Mirvahedy v Henley
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD WALKER OF GESTINGTHORPE,LORD SLYNN OF HADLEY |
| Judgment Date | 03 February 2005 |
| Neutral Citation | [2005] UKHL 7,[2003] UKHL 16 |
| Court | House of Lords |
| Date | 03 February 2005 |
and another
[2003] UKHL 16
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
My Lords,
Shortly after midnight on the night of 28-29 August 1996 Hossein Mirvahedy was driving home from his work as manager of a hotel in Devon. He was driving along a dual carriageway stretch of the £80 from Torquay to Exeter. His car came into collision with a horse when it ran across the road and crashed into the car. He suffered serious personal injuries.
The horse belonged to Andrew and Susan Henley. It had escaped from the field where it was kept. Dr and Mrs Henley lived about a mile from where the accident occurred. In an adjacent field they kept three horses, of which the horse involved in the accident was one. On the night of the accident all three horses stampeded out of a corner of their field. They pushed over an electric wire fence and a surrounding wooden fence, and then trampled through a strip of tall bracken and vegetation. Something seems to have frightened them very badly, but nobody knows what it was. The horses fled 300 yards up a track and then for a distance of almost a mile along a minor road before reaching the busy £80 road.
Such behaviour is usual in horses when sufficiently alarmed by a threat. They attempt to flee, ignoring obstacles in their way, and are apt to continue in their flight for a considerable distance, even beyond the point where the perceived threat was detectable.
Mr Mirvahedy brought a claim against Dr and Mrs Henley as keepers of the horse. He based his claim in negligence. He said Dr and Mrs Henley had not fenced the field properly. The judge, Judge O'Malley sitting in the Exeter County Court, rejected this claim. No appeal was pursued from this decision. Mr Mirvahedy also advanced a claim under section 2 of the Animals Act 1971. He asserted that, even if they were not at fault, Dr and Mrs Henley were liable for the damage caused by their runaway horse. Under the Animals Act they were strictly liable. They were liable independently of fault. That claim, too, failed before the judge. It succeeded on appeal to the Court of Appeal: see [2001] EWCA Civ 1749, [2002] 2 WLR 566. The court comprised Dame Elizabeth Butler-Sloss P and Hale and Keene LJJ. Dr and Mrs Henley then appealed to your Lordships' House.
The appeal raises one question: is the keeper of an animal such as a horse strictly liable for damage caused by the animal when the animal's behaviour in the circumstances was in no way abnormal for an animal of the species in those circumstances?
Lest there be any misunderstanding one point should be clarified at the outset. Considered as a matter of social policy, there are arguments in favour of answering this question yes, and arguments in favour of answering no. It may be said that the loss should fall on the person who chooses to keep an animal which is known to be dangerous in some circumstances. He is aware of the risks involved, and he should bear the risks. On the other hand, it can be said that, negligence apart, everyone must take the risks associated with the ordinary characteristics of animals commonly kept in this country. These risks are part of the normal give and take of life in this country.
These considerations, and other arguments of this nature, are matters for Parliament. They are not matters for this House acting in its judicial capacity. It is not for the courts to form a view on which of these arguments seems the more weighty when Parliament has already carried out this exercise. Parliament must be taken to have weighed the various factors, and balanced the conflicting interests of those who keep animals and those who are injured by them, when enacting the Animals Act 1971. The answer to the question I have posed lies in interpreting the provisions of this Act, and in particular section 2(2), in accordance with established principles of statutory interpretation.
The common law concerning liability for animals was notoriously intricate and complicated. How the common law would have answered the question raised by this appeal is not altogether clear. The common law may have drawn a distinction between a domestic animal which, contrary to the nature of its species, has a propensity to attack (a 'vicious' propensity), and a domestic animal which, without a propensity to attack, has a special propensity to cause damage. Strict liability, under the old 'scienter' principle, may have been applicable only in the former case: see the discussion in the report of the Law Commission on Civil Liability for Animals (1967) (Law Com no 13), paragraph 6, page 7, and the seemingly differing views of Willmer LJ and Diplock LJ in Fitzgerald v E D and A D Cooke Bourne (Farms) Ltd [1964] 1 QB 249, 258-259, and 270.
The purpose of the Animals Act 1971 was to simplify the law. Sections 1 to 6 of the Act made new provision regarding strict liability for damage done by animals. They replace the old rules of the common law. Section 2 contains provisions relating to liability for damage done by dangerous animals. Unfortunately the language of section 2(2) is itself opaque. In this instance the parliamentary draftsman's zeal for brevity has led to obscurity. Over the years section 2(2) has attracted much judicial obloquy.
Section 2 places all animals into one or other of two categories, according to their species. Animals either belong to a dangerous species, or they do not. The circumstances in which the keeper of an animal is liable for damage caused by his animal depend upon the category to which the animal belongs.
A dangerous species of animal is a species which meets two requirements, set out in section 6(2). A species can include a sub-species or a variety: see section 11. The first requirement (a) is that the species is not commonly domesticated in the British Islands. The second requirement (b) is that fully grown animals of the species 'normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe'. In short, they are dangerous animals.
A tiger satisfies both requirements. It is not commonly domesticated in this country, and it is dangerous. A horse does not satisfy the first requirement. Unlike tigers, horses are commonly domesticated here. So tigers, satisfying both requirements, are a dangerous species of animals. Horses, which do not satisfy the two requirements, are not.
Section 2 of the Animals Act 1971
Section 2(1) imposes upon the keeper of an animal of a dangerous species strict liability for any damage caused by the animal:
'(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.'
If you choose to keep a dangerous animal not commonly domesticated in this country, you are liable for damage done by the animal. It matters not that you take every precaution to prevent the animal escaping. You may not realise that the animal is dangerous. Liability is independent of fault. Liability is independent of knowledge of the animal's dangerous characteristics. You are liable, subject only to certain defences of general application set out in section 5. These defences apply where the damage was due wholly to the fault of the claimant, or where the claimant voluntarily accepted the risk of damage or was a trespasser.
Section 2(2) established a different regime where damage is caused by an animal not belonging to a dangerous species. This subsection applies, therefore, to all species of animals commonly domesticated here. It includes horses. The material part of section 2(2) provides:
'(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 …'
In the present case nothing turns on requirement (a). It is accepted that this pre-condition of liability is satisfied. Similarly with requirement (c): the judge found that this requirement was satisfied in this case, and his finding has not been challenged.
The crucial requirement is requirement (b). Requirement (b) is concerned, in short, with the source of the animal's dangerousness. If requirement (b) is to be met, the dangerousness of the animal, as described in requirement (a), must be attributable to the animal having characteristics falling within one or other of two classes. The first limb of paragraph (b) identifies one class. The animal must have characteristics 'which are not normally found in animals of the same species'. The second limb of paragraph (b) identifies the other class of qualifying characteristics. The animal must have characteristics which are not normally found in animals of the same species 'except at particular times or in particular circumstances'.
Both these classes, it can be noticed at once, are described in terms of abnormality. The first class is that the particular animal has characteristics not normally found in animals of the same species. Unless the...
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