McKenny and Another v Foster t/a Foster partnership
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,Moore-Bick LJ: |
| Judgment Date | 06 March 2008 |
| Neutral Citation | [2008] EWCA Civ 173 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 2008 |
| Docket Number | Case No: B3/2007/1303 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HIS HONOUR JUDGE COCKCROFT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lord Justice Laws and
Lord Justice Moore-Bick
Case No: B3/2007/1303
5BR01304
Mr Simon Edwards (instructed by MTA Solicitors) for the Appellant
Mr Douglas Herbert (instructed by Messrs Beachcroft Llp.) for the Respondent
Hearing dates : 16 th January 2008
Approved Judgment
Introduction
On 27 th April 2002, at 9.25 in the evening, there was a tragic motor car accident on the A614 Driffield Bypass near Bridlington. A Vauxhall Vectra driven by the first claimant, Helen McKenny, collided with a cow which had escaped and strayed onto the road, upon which at the moment of collision it was quite stationary. Derek Shaw, Ms McKenny's passenger and partner, was killed, as was the cow. Ms McKenny was injured. She and Derek Shaw's estate bring this claim against the defendant farmers, whose cow it was.
At the time of the accident, it was dark. Ms McKenny was driving within the speed limit. A defence case that her negligence contributed to the accident was summarily rejected by HH Judge Cockroft, who heard and decided the claim in the Leeds County Court on 15 th May 2007.
The claimants for their part contended that the cow's escape resulted from negligence of the defendants. This case also failed upon findings of fact which I shall summarise. There is no appeal against this part of the judge's decision. The judge also rejected the claimants' case that the defendants were strictly liable under section 2 of the Animals Act 1971. The claimants appeal against this part of the judge's decision with the judge's permission.
Facts
The cow's escape was extraordinary.
Little Houndales Farm is to the north of the A614. A straight concrete farm lane leads from the highway to the farm buildings. At the highway end of this lane is a substantial, well built cattle grid some 12 feet in length measured along the line of the lane. There is no way for large animals around the side of the cattle grid.
The farm buildings are about 100 yards along the lane away from the highway. A cluster of buildings on the left hand side includes a substantial byre, in which the defendants keep cows and their calves over the winter. To the right of the lane is a bungalow, the home of Peter Foster, and Bungalow Field. To the left of the lane and partly surrounding the farm buildings is Front Field. At the south east corner of the farm buildings' enclosure is a gate leading from Front Field onto the lane, which is opposite a gate leading from the lane into Bungalow Field. Bungalow Field is a properly enclosed and properly gated field entirely suitable for containing the defendants' cows.
In April 2002, the defendants had 22 suckler cows on the farm. The unnamed cow that escaped was a Limousin cross bred for beef, not milk. During the winter of 2001/2 she had been in the byre with her third calf, which was 6 to 7 months old at the time of the accident. The cow was by then in calf again for the fourth time. She was known to be of good temperament. On the day of the accident, she had been brought out from her winter quarters and weaned from her calf, which remained in the byre. The cow was put into Bungalow Field, walking there around and along the perimeter of Front Field beside the farm buildings' enclosure and across the lane through the two gates to which I have referred. With the cow in Bungalow Field were 9 other cows, one of which had also been weaned that morning, and a bull. All this was good livestock practice.
The judge said this in paragraph 16–19 of his judgment:
“It was common ground between the parties that when weaned a cow, to varying degrees, may demonstrate a maternal instinct. She may wish to rejoin her calf. When first enclosed in her summer field she may explore the perimeter looking for a means of escape. She may display agitation. Her calf on this occasion was near enough to be heard if calling out, and to be smelt.
Neither the crossbreed of this cow in general, nor this cow in particular, was known to experience an abnormal reaction upon weaning. She had twice previously been weaned of calves without any abnormal reaction or untoward event. She had certainly never escaped before.
On this occasion she walked to the boundaries of the field, finding no gaps or apparent means of escape. There may have been some calling between mother and calf, although Peter Foster told me, “it was less than I expected”, but the mother settled down in placid company and showed no sign of distress or agitation. She was adequately supervised during the day by the Defendants.
The boundaries of Bungalow Field were the most secure of any field on the farm. It is unnecessary to describe their precise composition, or even the height of the mixture of hedges, fences, wiring, wall and gate, because it was ultimately conceded that all were beyond criticism.”
On the day of the accident, Peter Foster and his brother Mark were on the farm all day. The two cows who had been separated from their calves showed no signs of distress. For about three quarters of an hour before finishing work, Peter Foster used a hand mower to cut his lawn which was beside Bungalow Field. The cattle were moving round the field normally. When he came in at 8.30 p.m. the animals were calm. The calves were not calling out.
Notwithstanding all this, there was compelling evidence that the cow escaped from Bungalow Field by jumping or clambering over the six barred livestock gate, through which she had earlier entered the field, although the gate's construction and dimensions were entirely beyond criticism. After the accident, the gate was seen to be damaged and sagging and there was animal hair on the top bar of the gate and on the ground at the lane side of the gate. All other perimeter fences of Bungalow field were secure and in order. As the judge said in paragraphs 38 and 39 of his judgment:
“No criticism was made nor could have been made of the gate, and yet the overwhelming probability is that within an hour of Peter Foster finishing work the cow must have jumped or scrambled over it. There was no other means of escape from Bungalow Field.
Nothing like that had ever happened before at the Defendants' farm, neither to this recently weaned cow in calf, nor to any other recently weaned Limousin cross, nor to any other recently weaned cow, nor to any cow at any stage in its lifecycle, nor to any other animal.”
Beyond this fact that the cow must have somehow climbed over the gate, and the fact that at 9.25 p.m. she was stationary on the highway where the accident happened 200 yards to the west of the point where the end of the farm lane is close to the highway, there was no relevant direct evidence. But it was the general consensus of the evidence, especially expert veterinary evidence, that she must have gone down the farm lane towards the highway and jumped over the 12 foot cattle grid – this despite the fact that none of the experts had ever known or heard of a cow crossing a cattle grid. The judge accepted evidence that she did not squeeze through the hedge side of the grid, nor blunder over the grid – if she had, she would have sustained injury and left hair or skin or tissue on the bars of the grid. So, said the judge, “in this realm of wholly improbable behaviour” she either tip-toed across the centre of the grid or jumped its entire length. The claimants' expert favoured the first of these, the defendants' expert, Ms Forsyth, the latter. Eventually it was conceded on behalf of the claimants that Ms Forsyth's theory was, as the judge put it, “far more plausible”, or, as I would be inclined to say, the least implausible of the explanations available on the evidence.
The judge accepted this explanation saying at paragraph 44 of his judgment:
“This cow was in no state, despite good night vision, to make a calm appraisal of this grid, which she had never seen before, to identify its weakest point, and almost in the manner of an acrobat tiptoe along the sleeper. It is probable that she was travelling at some speed down the lane towards the road, saw the grid at the last minute, and reacted by jumping over it. An extraordinary long-jumper as well as an extraordinary high-jumper. This would account for her arriving on the road side of the grid in a relatively unscathed condition and able to continue her escape.”
Why did the cow, who, although she had that day been weaned from her calf, had nevertheless behaved normally and been reasonably calm during the day up to 8.30 p.m., behave in this way? The consensus of the opinion evidence was that she must for some reason have become extraordinarily agitated, quite out of character for her breed and for her judging from her behaviour with her two previous calves and during the day of the accident when she was observed in the field. The consensus of the opinion evidence also was that the explanation for this quite abnormal behaviour lay in her maternal instinct at being separated from her calf.
I confess to having entertained personal doubts during the hearing of this appeal as to some of the inferential explanations offered and accepted by the judge. If the cow was agitated for want of her calf, why, as is inferred, did she go left down the farm lane in the exact opposite direction from the calf, whose whereabouts she would have known from sound and smell. By going right, she could have got...
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Martyn Williams (Respondent/Claimant) v Jeffrey Llewellyn Hawkes (Executor of the Estate of Derfyl Llewellyn Hawkes, Decease)
...there must be a causal link between the characteristic in question and the (likelihood of the) damage caused: see McKenny v Foster [2008] EWCA Civ 173 at paragraph 33 of the judgment of May LJ, (a case itself involving a cow on a highway, albeit it was a case which was ultimately decided on......