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Court of Appeal provides welcome confirmation on the Animals Act 1971

28 January 2022

The Court of Appeal decision in an appeal brought by an injured rider against the horse keeper in Ford v Seymour-Williams at the end of the year will be welcomed by animal keepers and their insurers. Whilst the Court of Appeal made clear that the decision went "no way near" imposing a requirement of negligence, the Act was applied to require that a keeper should have some knowledge that the animal may normally display a characteristic, which the animal did in fact display, at the particular time or in the particular circumstance. Amy Jeffs reviews the judgment and its implications.

Ford v Seymour-Williams [2021] EWCA Civ 1848

Background

The claimant was riding a horse, Tommy, in the course of her employment with the horse's keeper, the defendant.

The horse suddenly stopped, stepping backwards or sideways but refusing to move forward – known as "napping". It then reared and fell backwards, landing on top of the claimant, causing her significant injury. It was found that the horse had suffered a cardiovascular injury resulting in its death within a matter of minutes.

The claim was pursued solely under the Animals Act 1971 without any allegation of negligence. The first instance decision and appeal concentrated on subsections 2(2)(b) and 2(2)(c) and the interaction between those subsections (our italics below highlight the significant phrases):

(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.

At first instance, evidence was adduced from the claimant, an experienced horseman who had witnessed the accident, and equine and veterinary experts on the possible competing causes of the horse rearing, being that:

  1. it was napping or being disobedient or
  2. it had suffered a significant internal injury.

The claimant produced evidence that the horse had reared in the past though it was not found that it had any abnormal tendency to do so. In any event, it was held by the first instance judge that the likely cause of the rear was the internal injury. The equine experts for both sides said that whilst they regarded rearing in these circumstances as in theory possible, it was not something which they would have expected or had ever seen. Nevertheless, the agreed equine expert evidence was that rearing as a result of a cardiac event was within the "normal range" of equine behaviour. According to the veterinary expert evidence, pain suffered before the horse collapsed could have caused the horse to rear, but this would not be known even to experienced keepers.

On this basis, it was held that whilst a horse may rear in the particular time or circumstance of suffering severe internal injury, this was not a characteristic (in those particular times and circumstances) known to the keeper, and the claim failed in that section 2(2)(c) was not made out.

Court of Appeal decision

The primary basis of the appeal by the claimant was that the Animals Act required her to show that the likelihood of damage was due to a characteristic which was not normal at all times but rather normal only in particular times or particular circumstances. It was argued that so long as the claimant was able to theoretically identify a time or circumstance in which it would be normal for a horse to rear (for instance, being disobedient or napping), there was no requirement for those particular times or circumstances to have in fact operated to cause the characteristic. It followed that for the purpose of 2(2)(c), a keeper need only be shown to have knowledge of the characteristic in some theoretical particular time or circumstance. The claimant argued therefore that the defendant's lack of knowledge that the horse may rear in the particular circumstance of suffering catastrophic injury did not defeat her claim.

The defendant countered that such an approach would leave many of the provisions of the Act with no value or meaning. The defendant maintained that a claimant must identify the particular time or circumstance in operation with reference to the facts of what occurred in order to satisfy section 2(2)(b) and show that the keeper knew of the characteristic in those particular times or circumstances.

The Court of Appeal agreed that the claimant's approach would render a defendant liable in any scenario in which an animal displayed a characteristic which was normal only at certain times, even if those times or circumstances were not in operation. An example was given of a dog which may act normally in biting someone approaching its newborn pups, and a keeper will likely have knowledge of this characteristic. The Act does not operate so that this characteristic displayed in these particular times or circumstances can be cited to establish sections 2(2)(b) and 2(2)(c), regardless of what has in fact caused the dog to bite. The Court of Appeal was not satisfied that the defences incorporated into the Act were sufficient to counter the impact of the claimant's approach.

The appeal was dismissed.

Comment

The Court of Appeal made it very clear that this is not a move towards a requirement of negligence on the part of the keeper. However, the decision recognises some rationale to the Act - a keeper should only be liable where he knows an animal may react in a particular way at a particular time, and that particular time or circumstance in fact operates, potentially giving the keeper an opportunity to limit or avoid the risk. A keeper will not be liable where he did not have any knowledge or any foresight of damage occurring in the manner that did in fact occur.

The Lords Justices accepted the expert opinion that the characteristic of rearing due to internal injury was not widely known. However, comment was made that more could have been made of the defendant's own factual knowledge as opposed to expert opinion. The claimant's own evidence to the effect that she knew napping or non-compliance may cause a horse to rear but that she had no knowledge that an internal injury could have caused the reaction was also considered in the context of the knowledge of an experienced equestrian. Knowledge under the Animals Act is subjective though may be constructive – based on the general knowledge of horse owners. Lay evidence as to the witnesses' general experiences, particularly when the parties and witnesses are experienced in keeping or working with the animal in question, can be significant.

The decision provides valuable confirmation of the interaction between the subsections of section 2(2). The defendant's knowledge must be considered in the context of the characteristic and particular time or circumstances identified by the claimant and shown to exist. The characteristic identified for 2(2)(b) must be the cause of the likelihood of damage or severe damage under 2(2)(a). The judgment demonstrates that there is no real novelty in this approach and cites a number of leading cases, in all of which the claimant had identified the particular time or circumstance.

The appeal focussed primarily on the claimant's argument that she did not need to identify any particular time or circumstance that in fact existed and could rely on the defendant's knowledge that the characteristic was normal in some theoretical particular time and circumstance. There was limited consideration of whether the characteristic of rearing as a result of a cardiovascular event was "normal" for the purpose of section 2(2)(b). This point is recorded in the judgment as agreed by the equine experts despite their own lack of experience of the characteristics. The decision can be compared to the 2008 Court of Appeal decision in McKenny v Foster where a cow's extreme behaviour was attributed to it reverting to a wild state due to agitation from being separated from its calf. This characteristic was held not to be normal within section 2(2)(b) and in addition, not to be known to the keeper under 2(2)(c).

The decision yet again highlights how deficiencies in drafting leave the Animals Act open to interpretation, and the Court of Appeal's clarification will offer some comfort to animal keepers.

If you require any further information, please contact Amy Jeffs.

Further Reading