Defra's consultation on reforming section 2(2) of the Animals Act is unnecessary

 

Defra will shortly launch a consultation over possible reform of section 2(2) of the Animals Act 1971. The section reads: “Where any 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…”

Section 5 provides defences, including (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.”
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The purpose of the section was to make keepers of animals liable where the animal’s behaviour was predictable. Many cases have considered the interpretation of section 2(2) over the last few years and most claims have failed.

Nonetheless, Defra started a consultation in 2009 with a view to amending section 2(2), on the premise that the meaning of the section was unclear and fuelling litigation. No agreement could be reached, and, by early 2010, the general election was approaching and reform was abandoned. This time, DEFRA has simply invited suggestions. So, what developments have taken place since 2009 and could consensus over reform now be achieved?

Experienced riders

There have been three recent important decisions. In Sally Bodey v Gillian Hall [2011] EWHC 2162 QB, the claimant and defendant were experienced horsewomen. Mrs Hall had a pony and trap and Mrs Bodey had ridden with her as a groom on several occasions. One day, they rode down a lane, before turning off on to a track. Shortly afterwards, Mrs Hall’s horse Pepper shot forward, apparently in panic at something. There was no evidence that the horse had behaved like this before. The trap overturned and Mrs Bodey sustained serious head injuries. The trial judge found that the claimant was aware that involvement with horses carried a risk of accident, and, particularly, that a trap could overturn.

?There was no evidence of negligence by ?Mrs Hall.

The claimant satisfied parts (a), (b) and (c) of section 2(2), but she lost her case. The reason was that section 5(2) applied: Mrs Bodey had consented to the risk of such an accident. She was an experienced horsewoman who was familiar with Pepper and had driven with Mrs Hall before. She was aware of the risk of injury from the

??the keeper of a horse called Red and was looking for someone to whom he could give him away. The claimant was an experienced rider who came to see and ride the horse three times. The defendant told her that ?Red would require an experienced rider. ?

On the third visit, something startled Red and he reared up and bucked violently. The claimant was thrown to the ground and was struck by the horse’s hoof, suffering severe facial injuries.

At trial, the claimant accepted that she was an experienced rider and that there was a risk, when riding any horse, that it might be spooked at any time, but denied that she was aware that the horse might rear and buck as violently as it did. The court decided that (a), (b) and (c) were all made out, but the claim failed. Section 5(2) applied, because the claimant had consented to the risk of the horse bucking and rearing. The fact that the horse bucked and reared much more aggressively than the claimant anticipated was irrelevant

In Turnbull v Warrener [2012] EWCA Civ 412, the claimant and defendant were experienced riders. Mrs Warrener had a well-behaved horse called Gem. When Mrs Warrener became pregnant, she agreed that Ms Turnbull would exercise Gem. This arrangement continued for four months until Gem’s teeth had to be filed. The dentist advised that Gem should not be ridden with a bridle with a bit for the following week. Mrs Warrener borrowed a bitless bridle and agreed with Ms Turnbull to gradually introduce the bit to Gem in confined conditions. There were no problems. Ms Turnbull wanted to canter Gem up the field and Mrs Warrener said she could if she felt safe to do so. Ms Turnbull set off but Gem galloped out of control and veered through a gap in the hedge. Ms Turnbull fell off and was injured.

The Court of Appeal could not agree on whether the claimant had satisfied the requirements of section 2(2), but that didn’t matter because they agreed that section 5(2) applied: Ms Turnbull was an experienced rider, was aware of the risks and had clearly consented to the risk of such an accident. Her claim failed.

Ruled out

These crucial decisions are highly likely to ?rule out the chance of any experienced ?rider, when riding (or driving) someone else’s horse, from bringing a claim under section 2(2).

Those who originally proposed the amendments considered by Defra in 2009 wanted to clarify the law and strengthen the position of animal owners – but these objectives have already been achieved by ?the outcome of the post-Mirvahedy cases. ?Clearly, no consensus will be achieved in ?the forthcoming consultation.