Mirvahedy v Henley
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD JUSTICE KEENE,THE PRESIDENT |
| Judgment Date | 21 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1749 |
| Docket Number | Case No: B3/2001/0172 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2001 |
[2001] EWCA Civ 1749
The President Of The Family Division
Lady Justice Hale and
Lord Justice Keene
Case No: B3/2001/0172
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(HIS HONOUR JUDGE O'MALLEY)
Royal Courts of Justice
Strand,
London, WC2A 2LL
C Sharp QC and R Stead (instructed by Anstey, Sargent & Probert) appeared for the appellant R Lissack QC and D Westcott (instructed by P Jane M.D Phillips) appeared for the respondents
The claimant appeals from the order made by His Honour Judge O'Malley in the Exeter County Court on 17 August 2000. The judge dismissed his claim for personal injuries suffered when the car he was driving was in collision with a horse belonging to the defendants which had escaped from its field. The judge found that the defendants were not negligent, and there is no appeal against that finding. He also found that there was no liability under section 2(2) of the Animals Act 197The precise scope of that liability has caused considerable difficulty and differing views have been expressed in this court about it. We have had the benefit of careful argument by leading counsel on each side, who have cited to us every known authority on that section in this and the High Court, together with the preceding report of the Law Commission and the relevant Parliamentary debates (which we have considered for the reasons explained in paragraph 24).
The facts and the decision
The defendants kept one horse and two ponies in a six acre field near their home. Charlie Brown was a New Forest pony of 14.1 hands, 26 years old at the date of the accident. Holmdown Majestic, known as Jester, was a horse of 15.2 hands, then five years old. Tango was a Dartmoor pony of 11.2 hands, also five years old. Some time during the night of 28 to 29 August 1996 they escaped from the field, breaking through an electric fence, a barbed wire fence and some undergrowth, and made their way up a track to a minor road and then onto the main A380 Torquay to Exeter road. This is a dual carriageway with trees and bushes in the central reservation.
At about half past midnight, the claimant was driving home along that road from his work as manager of a hotel in Torquay towards Exeter. He saw a loose horse in the road ahead of him and slowed down from 60 mph to about 30 to 40 mph. A second horse, which he had not seen, crashed into him. The horse was killed, his car was severely damaged and he suffered serious personal injuries. Shortly before this, another of the horses had collided with a car driving south towards Torquay, injuring the passenger Mr Teo, and was also killed. Tango survived and was found next morning in a field where someone had placed him, still very distressed and frightened of passing cars.
The judge considered the evidence about the state of the fencing before the escape, the views of the parties' experts about its adequacy, and the various theories put forward as to why the horses had escaped. By the end of the evidence, neither human nor canine intervention was thought likely. They had escaped because of
'some event which occurred while the horses were in the corner of the field which prompted considerable movement on their part. This is evidenced by the unusual and extensive area of trampling right into the apex of the corner … the breaking of the corner post indicates that there was … a high energy impact which took place as the horses were close together so that they exited the field together trampling the vegetation between the corner and the lane. It is not possible to determine what precisely caused the horses to behave in this way.'
The judge preferred the evidence of Mr Lane, the defendant's expert, to that of Mr Roberts, the claimant's expert, about the state of the fencing. He concluded that the 'these normally docile horses were adequately contained by the fence in question.' In effect they had been panicked by some unknown event into behaving in a way which was unusual for them. There was therefore no liability in negligence.
Section 2(2) of the Animals Act 1971 however imposes a strict liability. It reads as follows:
"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 …"
The judge considered that (a) was satisfied: even if the likelihood of these horses causing personal injury unless restrained was remote, there was a likelihood that such injury, if caused, would be severe. The first limb of (b) was not satisfied, because the horses were displaying characteristics which were normal for horses. However, although normal they were manifested at particular times and in particular circumstances, that is when the horses were panicked. Following the decisions of this court in Cummings v Granger [1977] 1 QB 397 and Curtis v Betts [1990] 1 WLR 459 he therefore concluded, with obvious reluctance, that the second limb of (b) was satisfied. The second defendant had readily agreed that, as an experienced horsewoman, she was well aware that horses will run away if frightened, may be oblivious to obstructions, and once out of their field may wander considerable distances. Hence (c) was also satisfied.
Nevertheless, he found for the defendants on the ground that it was not those characteristics which had caused the damage. There was not the same degree of immediacy in the interaction between the characteristics relied upon and the doing of the damage as was present in the reported cases where liability had been found. He relied upon Jaundrill v Gillett, Court of Appeal, unreported 16 January 1996, where the damage was found due to the presence of the horses on the road rather than to any abnormal or unusual characteristics they displayed.
The claimant appeals against that finding. This is the 'causation issue'. The defendants cross appeal against the finding that the condition in section 2(2)(b) of the 1971 Act is made out when animals behave in a way which is normal for their species but only in particular times or particular circumstances. This is the 'characteristics issue'.
The causation issue
It is common ground that there must be a causal connection between the characteristics concerned and the damage suffered. Indeed, the Parliamentary history makes this plain. Clause 2(2) of the draft Bill appended to the Law Commission's Report, Civil Liability for Animals (Law Com No 13, 1967) provided thus:
"Where damage of any kind is caused by an animal which does not belong to a dangerous species, and –
(a) the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind or that any damage of that kind that it may cause is likely to be severe; and
(b) those characteristics are known or treated as known to a person who is a keeper of the animal;
that person is liable for the damage, except as otherwise provided by this Act."
The Bill was first introduced in 1969 by the then Lord Chancellor, Lord Gardiner. At the Committee stage in the House of Lords, Lord Foot expressed concern that the clause might be read in such a way as to impose liability for damage of any kind, even though it was unrelated to any abnormal characteristics of the animal. The Lord Chancellor explained that the damage had to be 'such as is likely to result from these characteristics' or be 'likely to be severe if it does nevertheless result from them' (see Hansard (HL), 27 November 1969, cols 1389 and 1390). The Bill was not passed before Parliament was dissolved for the 1970 general election, but it was reintroduced by the next Lord Chancellor, Lord Hailsham. Clause 2(2) now took the form eventually enacted. The Attorney General, Sir Peter Rawlinson, explained at the second reading committee in the House of Commons that this was to meet the point raised by Lord Foot: 'Clause 2 provides that where an animal has mischievous propensities, the keeper is liable only for such damage as is due to such propensities. This was a change … ' (see Official Report, Second Reading Committee, 27 January 1971, col 738).
Mr Sharp QC, for the appellant claimant, argues that the damage caused here was indeed due to the very characteristics identified in the pleadings of both parties. These were most plainly put on behalf of the claimant in his Further Information:
"(a) the characteristics which will be relied upon are those of a horse … to bolt/run into obstacles when in flight/break or knock down obstacles/break out of its field run or wander away from its field having broken out and travel with/follow other horses whilst so doing. Horses in their natural state run together in herds over open and unlimited areas. When frightened or terrified domesticated horses will run together or singly regardless of obstacles in their path and will continue to flee from the perceived peril until after the peril has disappeared. Thereafter they will wander freely unless restrained."
The defendants, in their Further Information, said much the same thing when asked to state 'the precise behaviour which it is alleged is...
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