SECTION 2(2) OF THE ANIMALS ACT: COURT OF APPEAL GIVES A STEER AS TO HOW IT IS TO BE CONSTRUED

Section 2(2) of the Animals Act 1976 has come under some criticism over the years, from the judiciary and practitioners.  The section came under scrutiny again in the Court of Appeal decision in Williams v Hawkes [2017] EWCA Civ 1846

 

KEY POINTS

• s.2(1)(b) of the Animals Act 1976 applies where the animals “characteristics” are temporary and caused by the situation it is in. In this case a steer “spooked” by an unknown source.
• The presence of the animal on the road was sufficient, in this case, to establish causation.
• The case of  Jaundrill v Gillett (16 January 1996) should be treated with caution. It was a case on its own facts and caution should be exercised before it is cited as authority.

THE 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.”

THE FACTS IN WILLIAMS

The claimant had been injured when he struck a steer owned by the defendant which had got loose and was on the road. The defendant was found not to be negligent but was in breach of Section 2(2).

REVIEW OF THE AUTHORITIES

Lord Justice Davis set out the problems that section 2(2) had caused.

1. 1. One problem arising under s.2 (2)(b) came to be identified. It was this: was a keeper of an animal, not in itself being an inherently dangerous animal, strictly liable for damage caused by the animal when the animal’s behaviour in the circumstances was in no way abnormal for an animal of that species in those circumstances?

   2. The views of the courts had differed on this. Some thought that that was what the wording of the section mandated. Others, however, thought that it could never have been the intention of Parliament to impose strict liability on keepers in circumstances where the animal in question was behaving normally for its species in those circumstances.

   3. It was that point that had to be settled by the House of Lords in Mirvahedy (cited above). Mirvahedy itself was a case involving horses. Three horses had panicked as a result of an unidentified event and escaped from their field. They eventually got onto a dual carriageway road. One horse crashed into the side of the car of Mr Mirvahedy: the horse being killed, the car being severely damaged and Mr Mirvahedy suffering serious personal injuries. By a majority of 3-2, the House of Lords decided in favour of the claimant. In doing so, it rejected the latter approach set out above. It answered the question posed (as set out in paragraph 28 above) in the affirmative. It decided that such a conclusion reflected the language used by Parliament. It was acknowledged by Lord Nicholls (at paragraph 43) that that interpretation of s.2 (2)(b)

“…means that requirement (b) will be met in most cases where damage was caused by dangerous behaviour as described in requirement (a).”

Nevertheless, he went on to explain that that interpretation did not deprive s.2 (2)(b) of all content. He said this in paragraph 46:

“Some forms of accidental damage are instances where this requirement could operate. Take a large and heavy domestic animal such as a mature cow. There is a real risk that if a cow happens to stumble and fall onto someone, any damage suffered will be severe. This would satisfy requirement (a). But a cow’s dangerousness in this regard may not fall within requirement (b). This dangerousness is due to a characteristic normally found in all cows at all times. The dangerousness results from their very size and weight. It is not due to a characteristic not normally found in cows ‘except at particular times or in particular circumstances’.”

Lord Hobhouse and Lord Walker reached a similar conclusion. At paragraph 157 Lord Walker said this:

“It is common knowledge (and was known to the appellants in this case) that horses, if exposed to a very frightening stimulus, will panic and stampede, knocking down obstacles in their path (in this case an electric fence, a post and barbed wire fence behind that, and then high undergrowth) and may continue their flight for a considerable distance. Horses loose in that state, either by day or by night, are an obvious danger on a road carrying fast-moving traffic. The appellants knew these facts; they could decide whether to run the unavoidable risks involved in keeping horses; they could decide whether or not to insure against those risks. Although I feel sympathy for the appellants, who were held not to have been negligent in the fencing of the field, I see nothing unjust or unreasonable in the appellants having to bear the loss resulting from their horses’ escape rather than the respondent (who suffered very serious and painful injuries in the accident, although he was wearing a seatbelt and slowed down as soon as he saw the first horse in his headlights).”

Lord Slynn and Lord Scott disagreed. They thought that no liability should attach where the animal (in that case a horse) had, confronted with abnormal circumstances, reacted in a way which was normal for a horse in such circumstances.

Discussion on the issues arising in the present appeal

1. 1. Given the facts as found by the judge, given the judge’s acceptance of the evidence of Professor Eddison and given the interpretation of s.2 (2)(b) as authoritatively decided by the majority of the House of Lords in Mirvahedy, it is at first sight rather difficult to see how the defendant in this case could escape liability under s.2 (2) of the 1971 Act.

   2. However, what is said by Mr O’Leary is that the claim should have failed on the issue of causation. He submitted that there was no basis for concluding that the collision was caused by characteristics of the steer 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. He asserted that the judge had failed sufficiently to address the question of whether, but for the section 2 (2)(b) characteristics, the claimant would have suffered damage.

   3. In my view, in approaching this ground of appeal it is essential to follow – as certainly the judge below had endeavoured to do – the structure of the sub-section.

   4. The first point, then, is to consider whether damage was caused by an animal which did not belong to a dangerous species (as defined). Here, the answer is obvious. It was.

   5. The second point is to consider the requirement of s.2 (2)(a). Here, too, the position was agreed at trial. The damage was of such a kind. It was of such a kind just because of the size and weight of the Charolais steer. Both the experts were agreed on that, stating that any injury such a steer might cause was likely to be severe on account of their size. The judge rightly accepted that. The position corresponds with that posited by Lord Nicholls in Mirvahedy in paragraph 46 of his speech (cited above).

   6. Moving, next, to the fourth point- the question of knowledge under s.2(2)(c)- again this was an agreed matter at trial. It was accepted that Mr Hawkes Senior knew of the relevant characteristics.

   7. That, then, brings one back to s. 2(2)(b). No one suggested that the likelihood of the damage was due to the characteristics of the animal not normally found in animals of the same species (that is, the first limb of s.2(2)(b)). But, on the expert evidence, the likelihood of damage was due to characteristics not normally so found except at particular times or in particular circumstances. The damage was not simply attributable to the size and weight of the cow (that satisfied s.2(2)(a) alone). The damage, as the judge found, applying Mirvahedy, was also attributable to the steer behaving in this dangerous way in the particular circumstance of it having been spooked by the various averse stimuli, as steers are wont to do in such circumstances.

   8. Mr O’Leary, however, drew our attention to the facts of Mirvahedy. In that case, the horse in question had careered into the side of the unfortunate Mr Mirvahedy’s car. In the present case, the steer had been in front of Mr Williams’ car. The trial judge apparently had thought that Mr O’Leary’s argument had primarily rested on the proposition that the steer was static at the time Mr Williams’ car came into contact with it: that is, that it was critical, on Mr O’Leary’s argument, that Mr Williams’ car had collided with the steer rather then the steer colliding with the car. Indeed that seemed to be one focus of Mr O’Leary’s written argument on this appeal (he described as a “crucial element” of Mirvahedy that the horse ran into the car and not the other way round). I would very much query if this point – that is, whether or not the steer was in effect static at the time of the collision – could of itself in this particular case necessarily avoid strict liability under the 1971 Act. Could it, for example, really have made a difference if the steer, acting under the influence of the averse stimuli, had careered down the road, with cars avoiding it, but then been struck by a car at a time when it had temporarily come to a halt? I doubt it. Further, as Mrs Collins observed, it surely cannot make any difference in principle in this case if Mr Williams had crashed his car having swerved so as (successfully) to avoid coming into contact with the steer. But in any event the point is met by the judge’s finding of fact that the steer was running in a panic on the carriageway at the time of collision, at a time when it was subject to the averse stimuli.

   9. It was maintained, nevertheless, that s.2(2)(a) and s.2(2)(b) were linked; and in particular that there must be a causal link between the characteristic in question and the (likelihood of the) damage caused: see McKenny v Foster [2008] EWCA Civ 173 at paragraph 33 of the judgment of May LJ, (a case itself involving a cow on a highway, albeit it was a case which was ultimately decided on the lack of knowledge for the purpose of s.2(2)(c): see paragraph 39 of the judgment).

   10. The high water-mark of Mr O’Leary’s argument, perhaps, was the ex tempore decision of a two judge Court of Appeal in the unreported case of Jaundrill v Gillett (16 January 1996). That decision is binding on us, sitting as we were in a two judge court in the instant case. But it is only binding on us for what it actually decides. And it is distinguishable on its facts, as Mr O’Leary fairly and rightly accepted.

   11. In Jaundrill, some horses were let out of a field by some malicious intruder or intruders. Shortly thereafter, they got onto a road, this being in the hours of darkness, and were picked up by car headlights galloping down the road. The plaintiff’s car collided with two of the horses: his car was damaged and he was injured. The Court of Appeal, reversing the trial judge, decided that there was no liability under the 1971 Act.

   12. The trial judge had found on the evidence that the horses had been driven in a group onto the road by the intruders and “in the dark, being removed from their accustomed environment, it was likely that they would behave unpredictably and tend to panic and gallop as they did”: there being expert evidence, accepted by the trial judge, to the effect that horses do not gallop unless they are stimulated to do so either by a rider or by fright.

   13. Notwithstanding those findings of fact, the Court of Appeal felt able to interfere. In fact, a reservation was expressed by Russell LJ (with whom Singer J agreed) as to whether a horse that gallops on a highway at night and is driven to panic can be said to be displaying a characteristic within the ambit of s.2. Be that as it may, Russell LJ went on to say (at page 6 of the transcript of judgment) that “there has to be a causal link between the characteristic in question and the damage suffered.” He then went on to hold that the “only sensible approach” to the question of causation was that “the galloping and/or panicking of these horses was not causative of the accident…in any real sense.” He further went on to say this:

“In my view the real and effective cause of the accident… was the release of the animals on to the road and their remaining there. There was no evidence that the galloping of the horses aggravated the situation…. I cannot bring myself to the view that the galloping and panicking of these horses was responsible for the damage occasioned by the plaintiff and to his motor car. It was the presence of the horses on the highway that was causative of the damage sustained.”

He concluded that the plaintiff had failed to prove that it was the galloping and/or panicking of the horses that was responsible for the damage caused.

1. 1. With respect, I have some difficulty with this decision. For one thing, the case was decided before Mirvahedy; and aspects of Russell LJ’s remarks (for instance, the reservation as to a relevant characteristic being present) are not altogether easy to align with the approach taken in Mirvahedy. For another, it departed from the trial judge’s findings of fact and did so on a basis not entirely easy to follow. Moreover, the bald statement that there was no evidence that the galloping of horses aggravated the situation seems, to me at least, somewhat out of line with the “sensible approach” which Russell LJ himself was advocating. Indeed, the suggestion that it was the presence of the horses on the highway that was causative perhaps comes close to saying that this particular collision would have happened anyway, whether the horses were galloping or not: again, a proposition I find difficult.

   2. However the present case is, as I say, distinguishable. It involved a steer with no natural tendency to “gallop” and which, as found, was throughout acting both under the influence of the initial averse stimulus causing it to jump the six foot fence and escape and then under the further averse stimuli of travelling through hedges and fences in a strange environment and then the lights and noise of the road traffic. The present case, on its facts, thus cannot be shoehorned into the ambit of Jaundrill. Nevertheless, I would for myself say that I think that the case of Jaundrill is to be treated with great caution and certainly it is to be treated as a decision confined to its own particular facts and circumstances.

   3. This is also, I think, borne out by the outcome in Mirvahedy itself. For that case had involved not only the question of interpretation of s.2 (2)(b) discussed above but also an issue of causation. In the county court, the trial judge, following Jaundrill, had found against the claimant on the ground that the characteristics in question had not caused the damage. Counsel for the defendants had argued before the Court of Appeal, as he had below, that causation was not established because it was the presence of the horses on the highway and their size, rather than any characteristics which the horses exhibited, that was causative of the damage sustained: see [2001] EWCA Civ 1749, [2002] QB 769 at p772C. (This closely reflects, I note, the argument which Mr O’Leary was advancing before us). However, in giving her reserved judgment (with which the other two members of the court agreed), Hale LJ, after referring to Jaundrill, said this at paragraph 16:

“In this case, however, it is indeed difficult to conclude that it was anything other than the particular characteristics of these horses once they had been terrified which led to their escape and to this accident taking place. They were still not behaving in the ordinary way in which they would behave when taken on the road. One witness referred to them bolting; another to them trotting across the road in front of the vehicles; they crashed into the vehicles rather than the other way about. It is precisely because they were behaving in the unusual way caused by their panic that the accident took place.”

1. 1. This approach as to causation was endorsed by the majority in the House of Lords. Thus Lord Nicholls said this at paragraph 48:

“I also agree with the decision of the Court of Appeal on the facts in the present case. Horses are large and heavy animals. But it was not this innate physical characteristic of the defendants’ horses which caused the road accident. The horses escaped because they were terrified. They were still not behaving ordinarily when they careered over the main road, crashing into vehicles rather than the other way about. Hale LJ [2002] QB 769, 776 concluded that it was precisely because they were behaving in this unusual way caused by their panic that the road accident took place. That conclusion, on the evidence, seems to me irrefutable and to be fatal to the case of Dr and Mrs Henley….”

Lord Hobhouse’s conclusions were to like effect. He among other things said this at paragraph 69:

“Horses are not normally in a mindless state of panic nor do they normally ignore obstacles in their path. These characteristics are normally only found in horses in circumstances where they have been very seriously frightened. It is only in such circumstances that it becomes likely that, due to these characteristics, the horse will cause severe damage… There is no ambiguity about the facts of this case….”

Lord Walker also specifically endorsed the approach of Hale LJ on causation. Amongst other things, he said this at paragraph 161:

“However the essential point is that in order to recover the claimant had to show that the damage which he had suffered was caused, not merely by the horses escaping and being on the main road, but by the characteristics which are capable of founding strict liability under section 2(2)—in short, a frightened horse’s propensity to bolt, to continue to flee, and to ignore obstacles in its path.”

1. 1. It is true that neither the House of Lords nor the Court of Appeal purported expressly to overrule or not follow the decision in Jaundrill. They did not need to. It was distinguishable on its facts. But certainly their decisions lend no endorsement whatsoever of some more general approach to be extracted from Jaundrill. To the contrary: the decision of the county court judge, who had purported to follow Jaundrill, was reversed.

   2. All that said, I return to the facts of the present case. It is true that (unlike the horse in Mirvahedy) the steer was not careering, as such, across the highway; nor did it crash into the side of Mr Williams’ car. But those are not material differences. It is futile, in the circumstances of this particular case, to ask whether the steer collided with the car or the car collided with the steer. The steer was, as found, running on the A465 in a panic, acting under the original (but ongoing) averse stimulus which had given rise to the escape from the field in the first place and then exacerbated by subsequent averse stimuli such as the lights and noise of the cars. The linked requirements of s.2 (2)(a) and (b) thus were satisfied on the facts of this case. That was the conclusion of the judge at paragraphs 38 to 40 of his judgment: and it was a conclusion wholly open to him on the evidence.

Conclusion

1. 1. There is no basis for interfering with the findings or conclusion of the trial judge. I would in fact pay tribute to the care and thoroughness evident in his judgment. I would dismiss this appeal.

Lord Justice Hickinbottom:

1. For the reasons given by my Lord, Davis LJ, I would also dismiss this appeal.

2. I would only add that I too find Jaundrill difficult, particularly after the exposition of the law in Mirvahedy; and agree that Jaundrill is properly construed as a decision confined to its own peculiar facts as the court found them to be. As such, in my respectful view, it provides no assistance as to the relevant legal principles; and it is very unlikely to be of any assistance to a court in applying those principles. Therefore, whilst Mr O’Leary was in my view right to draw Jaundrill to our attention, in the future considerable caution should be given before it is cited as an authority.

 

 

Tags: Animals, Animals Act, Appeal