Sofia Schoultz v Vicki Ball
| Jurisdiction | England & Wales |
| Judge | Melissa Clarke |
| Judgment Date | 03 October 2022 |
| Neutral Citation | [2022] EWHC 2452 (KB) |
| Docket Number | Case No: QB-2018-004705 |
| Court | King's Bench Division |
[2022] EWHC 2452 (KB)
HER HONOUR JUDGE Melissa Clarke
Sitting as a High Court Judge
Case No: QB-2018-004705
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice,
Strand, London, WC2A 2LL
Mr Jonathan Hand KC (instructed by Moore Barlow) for the Claimant
Mr Nathan Tavares KC and Ms Harriet Jerram (instructed by Clyde & Co) for the First Defendant
Hearing dates: 14, 15, 16 and 17 June 2022
Draft sent to parties 12 September 2022
Approved Judgment
A. Introduction
At about 3.37 am on a dark winter morning on 16 December 2015, two 18 year old schoolfriends, Sofia Schoultz and Deema Al Hugail, were returning to Cobham after a night out in London when the red Vauxhall Zafira taxi in which they were rear-seat passengers collided with a loose horse on the southbound carriageway of the A3 near Esher. The Welsh Section C mare, who was called Lowri, was killed in the collision and her body landed through the roof of the taxi so that, broadly speaking, her head and forequarters penetrated the taxi cabin and her rear-quarters were hanging outside the taxi on the offside.
Ms Al Hugail was able to exit the taxi herself; she was shocked and confused but had escaped serious injury. The taxi driver Mr Ponniah Sabesan was assisted to leave the taxi by police who arrived promptly at the scene. Ms Schoultz, however, who had been sitting behind the driver's seat, was retrieved by the emergency services from under the body of the dead Lowri. She suffered a severe traumatic brain injury with left sided subdural subarachnoid haemorrhage; multiple fractures to the base of the skull, right ribs, C6/7 of the spinal vertebrae, left zygoma, orbital floor and left petrous temporal bone; and associated facial nerve injury and vestibulocochlear nerve injury. It is Ms Schoultz who brings this claim.
Lowri was one of two loose horses on the A3 that morning. The second was a Dutch Warmblood gelding called Mr Fox, or Fox. Before that morning, Fox and Lowri had been kept in a herd of about 24 retired horses on a fenced field at Stokesheath Farm, Oxshott by the Second Defendant Mrs Miller, who provided retirement livery services and traded as Surrey Grazing. Lowri was owned by the First Defendant, Ms Vicki Ball. Fox was owned by Ms Alice Hughes. Both paid Mrs Miller monthly fees to meet their animals' retirement needs.
At the time of the collision, Mr Sabesan was driving the taxi in either the nearside or the central of the three lanes of the southbound carriageway (this is a dispute I will need to resolve). Driving a short distance behind it, and in the outside lane, was Mr James Rayner in his BMW motorcar. Mr Rayner says that he saw what he assumed was a vehicle spinning in the road ahead of him, as he saw, firstly, brake lights illuminate and then a single headlight flashing in his direction. Very shortly after noticing that, he collided with Fox.
Fox's body was then struck in quick succession by a BMW motorcycle ridden by Andrew Torrie, and a Citroen van driven by Sam Wheeler in which were two front-seat passengers, Jason Meeks and Joe Chandler.
Lowri and Fox had been seen loose in the local area before they had entered the southbound A3 carriageway by two witnesses, Mr Matthew Callender and Mr David Bond. They are able to give some evidence about their route of travel and behaviour at the time they saw them.
The Claimant's claims against the Second Defendant and the Third Defendant have been resolved. Various Part 20 claims brought by the Defendants against each other have also been resolved or otherwise disposed of. The Second and Third Defendants do not play any further part in these proceedings.
It is convenient to note here that criminal proceedings relating to the escape of Lowri and Fox were brought against the Second Defendant which resulted in her trial and conviction in Redhill Magistrates' Court on 11 January 2017 “Magistrates' Court Trial”. In the trial bundle for these proceedings is a note of the evidence given at the Magistrates' Court Trial, produced by Mr Robert Dacre of 2 Hare Court who was instructed to attend the trial as an observer by the solicitors for the First Defendant.
The matter for my determination is a preliminary issue of liability: is Ms Vicki Ball, the owner of Lowri, liable under s2(2) Animals Act 1971 for Ms Schoultz's injuries sustained in that collision? Ms Schoultz says she is, and Ms Ball says that she is not.
B. Law
The leading authority on section 2 of the Animals At 1971 remains Mirvahedy v Henley [2003] 2 A.C. 491, in which the House of Lords upheld the judgment of the Court of Appeal, which in turn had carried out an extensive review of what Lady Justice Hale (as she then was) referred to at [1] of the Court of Appeal Judgment as “every known authority on that section in this and the High Court, together with the preceding Law Commission Report on Civil Liability for Animals (1967) (Law Com No 13) and the relevant parliamentary debates…”.
The Animals Act 1971 provides, so far as is relevant:
Section 1: New provisions as to strict liability for damage done by animals.
(1) The provisions of sections 2 to 5 of this Act replace—
(a) the rules of the common law imposing a strict liability in tort for damage done by an animal on the ground that the animal is regarded as ferae naturae or that its vicious or mischievous propensities are known or presumed to be known;
…
(2) Expressions used in those sections shall be interpreted in accordance with the provisions of section 6 (as well as those of section 11) of this Act.
Section 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.
Section 6: Interpretation of certain expressions used in sections 2 to 5.
(1) The following provisions apply to the interpretation of sections 2 to 5 of this Act.
(2) A dangerous species is a species—
(a) which is not commonly domesticated in the British Islands; and
(b) whose fully grown animals 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.
(3) Subject to subsection (4) of this section, a person is a keeper of an animal if—
(a) he owns the animal or has it in his possession; or
(b) he is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession;
and if at any time an animal ceases to be owned by or to be in the possession of a person, any person who immediately before that time was a keeper thereof by virtue of the preceding provisions of this subsection continues to be a keeper of the animal until another person becomes a keeper thereof by virtue of those provisions.
The First Defendant admits that, by section 6(3)(a), as the owner of Lowri she is ‘a keeper’ of the horse for the purposes of sections 2 to 5 of the Act.
There is no dispute that, as a matter of law, a horse is not a dangerous species as defined in section 6(1), as it is commonly domesticated in this country, and so we are concerned with liability under section 2(2).
It is also a matter of law that liability under section 2(2) is strict, i.e. that the Claimant does not have to prove any fault on the part of the First Defendant as keeper, if it satisfies the Court on the balance of probabilities that each of the three conditions at section 2(2)(a), (b) and (c) are engaged, unless the circumstances fall within one of the exceptions to liability under section 2 contained in section 5 of the Act. It is common ground that none of those exceptions are engaged in this case.
In this case the Claimant relies on both limbs of section 2(2)(a). The burden of proof is on her to show either that the damage caused by Lowri was of a kind which the horse, unless restrained, was likely to cause or, if caused by the horse, was likely to be severe. “Likely” in this context means “reasonably to be expected” per Lord Scott (obiter) in Mirvahedy v Henley at [95] to [97], confirmed by the Court of Appeal in Turnbull v Warrener [2012] PIQR P16 at [12].
The question of whether or not severe injury is likely/reasonably to be expected is a factual matter for determination by the court on the evidence before it. Neither the likelihood of injury, or the severity of it, should be assumed from the circumstances of the accident or the fact that the claimant did, in fact, suffer a severe injury ( Lynch v Ed Walker Racing Ltd [2017] EWHC 2484 (QB), Langstaff J at [24]). These are matters which must be considered prospectively, not assumed with the benefit of hindsight. In making that determination, the court is entitled to rely on equine...
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