(back to preceding text)

    43. In other words, if the tendency of a horse to bolt when sufficiently alarmed is to be regarded as a normal characteristic of horses 'in particular circumstances' and, hence, a horse with this characteristic will meet requirement (b), it is not easy to conceive of circumstances where dangerous behaviour which is characteristic of a species will not satisfy requirement (b). A normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances. Thus the Cummings interpretation means that requirement (b) will be met in most cases where damage was caused by dangerous behaviour as described in requirement (a). Requirement (b) will be satisfied whenever the animal's conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal's behaviour was characteristic of the species in those circumstances.

    44. This is a cogent argument. Ultimately, despite this argument, on balance I prefer the Cummings interpretation of section 2(2)(b), for a combination of reasons. First, this interpretation accords more easily and naturally with the statutory language. Damage caused by an attack by a newly-calved cow or a dog on guard duty fits readily into the description of damage due to characteristics of a cow or a dog which are not normally found in cows or dogs except in particular circumstances. That is not so with the Breeden interpretation. The Breeden interpretation has the effect that these examples would fall outside both limbs of paragraph (b). This result makes sense only on the supposition that, by the references to abnormal characteristics in section 2(2)(b) (characteristics 'not normally found'), Parliament intended that strict liability should never arise if the animal's conduct was normal for the species in the circumstances in which it occurred. But the language of the paragraph provides no substantial support for this supposition.

    45. Secondly, the Breeden interpretation would depart radically from the legislative scheme recommended by the Law Commission. There is no evidence that any such departure was intended. Indeed, far from such a departure being intended, the wording of clause 2(2)(b) of the reformulated Animals Bill, subsequently enacted as section 2(2)(b) of the Animals Act, was plainly drawn from, and closely followed, the language of paragraphs 18(ii) and 91(iv) of the Law Commission's report.

    46. Thirdly, the 'lack of content' argument levelled against the Cummings interpretation cannot be pressed too far. The Cummings interpretation does not empty requirement (b) of all content. Some forms of accidental damage are instances where this requirement could operate. 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. This would satisfy requirement (a). 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'.

    47. For these reasons I agree with the interpretation of section 2(2)(b) adopted in Cummings v Granger [1977] QB 397 and Curtis v Betts [1990] 1 WLR 459 and by the Court of Appeal in the instant case. 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 does not take the case outside section 2(2)(b).

    48. I also agree with the decision of the Court of Appeal on the facts in the present case. Horses are large and heavy animals. But it was not this innate physical characteristic of the defendants' horses which caused the road accident. The horses escaped because they were terrified. They were still not behaving ordinarily when they careered over the main road, crashing into vehicles rather than the other way about. Hale LJ concluded that it was precisely because they were behaving in this unusual way caused by their panic that the road accident took place: see [2002] 2 WLR 566, 571. That conclusion, on the evidence, seems to me irrefutable and to be fatal to the case of Dr and Mrs Henley. I would dismiss this appeal.

LORD SLYNN OF HADLEY

My Lords,

    49. Section (2) of the Animals Act 1971 provides as follows:

"(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…"

    50. It is not surprising that different Courts in cases before the present one should have taken different views as to the meaning of section 2(2)(b) of the Act; nor that different views should emerge in the present case. The meaning of that part of the sub-section is not at all obvious or clear.

    51. It is however clear that 'the horse' is not a dangerous species of animal within the meaning of section 6(2) of the Act. To be such it has to satisfy two conditions. The first is that the animal is not commonly domesticated in this country; the second is that fully grown animals of the species "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". Whatever the position under the second condition it is plain that 'the horse' is commonly domesticated in the British Islands. Parliament has thus clearly excluded 'the horse' from sub-section (1) of section 2 of the Act as being an animal belonging to a dangerous species in respect of which the keeper of such an animal is liable for damage caused unless it is within the exceptions provided by section 5 of the Act, whether or not there is any fault on his part or knowledge by him of the likelihood of damage being caused.

    52. In sub-section (2) however Parliament has also clearly intended that under the statute (and apart from any possible liability for negligence at common law which has been negatived in the present case) the keeper of an animal not belonging to a dangerous species should, subject to the exceptions, in some circumstances be liable for damage caused by the animal. But that liability is subject to three conditions being satisfied. Conditions (a) and (c) are not in issue on this appeal, (a) being accepted as having been satisfied, in my view rightly, since it is likely that the damage if caused would be severe, and (c) the knowledge of the owners having been found to exist by the trial judge so that that condition is also satisfied. One therefore begins the consideration of (b) on the basis that in this case there was a likelihood of the damage if caused being severe. The question is thus whether such likelihood was due to characteristics of the animal (this particular horse) not normally being found in animals of the same species (domesticated horses) or not normally so found except at particular times or in particular circumstances.

    53. On this point I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote. I gratefully refer to his statement of the facts of the case and to his citation from the relevant authorities other than the passages which I have set out in this opinion. In the result I can express my views more briefly.

    54. Put simply the question whether the damage caused is due to characteristics normally found or not normally found in the species involves an inquiry as to whether the behaviour causing the damage is normal or abnormal for the species of animal. There is really no problem with the first part of section 2(2)(b)—do animals normally (are they prone to) bite or kick? The problem is with the second part—does one cancel the double negative 'not normally…except' and ask whether what was done in the special circumstances was normal behaviour for the species as a general rule; or is the right approach to ask whether what was done was normal for the species in the particular circumstances even if it will be abnormal in the absence of such circumstances. In Cummings v Granger [1977] QB 397, the first of these approaches was adopted. It was followed in Curtis v Betts [1990] 1 WLR 459 and in the Court of Appeal in the present case and commends itself to the majority of your Lordships. I refer to two passages. In Cummings v Granger Lord Denning MR at page 404 G to H said:

"Those characteristics—barking and running around to guard its territory—are not normally found in Alsatian dogs except in circumstances where they are used as guard dogs. Those circumstances are 'particular circumstances' within section 2(2)(b). It was due to those circumstances that the damage was likely to be severe if an intruder did enter on its territory. Section 2(2)(c): those characteristics were known to the defendant. It follows that the defendant is strictly liable unless he can bring himself within one of the exceptions in section 5."

    In Curtis v Betts Slade LJ said as follows at page 464:

"The broad purpose of requirement (b), as I read it, is to ensure that, even in a case falling within requirement (a), the defendant, subject to one exception, will still escape liability if, on the particular facts, the likelihood of damage was attributable to potentially dangerous characteristics of the animal which are normally found in animals of the same species. The one exception is this. The mere fact that a particular animal shared its potentially dangerous characteristics with other animals of the same species will not preclude the satisfaction of requirement (b) if on the particular facts the likelihood of damage was attributable to characteristics normally found in animals of the same species at times or in circumstances corresponding with those in which the damage actually occurred".

    On the other hand in Breeden v Lampard [21 March 1985 unreported] approved by Pill LJ in Gloster v Chief Constable of Greater Manchester Police [24 March 2000 unreported] the second approach was adopted. In Breeden v Lampard Lloyd LJ said at pp 9-10:

"The essential condition for liability now is that the characteristic which is known to the owner must be a characteristic which is abnormal for the species . . . If liability is based on the possession of some abnormal characteristic known to the owner, then I cannot see any sense in imposing liability when the animal is behaving in a perfectly normal way for all animals of that species in those circumstances, even though it would not be normal for those animals to behave in that way in other circumstances, for example, a bitch with pups or a horse kicking out when approached too suddenly, or too closely, from behind.

"In my view the purpose of the concluding words of s. 2(2)(b) of the Act may therefore be rather different. They may be designed to meet an argument by an owner:

"My horse did not have any abnormal characteristics even though it was liable to kick out all the time, because all horses are liable to kick out some of the time e.g. when crowded from behind"—in other words, the concluding words are refining what is meant by abnormality, not imposing a head of liability contrary to the main thrust of s. 2(2)(b) of the Act."

    55. In Breeden Oliver LJ said at p.12:

"for my part I share with my Lord, Lord Justice Lloyd, a puzzlement as to what is the meaning of the section because, like him, I cannot believe that Parliament intended to impose liability for what is essentially normal behaviour in all animals of that species".

    56. In Gloster v Chief Constable of Greater Manchester Police Pill LJ said:

"I respectfully agree with Lloyd LJ that the section is not concerned with animals behaving in a perfectly normal way for animals of the species or sub-species."

    57. Looking at the words in the context of the Act but without reference to the extracts from Hansard and the Report of the Law Commission to which your Lordships have been referred, it seems to me that the purpose of the legislation is, subject to specific exceptions, to impose strict liability for dangerous animals but to distinguish between normal and abnormal behaviour for non-dangerous animals. What is normal has to be considered (i) as a general rule and (ii) as an event in particular circumstances. The object of the provisions as I see it is to exclude strict liability not only for behaviour which is normal in the normal circumstances but also behaviour which is normal in particular (i.e. abnormal) circumstances, even if such behaviour would be abnormal in normal circumstances. There is thus strict liability for abnormal behaviour in normal circumstances and also for behaviour which is abnormal in abnormal (or particular) circumstances subject of course to para.(a) and (b) being satisfied. I do not think that the words used are intended to convert what is normal in abnormal circumstances to being abnormal in those circumstances because it would be abnormal in normal circumstances.

    58. If Parliament had intended that the keeper of a non-dangerous animal should be liable where the damage is caused by characteristics or behaviour which are normal at particular times, but not generally, (so that in effect the animal is to be treated as dangerous) it would have been sufficient to state quite simply that there should be liability if the likelihood of there being damage or if its being severe was due to characteristics of the animal which are not normally found in animals of the same species. The addition of the second part of (b) "are not normally so found except at particular times or in particular circumstances" should be read as meaning that if the characteristics are normally found in animals of the same species at particular times or in particular circumstances then there is no liability. It is only if the characteristics are abnormal at such times that liability attaches subject to paras. (a) and (c) being satisfied.

    59. To summarise, the intendment of para. (b) is that if the animal does what is normal for the species (a) usually or (b) only in special circumstances or at special times then it should not be treated as dangerous and there should be no strict liability, it being always remembered that liability in negligence is preserved.

    60. The Report of the Law Commission "Civil Liability for Animals" (1967) clearly indicated that the view of the Commission was that there should be strict liability for damage caused by an act which was not normal to the species in ordinary circumstances even if in certain circumstances it would be normal for members of the species so to act. Its draft Bill therefore accepted liability if "the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind or that any damage of that kind that it may cause is likely to be severe" and if the keeper knew of those characteristics. There was no provision reflecting or setting out the section 2(2)(b) which found itself in the Act. This and the Law Commission's statements in paras. 18, 19 and 91(iv) thus support the respondent's case. The draft Bill was debated in 1969 but after the election, resulting in a change of government, section 2(2)(b) was added. A change from the Law Commission's proposal was apparently intended and it is not to be assumed that Parliament in the second Bill before the new Parliament intended to follow fully the Commission's proposal. Moreover I do not find the debates in Parliament to which your Lordships have been referred helpful as to what is the true import of section 2(2)(b). I would accordingly allow the appeal and I accept the application of the law as he and I see it to the facts which is proposed by my noble and learned friend Lord Scott of Foscote.

    LORD HOBHOUSE OF WOODBOROUGH

    My Lords,

    61. In agreement with my noble and learned friends Lord Nicholls of Birkenhead and Lord Walker of Gestingthorpe, I would dismiss this appeal. I am grateful to them for their very full discussion of the previous decisions of the courts and the arguments which have been advanced on this appeal which I will not repeat and will more briefly explain my reasons for upholding the decision of the Court of Appeal in this case.

    62. The salient facts of this case are not now in dispute. Horses when severely frightened are liable mindlessly to panic even to the extent of self destruction. It is normal for horses when sufficiently alarmed by a threat to attempt to flee from that threat, to ignore obstacles in their path, and when once able to flee to continue in flight for a considerable distance even beyond the point at which the perceived threat was detectable. It was also normal that, when encountering on the main road a further aversive situation beyond that which had caused their escape, the horse's fear would not only continue but heighten. When stressed, nervous activity increases and physiological changes occur. (See Agreed Facts, paragraph 3.6.) The defendants, the owners and statutory keepers of the three horses, knew that their horses would display these characteristics if so seriously frightened as to panic.

    63. On the night in question, at between 12.0 midnight and 12.30am, the horses were seriously frightened by some unascertained cause. They panicked. They charged down and flattened the fence of their field. They fled towards the A380 main road where they encountered motor traffic. This aggravated their existing state of panic. In this state of panic, two of the horses crashed into cars. In one incident, there were no personal injuries but the car was a write-off and the horse was killed. In the other, the horse charged into the side of the car of Mr Mirvahedy, the plaintiff in this case. The roof of the car was peeled off. Mr Mirvahedy suffered serious head and facial injuries. This horse was also killed by the impact. It is not now in dispute that the damage and injuries to Mr Mirvahedy and his car were caused by the horse and were severe.

    64. The question whether the defendants are liable to the plaintiff is to be answered by construing and applying the Animals Act 1971. It is not now suggested that the defendants acted unreasonably or were negligent. Nor is it suggested that the plaintiff was in any way to blame.

    65. In my view the relevant provisions of the Act have a plain and clear meaning. I do not see any justification for having regard to parliamentary materials nor do I consider that the materials to which your lordships were referred are sufficiently clear in themselves to be acceptable as aids to the construction of the statute. At least one parliamentary statement was patently based upon a misunderstanding.

    66. The Act was a reforming act and followed from Report No.13 of the Law Commission: Civil Liability for Animals (1967). Without adopting all the recommendations of the Law Commission, the Act completely recasts the previous law but has retained a recognisable structure derived from the previous law. Thus it retains a distinct category for wild animals "not commonly domesticated in the British Islands", s.6(2)(a) and s.2(1); and has a residual category which makes use of the former scienter rule based on the keeper's knowledge of the particular animal's actual characteristics, s.2(2)(c).

    67. Another feature of the Act is that it uses a double-barrelled concept of dangerousness with alternative criteria either of which suffices. The first is the familiar characteristic that the animal or its species is, unless restrained, likely to cause severe damage; this corresponds to what has sometimes been called a vicious propensity. The second is directed not to the animal's propensities, be they vicious or benign, but to the consequences of anything it may do. Thus the alternative criterion is that it is an animal of which it can be said that "any damage [it] may cause is likely to be severe". These two alternative criteria are used in conjunction with the criterion of non-domestication to define what is a dangerous species of animal in s.6(2). Using the first alternative, a tiger is a dangerous animal. It is likely, unless restrained, to cause severe injuries to humans: that is its nature. Using the second alternative, an Indian elephant is a dangerous animal, not because it is likely to injure any one, but because, if it does, the injury is likely, as a result of its weight and bulk, to be severe: cf Behrens v Bertram Mills Circus [1957] 2 QB 1. This is a statement about its physical capacity to injure and its inability to limit the consequences of that capacity not about its inclination to injure. In s.2(1) there is a strict liability for damage caused by dangerous animals as defined in s.6(2). In s.2(2) there is a scienter liability for any damage caused by any other animal which is, inter alia, damage of a kind which the animal in question was, unless restrained, likely to cause or which, if caused by that animal, was likely to be severe: s.2(2)(a).

    68. This is the starting point for the legal question which has arisen in this case. The damage to Mr Mirvahedy and his car by the panicking horse when it charged into his car and landed on its roof was and was likely to be severe, (2)(a). Similarly the keepers of the horse knew of the characteristics of horses in general and their horse in particular which made such damage a likely consequence of such conduct in a state of panic, (2)(c). It is accepted that it is not a normal characteristic of horses to cause such damage. They may have the capacity to kill a man by kicking him on the head but it is not likely that any normal conduct of theirs will lead to that result nor that they have a normal propensity to attack human beings. If it had been the case that the horse in question was known to have characteristics which made such injuries likely in the ordinary course, there would be no question but that the requirements for liability under s.2(2) would have been satisfied and the defendants would be liable. But that is not this case. The question is whether the other alternative in s.2(2)(b) is satisfied: whether the likelihood of the damage or of its being severe was due to characteristics of the horse which are not normally found in horses except at particular times or in particular circumstances.

    69. Horses are not normally in a mindless state of panic nor do they normally ignore obstacles in their path. These characteristics are normally only found in horses in circumstances where they have been very seriously frightened. It is only in such circumstances that it becomes likely that, due to these characteristics, the horse will cause severe damage. This case clearly comes within the words of s.2(2)(b). There is no ambiguity either about the facts of this case or about the meaning of paragraph (b).

    70. The Report of the Law Commission supported such a conclusion in its recommendations for the retention of the scienter principle: see paragraphs 17, 18 and 91 of the Report. Using the example of a bitch with puppies, the Commission said (at paragraph 18(ii)):

"In our view the fact that a particular animal belonging to a non-dangerous species shares [dangerous] characteristics with other animals within the species, either at a particular age, at certain times of the year or in special conditions, should not preclude liability where the keeper knows of the presence of these characteristics in the animal at the time of the injury. If the keeper of a bitch with a litter knows that it is prone to bite strangers, then even if this is a common characteristic of bitches at such a time, we think that the keeper should be strictly liable, subject to the permissible defences ....."

    71. The contrary argument seems to be based upon the view that any normal behaviour of a domesticated animal should not give rise to liability. This point was clearly put in the judgment of Lloyd LJ in Breeden v Lampard from which my noble and learned friend Lord Nicholls has already quoted. It is true that there is an implicit assumption of fact in s.2(2) that domesticated animals are not normally dangerous. But the purpose of paragraph (b) is to make provision for those that are. It deals with two specific categories where that assumption of fact is falsified. The first is that of an animal which is possessed of a characteristic, not normally found in animals of the same species, which makes it dangerous. The second is an animal which, although belonging to a species which does not normally have dangerous characteristics, nevertheless has dangerous characteristics at particular times or in particular circumstances. The essence of these provisions is the falsification of the assumption, in the first because of the departure of the individual from the norm for its species, in the second because of the introduction of special factors. Criticisms can be, and have been, made of the drafting of paragraphs (a) and (b) of s.2(2); but they should not be made, and are not justified, in this respect of the drafting of paragraph (b). It does not lack coherence.

    72. The statute, in this respect following the recommendation of the Law Commission, had to reflect a choice as to the division of risk between the keeper of an animal and members of the general public. Neither is blameworthy but it is the member of the public who suffers the injury or damage and it is the keeper who knows of the characteristics of the animal which make it dangerous and liable to cause such injury or damage. The element of knowledge makes the choice a coherent one but it, in any event, was a choice which it was for the Legislature to make.

    73. For these reasons, which accord in most respects with those given by my noble and learned friend Lord Nicholls and to be given by my noble and learned friend Lord Walker, I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    74. The issue in this appeal is the extent of the strict liability for damage imposed by the Animals Act 1971 on the owners, or keepers, of animals which do not belong to a dangerous species. The issue turns on the correct construction of section 2(2)(b), and to a lesser extent, section 2(2)(a), of the Act. Over the 30 years or so that the Act has been in force different judicial views have been expressed on this issue of construction. However this is the first time that the issue has reached your Lordships' House. An authoritative ruling is overdue.