The case of Ford v Seymour–Williams has been making its way up the Courts, reaching the court of Appeal this month.
The Claimant was employed by the Defendant as a groom. As a “perk” of her employment, she was riding a horse which was kept at the Defendant’s premises. Without warning, the horse reared up and fell, crushing the Claimant who was severely injured. The horse died within minutes. The experts believed that either there had been a cardiovascular incident which caused the horse to rear, or it may have just reared for reasons unknown and been killed by the fall.
The Claimant sued for damages with the main action focussed on the interpretation of s2(2)(b) of the Animals Act. That provision requires that ‘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.’ For completeness, s2(2)(c) requires that ‘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’.
The Claimant argued at trial in the High Court that there was no requirement for her to prove the exact circumstances in which those characteristics of the animal might arise, in accordance with previous decisions. The defence position was that deciding cases on the basis of relatively vague possibilities would lead to an inevitable (and unintended) broadening of the scope of the Act.
The Defendant asserted that:
- the most likely cause of the horse rearing was a cardiovascular event, which could not amount to the “characteristic behaviour” required by the Act;
- Specifically described, and repeated, behaviour by the animal is needed for it to be a “characteristic”;
- If the experts instructed by the parties to the claim were not familiar with a cardiovascular event causing a horse to rear, then a keeper of a horse could not be expected to have that knowledge either, and therefore the third limb of the section 2(2) test could not be satisfied.
The High Court found that broad knowledge that horses can rear for any reason was not enough to satisfy the s2(2) test, and the claim was dismissed.
The Claimant appealed and the Court of Appeal has recently considered the case. The central issues were again (1) whether for the purposes of s2(2)(b) it was necessary to identify the particular times when, or circumstances in which, the characteristic of the animal would arise, and (2) whether s2(2)(c) required the keeper to have knowledge of those particular times or circumstances.
The appeal was dismissed.
The Court of Appeal found that there is clear authority from previous cases establishing that behaviour such as a horse rearing could be a “characteristic” for the purposes of s2(2)(b) and that, for the purposes of s2(2)(c), the keeper need only have knowledge of that characteristic in horses in general, and not in the individual horse in question.
However, in previous cases where a keeper of an animal was held liable, the Claimant had identified not just the characteristic itself, but also the particular time when, or the circumstance in which, that characteristic was likely to manifest itself.
In the previous cases where Claimants had succeeded, specific events had triggered the behaviour in the animal, and the keepers had known that such an event could be a trigger.
In Ford, the characteristic not normally found in a horse was rearing, and the “particular circumstances” in which a horse might rear included a cardiovascular event.
Identifying the time or circumstance in which the characteristic might manifest itself is also key to establishing whether the keeper had requisite knowledge for the purposes of s2(2)(c). Whilst the expert witnesses found that a cardiovascular event fell into the “particular time or circumstance” test, it was a theoretical possibility that this would occur. The Court of Appeal concluded that the trial Judge was entitled to accept the Defendant’s evidence that he had no personal experience of a horse rearing up in pain, and that therefore the knowledge test required by s2(2)(c) was not satisfied in this case.
At first sight this is a welcome decision for Defendants and insurers. Claimants are still not required to establish fault on the keeper’s part to satisfy s2(2)(b), but the keeper will not be liable unless they had knowledge of the particular times when, or circumstances in which, the relevant characteristic of their animal would arise.
But will the principle set out in a claim involving a horse succeed with a hound?
Many dog bite cases are brought on the basis that the characteristic of biting is well known in dogs in general. Similarly, it is generally known that biting occurs at certain times and in certain situations, such as when the animal protecting its young or owners, or is being territorial, and it would be difficult for a keeper to argue that he had no knowledge of those characteristics.
However each case must be considered on its own facts. It may be possible to apply the arguments in Ford to other situations, particularly those where the animal’s reaction and subsequent injury are less “routine”, for example where a dog knocks over a Claimant, or the Claimant approaches and startles the dog. It will be important to take careful evidence from the keeper/insured.
Most articles about the Animals Act end with a comment that reforms of the Act are needed, and this one is no exception. That said, there seems to be no move as yet to progress this.
If you would like to discuss this topic in more detail, please contact Claire Jones, Associate.