Sally Bodey v Gillian Hall

JurisdictionEngland & Wales
JudgeDavid Pittaway QC
Judgment Date05 August 2011
Neutral Citation[2011] EWHC 2162 (QB)
CourtQueen's Bench Division
Date05 August 2011
Docket NumberCase No: HQ10X03129

[2011] EWHC 2162 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

David Pittaway QC

(Sitting as a Deputy Judge of the Queen's Bench Division)

Case No: HQ10X03129

Between:
Sally Bodey
Claimant
and
Gillian Hall
Defendants

Richard Stead (instructed by ASP Aspire LLP) for the Claimant

David Westcott QC (instructed by Greenwoods) for the Defendant

Hearing dates: 11 th, 12th July 2011

David Pittaway QC

Introduction

1

The claim arises out of an accident on 24 November 2005 when Mrs Bodey sustained an injury whilst travelling as a groom in a pony and trap driven by Mrs Hall on a country lane between Cold Ash and Blewbury near Newbury in Berkshire. The horse, Pepper, became startled shortly after Mrs Hall turned off a country lane onto a track and shot forward rapidly with the result that the trap tipped or tilted and both Mrs Hall and Mrs Bodey were thrown out of the trap onto the ground. Mrs Bodey sustained a severe head injury. The action was pleaded in negligence and strict liability under section 2 of the Animals Act 1971. As the trial proceeded the allegation that Mrs Hall had acted negligently was not pursued and reliance was placed solely on section 2 of the Act.

Law

2

The relevant sections of the Animals Act 1971 read:

"2. Liability for damage done by dangerous animals

(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 or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen."

"5 Exceptions from liability under sections 2 to 4.

(2)A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof."

3

The scheme of the Act is to impose strict liability on the keeper of an animal under section 2(1) for any damage caused by an animal which belongs to a dangerous species and under section 2(2) for damage caused by an animal which does not belong to a dangerous species. Section 2(2) contains three requirements which have to be satisfied for strict liability to be established. Section 5 provides for three statutory exceptions. As acknowledged by Lord Denning MR in Cummings v Granger [1977] 1 QB 397 at page 404 F "the section is very cumbrously worded and will give rise to several difficulties". Lord Nicholls of Birkenhead in Mirvahedy v Henley [2003] 491 described it at 504 paragraph 9 as "opaque".

4

It is acknowledged by both parties that section 2(1) does not apply in this case. It is accepted that horses are commonly domesticated in the British Isles. Much of the argument in this case has been about the application of the requirements of section 2(2) (a) and (b) which apply to all species of animals commonly domesticated here. It is accepted by the parties that if section 2 (2) (a) and (b) apply then (c) will apply in this case.

5

The main issues are concerned with whether the second limbs of both section 2 (2) (a) and (b) are satisfied. It is accepted by the parties that the first limbs of section 2 (2) (a) and (b) do not apply.

6

The second limb of section 2 (2) (b) has been subject to argument in a number of previous cases as to whether section 2 (2) (b) applied not only to cases where a normally docile animal behaves out of its usual character at particular times or in particular circumstances but also to cases where an animal behaves uncharacteristically in a manner characteristic of its species at particular times or in particular circumstances.

7

The two different interpretations of section 2 (2) (b) of the Act in the cases in the Court of Appeal were described by the House of Lords in Mirvahedy v Henley (2003) UKHL 16, (2003) 2 AC 491 as the Cummings and Breedon interpretations after Cummings v Granger [1977] 1 QB 397 and ( Breedon v Lampard 21 March 1985 unreported).

8

The issue was resolved by a majority decision of the House of Lords in Mirvahedy where at paragraph 43 Lord Nicholls said:

"In other words, if the tendency of a horse to bolt when sufficiently alarmed is to be regarded as a normal characteristic of horses "in particular circumstances" and, hence, a horse will meet requirement (b), it is not easy to conceive of circumstances where dangerous behaviour which is characteristic of a species will not satisfy requirement (b). A normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances. Thus the Cummings interpretation means that requirement (b) will be met in most cases where damage was caused by dangerous behaviour as described in my requirement (a). Requirement (b) will be satisfied whenever the animal's conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal's behaviour was characteristic of the species in those circumstances."

At para 46 he went onto say:

"Thirdly, "the lack of content" argument levelled against the Cummings interpretation cannot be pressed too far. The Cummings interpretation does not empty requirement (b) of all content. Some forms of accidental damage are instances where this requirement would operate. Take a large and heavy domestic animal such as a mature cow. There is a real risk that if a cow happens to stumble and fall on someone, any damage suffered will be severe. This would satisfy requirement (a). But a cows' dangerousness in this regard may not fall within requirement (b). This dangerousness is due to a characteristic normally found in all cows at all times. The dangerousness results from their very size and weight. It is not normally due to a characteristic not normally found in cows "except at particular times or in particular circumstances."

At para 47 he further said:

"For these reasons I agree with the interpretation of section 2 (2) (b) adopted in Cummings v Granger [1977] QB 397and Curtis v Betts [1990] 1 WLR 459and by the Court of Appeal in the instant case. The fact that an animal's behaviour, although not normal behaviour generally for animals of that species, was nevertheless normal behaviour for the species in particular circumstances does not take the case outside section 2 (2) (b)."

9

The exception in section 5, which is relevant to the circumstances of this case, is that a person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk.

In Freeman v Higher Park Farm [2009] EWCA Civ 1185 Etherton LJ said:

"The words of section 5 (2) are simple English, and must be given their ordinary meaning, and not be complicated by fine distinctions or by reference to the old common law doctrine of volenti: Cummings v Granger [1977] QB 397, at 408 (Ormrod LJ). What must be proved in order to show that somebody has voluntarily accepted the risk is that (1) they fully appreciated the risk, and (2) they exposed themselves to it: Cummings v Granger [1977] QB 397at 410 (Bridge LJ)."

Facts

10

The background to Mrs Bodey's involvement with Mrs Hall appears to have been their shared interest in horses. Pepper, the horse pulling the trap on the day of the accident had spent some time in Mrs Bodey's care before Mrs Hall acquired her. Mrs Bodey started riding out with Mrs Hall as groom in the pony and trap about two months before the accident in total on about 7 occasions.

11

It was accepted by Mrs Bodey in evidence that she was an experienced horsewoman. She had been around horses since she was a teenager. She has been involved in the rehabilitation and welfare of horses including becoming a Field Officer for the Veteran Horse Society. At the time of the accident she was studying for an HND in Equine Studies with the aspiration of becoming a teacher. She had started her own rehabilitation yard in early 2005.

12

However, Mrs Bodey said that she was a novice when it came to experience of driving or being a passenger in a pony and trap. Other than the times that she had driven with Mrs Hall she had very little experience of driving. She had watched her son's lessons when he was being taught to break in a Shetland pony for driving. She said that she may also have been a passenger in trap with Mrs Evans on about two occasions. She had chosen carriage driving as one of her options for her HND course but described herself as a beginner. She also said that she thought that driving was a safer way to enjoy going out in the countryside following the death of her husband. She said that with three children she did not want to take unnecessary risks particularly with a child with Asperger's Syndrome. She said that she was aware that horses can spook and bolt but did not think that a trap could be turned over. She said "I honestly did not think that I could have been thrown out and that such an accident would happen." She said that she thought the risks involved related solely from climbing on and off the trap.

13

Mrs Bodey described Mrs Hall as not being confident driving...

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