Too little, too late

Before Mirvahedy v Henley [2003] UKHL 61, section 2(2) of the Animals Act 1971 was little known. When Mr Mirvahedy's personal injury claim succeeded in the House of Lords, all that changed. The case attracted widespread alarm because it was believed that animal owners would be liable for whatever damage their animals caused. Insurance premiums rose, equine businesses suffered and the law was blamed.

The origins of section 2(2) are the Law Commission's 1967 Report which recommended that the common law rules governing liability for animals be simplified in statute. The commission felt animal keepers should bear qualified strict liability for damage caused by their (domesticated British) animals. Section 2(2) followed its recommendations:

'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(1), (2) and (3) provide that there is no liability if the victim was a trespasser, volunteer or wholly at fault.

The 'second limb'

The first important decision was Cummings v Grainger [1977] 1 QB 397 CA. The plaintiff was injured by a trained guard dog loose in the defendant's scrap yard. Her claim failed because she was a trespasser and had voluntarily accepted the risk, but Lord Denning said that the dog was a 'typical guard dog' and had a propensity to bite when left to roam in its own territory and confronted by an intruder. There was a 'second limb' to sub-section (b), covering temporary characteristics which appeared only in certain circumstances. This suggested that section 2(2) could have very wide application.

In Breeden v Lampard (Court of Appeal, 21 March 1985, unreported) the plaintiff and defendant had been out foxhunting. The defendant's horse was lively but not a known kicker. It moved in front of the plaintiff in a crowded road and kicked out, breaking her leg. Her claim failed on the basis of the defendant's lack of knowledge of the horse's characteristics (i.e. (c) was not satisfied) but the court decided that liability could only be established under section 2(2) if the animal had a characteristic which was abnormal for the species and that the so called 'second limb' of (b) was no more than a further explanation of the first limb. The court expressed its disbelief that Parliament intended to impose liability for 'what is essentially normal behaviour in all animals of that species'.

Breeden, if correct, therefore established that there was no 'second limb' to (b) and severely restricted the application of section 2(2) to circumstances where the animal was 'abnormal'. When Mirvahedy came before the House of Lords in March 2003, there was uncertainty as to whether the Cummings or Breeden interpretation was correct. The difference would clearly substantially affect the number of cases in which a victim would succeed.

In Mirvahedy, the claimant crashed into a horse loose on a dual carriageway, suffering serious injuries. The horse, with two others, had stampeded through the fencing of their field and run some way before reaching the road. It was agreed that something unknown had terrified the horses. Mr Mirvahedy's negligence claim against the Henleys, who owned the horses, failed because the field was well fenced. As to his section 2(2) claim, by majority the Lords decided that the Cummings interpretation was correct. The horses had been displaying a characteristic '“ fleeing in panic because of the particular circumstances (terrified by some danger) '“ and so the second of limb of (b) was satisfied and the Henleys were liable.

The 'likelihood' test

Scott LJ, dissenting, expressed surprise that courts in previous cases had failed to focus on what he regarded as a 'likelihood' test in (a). He suggested that 'likely' should mean 'reasonably to be expected' and that the claim in Mirvahedy should have failed because it did not satisfy (a): first, the damage suffered was not likely; and secondly, any damage which did take place was not likely to be severe.

As a result of fears after Mirvahedy that keepers were now always liable, between 2004 and 2008 insurance premiums rose by around 70 per cent and 650 riding schools closed. This was surely an overreaction. All that Mirvahedy had decided was that there was a second limb to (b) and, while that increased the risk of animal keepers being liable, it did not mean that they were liable in all circumstances. Nonetheless, efforts were made in Parliament to reform section 2(2); but all failed.

In the meantime, the judicial analysis, especially Scott LJ's, to which section 2(2) had been subjected during Mirvahedy was having an effect in the courts. In Clark v Bowlt [2006] EWCA Civ 978, the claimant driver slowed down to pass two horses but the defendant's horse moved towards him and hit his car. Both were injured. Their claims in negligence against each other failed but the court reached the following decision over the claimant's section 2(2) claim: in respect of (a), the damage actually caused in this case was not likely to be caused by the horse '“ in fact, even though it did happen, it was unlikely to happen; in respect of (b), a propensity to move otherwise than as directed was probably not a propensity at all and, even if it was, there were no 'particular circumstances' in this case. Consequently, (a) and (b) had not been made out and the claim failed. The court made clear that the characteristics identified must be the reason that the damage was likely or likely to be severe and that therefore (a) and (b) were linked. Again, the court focused on the likelihood test and used that to find against the claimant.

In McKenny v Foster [2008] EWCA Civ 173, the defendant's cow had been separated from her calf earlier that day. She jumped over a six-bar gate and escaped down a track and over a cattle grid, causing a road traffic accident. It was held that it was not normal for a cow to so behave in any circumstances and consequently the claimant had failed to make out either (a), (b) or (c) and the claim failed.

In Freeman v Higher Park Farm [2008] EWCA Civ 1185, an experienced rider went to the defendant's equestrian premises to hire a horse. She accepted an apparently suitable horse which was described as exuberant but inexperienced and which could occasionally give a little buck. The horse did buck and the claimant fell off and was injured. It was held that, in respect of (a), if a horse bucked its rider off, it was reasonably to be expected that severe injury would result and thus (a) was satisfied; in respect of (b) bucking might well be a normal characteristic for horses (and so there could be no claim under the first limb of (b)) and there was no evidence that horses in general bucked in particular circumstances (and so there could be no liability under the second limb of (b) either). In any event, the claim failed because the claimant had consented to the risk.

Proposed amendments to section 2(2)

It is therefore clear that case law has moved on considerably from the Mirvahedy decision. Courts have rigorously applied (a), (b) and (c) and, in most cases, the claim failed to satisfy these criteria. As a result, it is much more difficult for victims to bring claims under section 2(2) than was believed to be the case at the time of Mirvahedy.

Nonetheless, the government has launched a consultation with a view to amending section 2(2). They propose to use delegated legislation. The new section 2(2), following the proposed change, appears in the box below, with changes in italics.

The changes to the first line of 2(2)(b) are welcome: replacing the words 'the likelihood of the damage or of its being severe' with 'the damage' clarifies the meaning.

The rest of the changes do not really change the meaning of (b). The real change comes at new paragraph 2(5)(b) which introduces a knowledge and foreseeability test: the keeper will not be liable if the damage was suffered in circumstances which the keeper could not reasonably have expected at that time. Such a defence would have enabled the Henleys to avoid liability in Mirvahedy. Had this amendment been proposed immediately after Mirvahedy, it would have been extremely welcome '“ certainly to animal keepers.

Problems with the proposals

There are, however, difficulties with the proposed amendment. It arguably comes six years too late and is no longer necessary. The introduction of a foreseeability test takes no account of the fact that case law over the last six years has established that there are already clear foreseeability tests in (a) and (c) which afford real defences to keepers and which have resulted in most post-Mirvahedy claims failing. Arguably, the real difficulty here is a lack of perception of the present state of law. When there is wider appreciation of the strong position of defendants now in section 2(2) cases, it is hoped that insurance premiums will come down.

Although DEFRA's consultation paper does refer to McKenny, it does not refer to any of the other post-Mirvahedy cases. There appears to be an assumption that the law has not moved on since Mirvahedy and that keepers will almost invariably be liable for damage caused by their animals. Neither of these propositions is true: all that Mirvahedy established was that there was a second limb to (b) '“ which indeed did 'catch' many animal keepers who would have otherwise avoided liability. It is strongly arguable that post-Mirvahedy cases have established a clear line of authority, setting out the principles in (a), (b) and (c) and clarifying the real difficulties which claimants have in satisfying all three parts of section 2(2). There is also a risk that the amendment goes further than necessary and reduces section 2(2) to no more than a negligence test, rendering it pointless.

It is remarkable that, nearly 40 years on, section 2(2) continues to cause such difficulties. Whether the DEFRA consultation results in the proposed amendment being implemented or some other outcome, it is unfortunately likely that litigation over liability for animals will continue into the foreseeable future.