The cow as a wild animal

McKenny and another v Foster (t/a Foster Partnership) [2008] EWCA Civ 173

A cow, a limousin, had been separated from her calf and kept in an enclosed field. The cow escaped, strayed onto a road and collided with a vehicle driven by the first claimant. Her partner, a passenger in the vehicle, died as a result of the collision. The judge held that the defendant, the keeper of the cow, was not strictly liable under the Animals Act 1971 s2 because, although the criteria of s2(2)(a) of the Act were fulfilled, the likelihood of the damage or of its being severe was not due to characteristics within s2(2)(b) that were known to the defendant. The claimant argued that the defendant knew of the cow’s extreme agitation and her desire to try to return to her recently weaned calf and, as the expert evidence suggested, that was what drove the cow to escape by climbing over a gate and jumping a cattle grid. The claimant submitted that there was a causative link between the cow’s propensity to be agitated and the accident, and that under s2(2)(b) the keeper of a domesticated animal was strictly liable for its normal behaviour when that behaviour occurred only at particular times or in particular circumstances, so long as the other requirements of s2(2) were met.