour would have continued throughout. Indeed, when on the road the problem would have been exacerbated by the lights and noise of passing cars, which would have been inexplicable to the steer. All these could be further averse stimuli resulting in wholly unpredictable reactive behaviour on the part of the steer....

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