Mr Seymour-Williams employed Ms Ford as a hunt groom but said that the horse she was riding was not his and that, even though the horse was kept in his yard, he was not “the keeper.” Furthermore, he said, Ms Ford was not riding in the course of her employment at the time of her accident. These were important questions for the case for two reasons:
- Only “keepers” can be held liable for the behaviour of animals;
- Employees are a specially protected group of Claimants about whom it cannot be said that they volunteered to accept the inevitable risks of their work with animals.
Following a three-day trial to determine who was liable for Ms Ford’s injury, the Trial judge decided these questions in her favour. Unfortunately for her though, one question was decided against her and the claim was dismissed.
What the Animals Act says
The key issue for the judge was the interaction between section 2(2)(b) and 2(2)(c) of the Animals Act 1971. The judge’s reasoning was sufficiently unclear though that Ms Ford was granted permission to appeal to the Court of Appeal.
Section 2(2) provides:
“Liability for damage done by dangerous animals
…(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 the 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.”
The specific (overlapping) issues of law raised on appeal were, when dealing with characteristics not normally found in animals of the same species except at particular times or in particular circumstances (i.e. those cases falling within the second limb in s. 2(2)(b)):
i) whether identification of the “particular times” or “particular circumstances” when the relevant characteristic arises is necessary for the purpose of s. 2(2)(b);
ii) whether knowledge for the purpose of s. 2(2)(c) requires knowledge of those “particular times” or “particular circumstances”.
It is worth reminding ourselves that section 2(2)(c) states merely that the “characteristics [identified for the purpose of sub-section(b)] were known to the keeper…” One argument was that the words do not state that the keeper must know that the characteristics could be triggered by circumstances identified. That was important because, whilst the Defendant conceded that he knew horses might rear because of panic or disobedience he denied he was aware that a horse might rear if it had a cardiovascular event.
“No smoke without fire?” – the legal arguments relating to sections 2(2)b and 2(2)c
Ms Ford’s team contended that that the Trial judge was wrong to find that identification of the “particular times” or “particular circumstances” is necessary. This, on the basis that in the cases such as Welsh v Stokes and, of course, Mirvahedy v Henley cited above, whilst the characteristics (of rearing in Welsh and bolting in fright in Mirvahedy) could be easily identified, nobody knew the precise circumstances triggering that behaviour.
The core argument was that because rearing happens only in particular circumstances (per the expert evidence) it is self-evident that such particular circumstances must have existed.
The subsidiary point was that it was found the cardiovascular event caused panic which in turn caused disobedience. And, as shown above, panic or disobedience in this case should be sufficient to establish the requirements of section 2(2)(b); one need not consider what caused the panic or disobedience. The Court of Appeal did not accept the factual premise of this argument although their reasoning was not altogether clear.
Ms Ford’s team said that it was unfair that claimants such as Ms Welsh or Mr Mirvahedy were able to establish that section 2(2)(c) was satisfied despite not knowing the root cause of the horse’s behaviour. Ms Ford seemed to be at a disadvantage because there was a greater level of evidence and knowledge about the root cause of Tommy’s behaviour. The Trial judge had decided that Tommy had died from a cardiovascular event and the Defendant had said he was not aware that cardiovascular events could trigger a rear. Her case was that the Court in the Mirvahedy and Welsh cases, for example, had not seen the need to require a Claimant to prove the precise trigger. Knowledge that it was fear or disobedience was enough.
The Defendant contended not only that the Court must decide what the particular times or circumstances were, but also that defendants must be shown to know that the particular times or circumstances pertained at the time of the accident. It was said on his behalf that in the classic example of a bitch with pups that not only was it necessary to know that such a dog may bite defensively, but also that the dog did in fact have pups at the time.
Suffice it to say, the Defendant’s argument gained no traction. As William Davis LJ observed during submissions, a keeper need not know that “a bang” is going to occur, merely that if “a bang” does occur the animal may behave in a particular way.