Horsing around

Few statutes in the field of personal injury are less coherent and more an outright invitation to confusion than the Animals Act 1971. The recent case of Clark v Bowlt [2006] EWCA Civ 978 demonstrates the traps this Act conceals for the unwary, and gives guidance as to the way in which practitioners might avoid falling into them.

Background

Mr Clark was driving along the A196 in Northumberland when he saw two horses being ridden in the same direction as he was travelling on the verge to his near side. Mrs Bowlt was riding Chance. Mr Clark slowed right down and moved towards the centre of the road. The horses showed no sign of panic but, as he passed them, Chance moved into the road. Mrs Bowlt was unable to control her and Chance hit the front nearside of Mr Clark's car.

Negligence claim

Mr Clark brought a claim in negligence and under the Act. Mrs Bowlt counterclaimed in negligence. Since it was accepted that the horse is not a dangerous species, Mr Clark brought his claim under s 2(2) of the Act. This required him to prove:

(a) The damage was of a kind which Chance, unless restrained, was likely to cause, or which, if caused by Chance, was likely to be severe.

(b) The likelihood of the damage or of it 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.

(c) These characteristics were known to Mrs Bowlt as the horse's keeper.

The judge concluded that neither had been negligent but that Mr Clark was entitled to succeed under the Act. As to (a), the judge found that, if Chance caused damage, it was likely to be severe because Chance weighed some 600lbs and was being ridden next to an A road with a 60mph speed limit. As to (b), he found that, in particular times or in particular circumstances, horses can (and Chance did) move otherwise than as directed by their rider. As such, this was a relevant characteristic which led Chance to move into the road and cause the accident. It does not appear that there was any dispute as to (c).

Neither party appealed against the decision on negligence but Mrs Bowlt appealed against the claim under the Act.

Appeal under the Animals Act

The Court of Appeal found that the judge had not answered the first limb of s 2(2)(a) '“ was the damage caused by Chance damage she was likely to cause unless restrained? This was not satisfied solely by her weight (which the judge had used as justification for finding the second limb of that section satisfied). If it was satisfied solely by the weight of the animal, the judge should have gone on to tie her weight in to s 2(2)(b), and to explain why he concluded that her weight was an abnormal characteristic or one found in horses only at particular times or in particular circumstances. Obviously neither criterion was satisfied on the facts of the case. The requirements were linked and a claimant had to rely on the same characteristic for the purposes of s 2(2)(a) and s 2(2)(b). To do otherwise would be effectively to extend the scope of s 2(2) to characteristics that were common to the non-dangerous species involved '“ the reverse of the situation intended by the Act.

The Lord Chief Justice, giving judgment allowing the appeal, reminded himself that the House of Lords in Mirvahedy v Henley [2002] UKHL 16 had decided by a majority of 3 to 2 that s 2(2)(b) provided for two different categories of damage which could lead to liability if the other requirements were satisfied. He doubted whether Chance's occasional propensity to move otherwise than as directed could properly be described as a 'characteristic'. Nor had the judge at first instance explained what he considered to be the particular times or particular circumstances when this characteristic might manifest itself. Instead, he seemed to have come close to accepting that this was a characteristic of horses in general, which would have taken the claim entirely outside s 2(2)(b). In any case, if this propensity to movement were a 'characteristic', the judge had not addressed the question of whether the damage Chance caused was damage which, unless restrained, she was likely to cause.

Strict liability

Lord Phillips concluded that Chance was only likely to cause the damage she did if she was given a severe fright, which on this occasion she had not been. Chance was not likely to do what she did, and it was unlikely that she would cause the damage she did in fact cause. Accordingly, it was that rarest of beasts in these litigious times '“ a true accident. The appeal was allowed.

There is obviously still scope for a claimant injured in an accident caused by a non-dangerous animal to take advantage of the provisions of strict liability under s 2(2). However this will only be where there is some characteristic specific to that animal to which the claimant can point that satisfies the requirements of both s 2(2)(a) and s 2.2(b). Given the somewhat awkward wording of this section, it is surely only a matter of time before further guidance is needed. In the meantime, it is likely that the Animals Act will continue to cause practitioners and judges to bark up the wrong tree.