Clark v Bowlt [2006] EWCA Civ 978

Case No B2/2005/2720

[2006] EWCA Civ 978

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT

(HIS HONOUR JUDGE WALTON)

Venue Royal Courts of Justice

Date Monday 26 June 2006

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Phillips of Worth Matravers)

LORD JUSTICE BUXTON

and

LORD JUSTICE SEDLEY

Between

RICHARD JAMES CLARKAppellant

B E T W E E N:

- v -

Between

KEREN LESLEY BOWLTRespondent

(Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4A 2HD

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Official Shorthand Writers to the Court)

MR GILES MOONEY (instructed by the Legal Department,

Equine & Livestock Insurance Co Ltd, York YO26 9SZ)

appeared for APPELLANT

MR WILLIAM McCORMICK (instructed by Messrs Fanbrooks, London EC1M)

appeared for RESPONDENT

J U D G M E N T

Monday 26 June 2006

THE LORD CHIEF JUSTICE:

[1]On 28 October 2001 the respondent, Mr Clark, was driving his car along the A196 when he came into collision with a horse, ridden by the appellant, Mrs Bowlt. Mr Clark sustained minor whiplash injuries and some damage to his car. Mrs Bowlt sustained somewhat more serious injuries. Mr Clark sued Mrs Bowlt in negligence and under section 2 of the Animals Act 1971. Mrs Bowlt counterclaimed, alleging that it was Mr Clark who had been negligent.

[2]On 16 November 2005 His Honour Judge Walton, sitting in the Newcastle County Court, held that neither party had been negligent but that Mr Clark's claim under section 2 succeeded. He awarded damages which totalled a little over £8,000. Mrs Bowlt now appeals against that judgment with permission granted by Tuckey LJ, who remarked that the case raised points of general importance.

The Facts

[3]No challenge is made of the facts found by the judge. They can be summarised quite shortly. On 28 October 2001 Mr Clark was driving westward between Guide Post and Morpeth in Northumberland. He slowed down to about 35mph because he was approaching a junction. He then saw, about 50 yards ahead, two horses being ridden on the narrow grass verge on his near side, proceeding in the same direction that he was. One was a horse called Chance, being ridden by Mrs Bowlt. He slowed further until his speed had been reduced to 15mph or less. The horses showed no sign of panic, but as he was about to pass Chance, the horse moved into the road in a movement that could not be controlled by Mrs Bowlt and hit the front nearside of the car.

The Animals Act 1971

[4]The relevant provisions of the Animals Act provide as follows:

"Liability for damage done by dangerous animals 2. -- 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."

Section 6 provides:

"2. A dangerous species is a species -- a. which is not commonly domesticated in the British Islands; and b. whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe."

Mirvahedy v Henley [2003] UKHL 16; [2003] 2 AC 491

[5]Section 2 of the Animals Act ("section 2") has given rise to difficulties of interpretation. These were largely resolved by the decision of the House of Lords in Mirvahedy. That case also involved a collision between a horse and a car. The defendants were the owners of a horse, which they kept with two other horses in a field. Something badly frightened the horses, although it was never discovered what this was. The horses pushed over an electric fence and a wooden fence and stampeded along a minor road for about a mile before reaching a busy road, where one collided with a car driven by the claimant, causing him serious injuries. The defendants had not been negligent. The issue was whether they were under strict liability for the claimant's injuries pursuant to the provisions of section 2.

[6]The issue turned on the true interpretation of section 2(b). Lord Nicholls of Birkenhead remarked that it was accepted that requirement (a) was satisfied and that the judge's finding that requirement (c) was satisfied was not challenged.

[7]Section 2(b) contains an ambiguity. Its first meaning treats the provision as describing two different categories of damage so that, subject to the other requirements of the section, liability will attach(i) in respect of damage which was likely, or was likely to be severe, because of characteristics not usually found in animals of the same species, and

(ii) in respect of damage which, while not likely, or likely to be severe, because of the characteristics of the animals of the same species in normal circumstances was likely, or likely to be severe, because of characteristics of animals of the same species at a particular time or in particular circumstances.

[8]The alternative to the first meaning treats section 2(b) as describing a single category of damage, namely damage which was likely, or likely to be severe, because of characteristics not normally found in animals of the same species even if they were found in such animals at particular times or in particular circumstances.

[9]Three members of the House of Lords held that section 2(b) had the former meaning; two that it had the latter meaning.

The Judgment

[10]The judge attempted to apply the decision in Mirvahedy to the facts of this case in the following passages of his judgment:

"24. .... It cannot be said here that in any sense Chance was an animal of vicious propensity -- quite the opposite -- but it does seem to me that in the circumstances which prevailed on the afternoon of this incident, if damage was caused by the animal it was likely to be severe. Chance was a heavy animal, some 600 lbs in the estimation of Mrs Bowlt. The horse was in close proximity to vehicular traffic on an A class road with a 60mph speed limit. If, as it did, the animal decided to move into the path of a car, the damage was likely to be severe. In short, the second part of subsection (a) of subsection (2) seems to me to be satisfied for similar reasons to those expressed by Lord Hobhouse when considering the application of the principles as he described them in the Mirvahedy case. 25. So far as subsection (b) is concerned, the relevant characteristic has already been described. Horses generally and this horse in particular, normally follow the direction of their rider but in particular times and in particular circumstances, horses generally (as did this horse) can assert an inclination to move otherwise than as directed. It is not normal for a horse to move into the path of a moving car -- no one contended it was normal for this horse -- but in particular times and in particular circumstances, Chance could assert her own will against that of her rider and, on this occasion, that placed her in close proximity to the claimant's car. The common sense of this is that she then became alarmed. I do not believe the court requires expert evidence to conclude that even a placid horse, finding itself in that situation, could become frightened. 26. Whether she did become frightened may not be central to the application of subsection (b). It does seem unrealistic, as I have already said, to be overly concerned with the horse's motivation at different stages of such a brief episode. It seems to me sufficient in terms of the Act that she had a characteristic that could and did lead her to move near to a moving car. That was a characteristic which would only arise at particular times and in particular circumstances. It arose on the relevant occasion and caused the accident. 27. Finally, subsection (c): the defendant is required to know of the relevant characteristic. She did, on her own admission. It may not have been demonstrated to her in this particular way before, but you can know of something, even if it has not actually arisen. She knew that the horse could decide upon some movement of its own. Frankly, if it had been put to her before the accident, I think she would have been bound to concede Chance could decide to move into the road. I consider she had knowledge, for the purposes of subsection (c). In my judgment, the claim under the Act is, for these reasons, made out."

Discussion

[11]I am afraid that in this rather difficult area of the law the judge has got into a muddle. The first limb of section 2(a) required the judge to consider whether the damage caused by Chance was damage which Chance, unless restrained, was likely to cause. The judge did not address that question. The judge held that the alternative limb of section 2(a) was satisfied, namely that if Chance caused damage it was likely to be severe. He concluded that this requirement was satisfied because the horse was a heavy animal, weighing 600 lbs. I would not quarrel with this conclusion. Indeed, it echoed the reasoning of Lord Nicholls in paragraph 46 of his opinion in Mirvahedy:

"46. .... 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.

(a) "

[12]But Lord Nicholls went on to observe:

"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'."

When the judge came to address requirement (b) he should have asked himself whether the likelihood of the damage being severe was due to characteristics of the animal not normally found in animals of the same species. The relevant characteristic was the weight of the animal. Had the judge asked the right question, he would have been driven to conclude that Chance's weight was a normal characteristic of her species, so that requirement (b) was not satisfied.

[13]Instead of asking the right question the judge identified as the relevant characteristic the propensity of a horse "in particular times and in particular circumstances" to "assert an inclination to move otherwise than as directed". There are the following difficulties with the judge's conclusion that this equine propensity satisfied the requirements of (b): (i). I doubt whether a propensity occasionally to move otherwise than as directed can be described as a characteristic of an animal. (ii). If such a propensity can be described as a characteristic, then I question the judge's assertion that it is one that is not normally found in horses "except at particular times and in particular circumstances". The judge failed to identify either the particular times or the particular circumstances when this characteristic manifested itself. Indeed in saying that this was a characteristic of horses generally the judge came close to accepting that the propensity was a normal characteristic of a horse, not one that only arose at a particular time or in particular circumstances. (iii). The judge failed to recognise that the characteristic that he was considering was one relevant to the first limb of requirement (a). It was relevant to the likelihood of Chance causing the damage that had occurred. It only became relevant to consider this characteristic if the judge had first given an affirmative answer to the question posed by the first limb of (a), namely: was the damage which Chance caused damage of a kind which Chance, unless restrained, was likely to cause? As I have said, the judge never addressed that question. It seems to me that it is necessary to do so. Was the damage caused by Chance damage of a kind which, unless restrained, Chance was likely to cause?

[14]The keeper of a domestic animal can only be liable under the first limb of section 2(a) if it has caused damage in circumstances where, unless tethered, it was likely to cause that damage. Where it is a characteristic of an animal only to cause damage at a particular time or in particular circumstances, the animal, if normal, will not have been likely to cause damage save at that particular time or in those particular circumstances. A horse is liable to cause damage of the kind caused by Chance if given a severe fright. Chance was not, however, given such a fright. Can it be said, nonetheless, that Chance was likely to cause the damage which she caused by moving into collision with Mr Clark's car? On the judge's findings of fact, it seems to me that the answer is plainly "No".

[15]The judge, rightly in my view, described the action of Chance as "an uncontrolled movement of the horse that continued until the horse and car came into contact". He said that it would be artificial to break the sequence of movements down to any greater extent given that all of this was happening in a very short space of time: see paragraphs 16 and 26 of his judgment. The evidence suggests that this was an untoward and unlikely mishap. The judge found that horses in general, and Chance in particular, generally follow the direction of their rider. That surely was what was likely to happen on this occasion.

The judge made the following findings about Mr Clark's behaviour:

"17. .... The claimant did not fail to do anything that a reasonably careful driver should have done. He seems to me to have approached the horses with caution and moved to the centre of the road giving room to animals that, at that stage, were on the verge. His speed was 15mph at most and the horses had given no sign of panic. I do not consider it was necessary for him to stop altogether ...."

The judge could not have made these findings, so it seems to me, if the circumstances were such that Chance was likely, unless tethered, to cause the damage which subsequently occurred.

[17]In summary, on the facts of this case Mr Clark failed to establish that the linked requirements of either limb of section 2(a) and section 2(b) were satisfied. The accident that occurred was an unlikely mischance for which no one was to blame and which attracted no liability under the provisions of section 2 of the Animals Act 1971. For these reasons I would allow this appeal.

LORD JUSTICE BUXTON: I agree.

LORD JUSTICE SEDLEY: As the Lord Chief Justice has shown, the favourable finding that it was the horse's weight which brought the case within section 2(2)(a) is the respondent's undoing under section 2(2)(b).

[20]However, I do not think that the result could have been any different if the judge's starting point had been that the damage was of a kind which all horses, however equable and well governed, are capable of causing.

[21]The difficulty faced by the respondent upon that premise is that if it generates liability under section 2(2) in this case, there will be few, if any, cases of damage done by a domesticated animal which do not render the keeper liable -- the very reverse of the situation which the 1971 Act was designed to bring about.

[22]The Act was passed, as section 1(1)(a) recounts, to replace the over-complex common law rules which imposed strict liability for harm done by reason of a domestic animal's known or knowable propensities with the apparently clear and simple formula in section 2(2). Like many such lamps its flame has since flickered in the wind of reality.

[23]Mr McCormick for the respondent candidly accepts that his argument would mean that there were few if any cases of aberrant behaviour by a domesticated animal which did not fix the keeper with liability. Lord Nicholls in paragraph 46 of his speech in Mirvahedy, which my Lord has quoted, recognised this danger and gave an example of a case which might fall outside the Act, namely a cow which, if it stumbled, would be likely to hurt someone because of its weight, but whose weight was a normal characteristic of the species. That is not far from this case, and in order to hold the judgment below, Mr McCormick recognises that he would have to close even this escape.

[24]In other words, as it seems to me, the respondent's case attempts to prove too much. Section 2(2) is not intended to render the keepers of domesticated animals routinely liable for damage which results from characteristics common to the species. It requires something particular, and there was nothing of the specified kind to render the keeper liable here.

[25]I, too, would therefore allow this appeal.

ORDER

Appeal allowed; the claim dismissed; the Part 20 claim dismissed; no order for costs of the trial below; the respondent to pay the appellant's costs in the sum of £7,000; leave to appeal refused.