Wormald v Cole
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE SINGLETON,LORD JUSTICE HODSON |
| Judgment Date | 26 February 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0226-1 |
| Docket Number | 1952 W. No. 3680. |
| Court | Court of Appeal |
| Date | 26 February 1954 |
[1954] EWCA Civ J0226-1
In the Supreme Court of Judicature.
Court of Appeal.
The Lord Chief Justice of England
(Lord Goddard).
Lord Justice Singleton, and
Lord Justice Hodson
Counsel for the Appellant: MR CYRIL SALMON, Q.C., and MR I.C. BAILLIEU, instructed by Messrs Haslewood, Hare, Shirley Woolmer & Co., Agents for Messrs Hood, Vores & Allwood, Dereham, Norfolk.
Counsel for the Respondent: MR R. MARVEN EVERETT, Q.C., MR J. RUSSELL and MR A. HILLS, instructed by Messrs Berrymans, Agents for Messrs Hill & Perks, Norwich.
This appeal raises yet another and, so it is said, a novel question in the law relating to personal injury caused by animals to human beings. The Plaintiff, a lady over 80 years of age, was knocked down and trampled on by a heifer belonging to the Defendant which was trespassing in her garden, and thereby sustained most grievous injuries, and as it is suggested that the case presents features which distinguishes it from the many previous decisions on the subject, it is necessary to state the facts carefully. The action was tried at the Norfolk Assizes by Mr justice Groom-Johnson in June of last year, and the learned Judge did not deliver judgment till the 14th October. It is, I think, clear from what he said that he depended on the Shorthand-Note for his statement of the facts rather than on his recollection of the evidence at the hearing. Accordingly, as we have the same Note, this Court is in as good a position as the learned Judge for forming an opinion as to the facts and, moreover, the incidents which led to the accident are not really in dispute. The Plaintiff lives in a cottage approached from the road by a small drive, the house being on the left and the garden on the right; at the end of the drive there is a garage, and at that end her property adjoins that occupied by the Defendant. On his land and adjoining the Plaintiff's is a shed open on one side, but with doors on that nearest to the Plaintiff's land, and in some way or another, it matters not how, it was possible for cattle to get through, as they did, from the Defendant's land into the Plaintiff's drive in spite of some rails which he had put up on the open side of the shed.
At the material time he had a number of young cattle, apparently both heifers and bullocks on his land. They were quiet, well behaved beasts and had given no trouble. On the evening of the 8th October, 1951, about 1951, about 7.30 p. m.,when, of course, it was dark, the Plaintiffs man, who lived on her premises, realised these animals, or some of them, had got into the drive; he saw a white one pass his window. He told his mistress and asked her to telephone the Defendant, which she did. Unfortunately he was out and could not be got at. The man, Dunnell by name, went out to try to drive the beasts back so as to prevent damage to the garden. Most of them were either then up to, or he drove them up to, the garage, and he got the Plaintiff's car out and placed it across the drive so as to pen them in. But two had got away from the others and had gone lower down the drive and nearer the house. Meanwhile, the Plaintiff had come out to tell Dunnell that the Defendant could not be found, and as she came in t o the drive she saw these two beasts and thought she had better try to stop them going into her garden. The evidence at this point is not very clear, which is not surprising, but it seems that she raised her stick to compel, as she put it, the animals to stay where they were, but they, or one of them, ran in her direction and knocked her down, and then turned and came back again trampling on her as she lay on the ground.
There was no proof that either Dunnell or the Plaintiff did anything improper which would frighten the beast, nor does it seem that it attacked Mrs Wormald. A witness of experience with this class of animal put it that in the dark, in unusual surroundings, a heifer would be upset and would t r y to get back to her companions. The Defendant himself put it that, in his opinion, the accident was due to the clumsiness of the animal and not to panic. The reasonable inference seems to me to be that the beast' s natural instinct was to rejoin the others; she accordingly ran towards the garage, and in the dark knocked down the Plaintiff and trod on her, and then turned as Dunnell and the car were in her way, and running back in the darktrod again on the recumbent plaintiff, in fact, these unfortunate happenings to the Plaintiff may be described as accidental in the true sense due to the reasons I have described, and there is no ground for attributing them to an attack by the animal on the plaintiff, in trying to rejoin her fellows or to get back to her usual surroundings, the animal would seem to have been following natural instincts, and the collisions with the plaintiff may be described as purely fortuitous, which would probably never have happened had the incident occurred during daylight.
The case presented for the Plaintiff is based solely on cattle trespass and damage naturally resulting therefrom. On the other hand, it is said that for this cause of action no damage can be recovered in law except that for the actual damage done to the soil and for the depasturing of crops growing thereon which may be eaten or trodden by the trespassing animal.
In his careful argument Mr Salmon admitted (though it must not be assumed that I necessarily agree) that had the injuries been caused by an attack or by vicious propensity in the animal he could not, in the absence of scienter, succeed; but he contended that if the damage was due to natural propensity the Plaintiff can recover. It was on this ground that he distinguishes this case from the many previous decisions, and it is, I think, true, to say that hitherto there does not seem to have been any reported case where the injury to a human being has been caused otherwise than by a so-called vicious action of an animal. Is it, then, the law that in no case can injury caused to mankind by an animal be actionable in the absence of scienter? In my opinion, the all-important consideration is that the Plaintiff was the occupier of land on which a trespass was committed, so that the only question is whether the damage is too remote.
Cattle trespass is one of the most ancient causes of action known to the common law. From the Writs collected and set out in professor Glanville Williams' s work on the Law of Animals (Cambridge University press 1939) it is evident that it was well established in the Fourteenth Century.
The action lies apart altogether from negligence, and as Mr Justice Brett put it in Ellis v. Loftus, which is reported in Law Reports lo Common Pleas at page 10, the mere act of an animal belonging to man may be a trespass inasmuch as the same act, if done by himself, would have been a trespass. For this he cites Blackstone, 16th Edition, Volume III, Cap. 12, where it is stated that a man is answerable not only for his own trepass but for that of his cattle also, and "if any unwarrantable act of the Defendant or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages; such, however, as the jury shall think proper to assess." The passage in Comyns Digest to which Mr Justice Brett refers is to the same effect, but does not add anything to this statement of the law. In Scott v. Shepherd, reported in 1 Smith's Leading Cases at page 515, the leading case as to the difference between trespass and case, it was laid down that if the act be in the first instance unlawful, trespass will lie for the consequences of it, so it appears, as I said above, that the real question i s whether the personal injuries in this case are the consequence of the unlawful entry of the cattle on the Plaintiff's land. Speaking for myself, if it were not for the many previous decisions, I do not think I should feel any difficulty in saying that they were, but as Mr justice Blackburn, said in Smith v. Cook, reported in 1 Queen's Bench Division at page 79, the law has been settled by authority rather than by reason, 30 an examination of the cases is necessary.
There seems no doubt that originally the damage inanaction of cattle trespass was confined to damage to the surface trespassed upon an to the depasturing of the crop. This appears from the Writs collected in professor Glanville Williams' s book to which I have already referred. The first extension of this rule seems to have been in Anderson v. Buckton (1718), reported in 11 Modern Reports at page 304, and 1 Strange Reports at page 192, where the plaintiff recovered because his cattle were infected with disease by the trespassing beasts. So some advance on the ancient rule was then established. The next step was in the oft-cited case of Lee v. Riley, reported in 18 Common Bench (New Series) Reports at page 722, decided 147 years later. A mare strayed on to tae Plaintiff's land through a defective hedge, kicked the plaintiff s horse and killed it. There was no evidence that the mare was vicious, and so reliance was placed on Cox v. Burbidge, reported in 13 Common Bench (Hew Series) Reports at page 430, to which I shall refer in a moment. The case was an appeal from the County Court, so there Were no formal Pleadings; Chief justice Erie and Mr Justice Keating dealt with it purely as one of cattle trespass; Mr Justice Byles and Mr Justice Montague Smith considered it from the point of view of negligence. (In parenthesis I may mention that, at any rate, where the escape is due to a defect in a fence which the Defendant is bound to repair the action lay either in trespass or case – Star v. Rookesby, reported in 1 Salkeld' s Reports at page 322.) All four judges held the damage caused by the death of the horse was not too remote. Chief...
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