Liability for panicking horses

Mirvahedy v Henley and another (H of L TLR 24 March)

By the narrowest of margins, 3–2, the House of Lords has upheld the Court of Appeal’s decision (21/ LL p34) that even where a horse has been adequately fenced and its keepers have not been negligent, the keeper is strictly liable if the horse panics and crashes through the fence causing injury and damage. Section 2(1) of the Animals Act 1971 imposes strict liability on the keeper of an animal of a dangerous species for any damage caused by it. If one chose to keep a dangerous animal not commonly domesticated in this country, one is liable for damage done by it. It mattered not that one took every caution to prevent it escaping, nor that one did not realise that it was dangerous. Section 2(2) establishes a different regime where the animal does not belong to a dangerous species. In these circumstances a keeper is liable 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 …’ Nothing turned in the present case on the requirements (a) and (c), which were satisfied. The crucial requirement was (b), which contains two classes. The first required that the animal had characteristics ‘which are not normally in animals of the same species’. The second required that it had characteristics which were not normally found in animals of the same species ‘except at particular times or in particular circumstances’. Unfortunately the language of s2(2) was itself opaque, even though the purpose of the Act had been to simplify the law. The draftsman’s zeal for brevity had led to obscurity. Section 2(2) had attracted much judicial obloquy. There are many species that are normally docile that in certain circumstances or at particular times behave differently, even dangerously Dogs are not normally prone to bite all and sundry. But a dog guarding its territory or a bitch with a litter whose pups were being threatened, might well be vicious: it was behaving dangerously, but was doing so in a manner characteristic of its species in the circumstances. Did it fall within the second class? On that there had been a difference of judicial opinion. Some judges had held that such a case was within the second class – it fell within the literal language of the Act. Other judges had held that that second case was outside the second class. The second limb of s2(2)(b) did not treat as abnormal, behaviour that was characteristic of the species in the circumstances in which it had occurred. Characteristics not normally found in the species did not cease to be abnormal because in certain circumstances or at certain times all animals of a species behave in that way. The former interpretation was to be preferred. The fact that an animal’s behaviour, although not normal behaviour for animals of that species, was nevertheless normal behaviour for the species in the particular circumstances did not take the case outside s2(2)(b). The horses had escaped because they were terrified. The horse had still not been behaving ordinarily when it careered over the main road crashing into the claimant’s vehicle. It was precisely because the horses had been behaving in that unusual way, caused by their panic, that the accident had taken place. Accordingly, there was strict liability under s2(2)(b) of the Act.