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Mirvahedy (FC) (Respondent) v. Henley and another (Appellants)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Mirvahedy (FC) (Respondent) v. Henley and another (Appellants)
THURSDAY 20 MARCH 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Mirvahedy (FC) (Respondent) v. Henley and another (Appellants)
Lord Nicholls of Birkenhead
1. Shortly after midnight on the night of 28-29 August 1996 Hossein Mirvahedy was driving home from his work as manager of a hotel in Devon. He was driving along a dual carriageway stretch of the A380 from Torquay to Exeter. His car came into collision with a horse when it ran across the road and crashed into the car. He suffered serious personal injuries.
2. The horse belonged to Andrew and Susan Henley. It had escaped from the field where it was kept. Dr and Mrs Henley lived about a mile from where the accident occurred. In an adjacent field they kept three horses, of which the horse involved in the accident was one. On the night of the accident all three horses stampeded out of a corner of their field. They pushed over an electric wire fence and a surrounding wooden fence, and then trampled through a strip of tall bracken and vegetation. Something seems to have frightened them very badly, but nobody knows what it was. The horses fled 300 yards up a track and then for a distance of almost a mile along a minor road before reaching the busy A380 road.
3. Such behaviour is usual in horses when sufficiently alarmed by a threat. They attempt to flee, ignoring obstacles in their way, and are apt to continue in their flight for a considerable distance, even beyond the point where the perceived threat was detectable.
4. Mr Mirvahedy brought a claim against Dr and Mrs Henley as keepers of the horse. He based his claim in negligence. He said Dr and Mrs Henley had not fenced the field properly. The judge, Judge O'Malley sitting in the Exeter County Court, rejected this claim. No appeal was pursued from this decision. Mr Mirvahedy also advanced a claim under section 2 of the Animals Act 1971. He asserted that, even if they were not at fault, Dr and Mrs Henley were liable for the damage caused by their runaway horse. Under the Animals Act they were strictly liable. They were liable independently of fault. That claim, too, failed before the judge. It succeeded on appeal to the Court of Appeal: see  EWCA Civ 1749,  2 WLR 566. The court comprised Dame Elizabeth Butler-Sloss P and Hale and Keene LJJ. Dr and Mrs Henley then appealed to your Lordships' House.
5. The appeal raises one question: is the keeper of an animal such as a horse strictly liable for damage caused by the animal when the animal's behaviour in the circumstances was in no way abnormal for an animal of the species in those circumstances?
6. Lest there be any misunderstanding one point should be clarified at the outset. Considered as a matter of social policy, there are arguments in favour of answering this question yes, and arguments in favour of answering no. It may be said that the loss should fall on the person who chooses to keep an animal which is known to be dangerous in some circumstances. He is aware of the risks involved, and he should bear the risks. On the other hand, it can be said that, negligence apart, everyone must take the risks associated with the ordinary characteristics of animals commonly kept in this country. These risks are part of the normal give and take of life in this country.
7. These considerations, and other arguments of this nature, are matters for Parliament. They are not matters for this House acting in its judicial capacity. It is not for the courts to form a view on which of these arguments seems the more weighty when Parliament has already carried out this exercise. Parliament must be taken to have weighed the various factors, and balanced the conflicting interests of those who keep animals and those who are injured by them, when enacting the Animals Act 1971. The answer to the question I have posed lies in interpreting the provisions of this Act, and in particular section 2(2), in accordance with established principles of statutory interpretation.Animals Act 1971
8. The common law concerning liability for animals was notoriously intricate and complicated. How the common law would have answered the question raised by this appeal is not altogether clear. The common law may have drawn a distinction between a domestic animal which, contrary to the nature of its species, has a propensity to attack (a 'vicious' propensity), and a domestic animal which, without a propensity to attack, has a special propensity to cause damage. Strict liability, under the old 'scienter' principle, may have been applicable only in the former case: see the discussion in the report of the Law Commission on Civil Liability for Animals (1967) (Law Com no 13), paragraph 6, page 7, and the seemingly differing views of Willmer LJ and Diplock LJ in Fitzgerald v E D and A D Cooke Bourne (Farms) Ltd  1 QB 249, 258-259, and 270.
9. The purpose of the Animals Act 1971 was to simplify the law. Sections 1 to 6 of the Act made new provision regarding strict liability for damage done by animals. They replace the old rules of the common law. Section 2 contains provisions relating to liability for damage done by dangerous animals. Unfortunately the language of section 2(2) is itself opaque. In this instance the parliamentary draftsman's zeal for brevity has led to obscurity. Over the years section 2(2) has attracted much judicial obloquy.
10. Section 2 places all animals into one or other of two categories, according to their species. Animals either belong to a dangerous species, or they do not. The circumstances in which the keeper of an animal is liable for damage caused by his animal depend upon the category to which the animal belongs.
11. A dangerous species of animal is a species which meets two requirements, set out in section 6(2). A species can include a sub-species or a variety: see section 11. The first requirement (a) is that the species is not commonly domesticated in the British Islands. The second requirement (b) 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'. In short, they are dangerous animals.
12. A tiger satisfies both requirements. It is not commonly domesticated in this country, and it is dangerous. A horse does not satisfy the first requirement. Unlike tigers, horses are commonly domesticated here. So tigers, satisfying both requirements, are a dangerous species of animals. Horses, which do not satisfy the two requirements, are not.
Section 2 of the Animals Act 1971
13. Section 2(1) imposes upon the keeper of an animal of a dangerous species strict liability for any damage caused by the animal:
If you choose to keep a dangerous animal not commonly domesticated in this country, you are liable for damage done by the animal. It matters not that you take every precaution to prevent the animal escaping. You may not realise that the animal is dangerous. Liability is independent of fault. Liability is independent of knowledge of the animal's dangerous characteristics. You are liable, subject only to certain defences of general application set out in section 5. These defences apply where the damage was due wholly to the fault of the claimant, or where the claimant voluntarily accepted the risk of damage or was a trespasser.
14. Section 2(2) established a different regime where damage is caused by an animal not belonging to a dangerous species. This subsection applies, therefore, to all species of animals commonly domesticated here. It includes horses. The material part of section 2(2) provides:
15. In the present case nothing turns on requirement (a). It is accepted that this pre-condition of liability is satisfied. Similarly with requirement (c): the judge found that this requirement was satisfied in this case, and his finding has not been challenged.
16. The crucial requirement is requirement (b). Requirement (b) is concerned, in short, with the source of the animal's dangerousness. If requirement (b) is to be met, the dangerousness of the animal, as described in requirement (a), must be attributable to the animal having characteristics falling within one or other of two classes. The first limb of paragraph (b) identifies one class. The animal must have characteristics 'which are not normally found in animals of the same species'. The second limb of paragraph (b) identifies the other class of qualifying characteristics. The animal must have characteristics which are not normally found in animals of the same species 'except at particular times or in particular circumstances'.
17. Both these classes, it can be noticed at once, are described in terms of abnormality. The first class is that the particular animal has characteristics not normally found in animals of the same species. Unless the relevant characteristic of the animal which caused the damage satisfies this test of abnormality, the case does not fall within the first class. Likewise, the case does not fall within the second class unless the relevant characteristic of the animal is one which, except at particular times or in particular circumstances, is abnormal. The characteristic of the particular animal must be a characteristic which, save on particular occasions, is not a characteristic of animals of the same species.
18. Thus, the first class embraces a case where animals of the species are normally docile but the particular animal is not. In such a case requirement (b) is met. However, there are many species of animals which are normally docile but which, 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 are being threatened, may well be vicious. The second class is directed at this type of case. A dog which is prone to bite is likely to fall within the second class. A dog with a general propensity to bite has a characteristic which, save in particular circumstances, is not normally found in dogs. Such a dog has an abnormal characteristic. In such a case requirement (b) is satisfied.
19. Thus far there is no difficulty. But what of the case where the dog which attacks and bites is at the time acting as a guard dog or is a bitch with pups? Such an animal is behaving dangerously but it is doing so in a manner characteristic of its species in the circumstances. Does such a case also fall within the second class of cases? On this there has been a difference of judicial opinion. This difference of view exists also in your Lordships' House on the instant appeal.
20. Some judges have held that such a case is within the second class of cases. It falls within the literal language of the statute. The likelihood that the guard dog or the bitch with pups will bite is due to a characteristic of the particular animal which is not normally found in members of the species except in the particular circumstances of guarding territory or protecting pups. To that extent the animal's behaviour was a departure from the normal behaviour of animals of the same species.
21. I shall call this interpretation of the second limb of section 2(2)(b) 'the Cummings interpretation'. This interpretation was adopted in Cummings v Granger  QB 397. On this interpretation, Mr Mirvahedy's claim succeeds. Horses do not normally behave as did the horses of Dr and Mrs Henley during the night of 28 August 1996. They do so only in particular circumstances, namely, when seriously frightened.
22. Other judges have said that this type of case is outside the second class of cases identified in paragraph (b). The second limb of section 2(2)(b) does not treat as abnormal behaviour which is characteristic of the species in the circumstances in which it occurred. The object of the second limb is to provide that characteristics not normally found in the species do not cease to be abnormal because, in certain circumstances or at certain times, all animals of the species behave in that way. A dog prone to attack all strangers has an abnormal characteristic. It is an abnormal characteristic even though in some circumstances all dogs are liable to attack strangers.
23. I shall call this 'the Breeden interpretation'. This interpretation was favoured in the unreported decision of the Court of Appeal in Breeden v Lampard (21 March 1985). On this construction of the second limb of section 2(2)(b), Mr Mirvahedy's claim fails. The horse which escaped from the field and collided with his car was not behaving differently from the way any normal horse would have behaved in the circumstances.
24. I turn to the court decisions where this point has been considered. There are four relevant decisions, each of the Court of Appeal. Two adopted one interpretation, two favoured the other. In Cummings v Granger  QB 397 an untrained Alsatian was turned loose in a scrap-yard to deter intruders. The dog seriously injured the plaintiff who had entered the yard. The Court of Appeal, comprising Lord Denning MR and Ormrod and Bridge LJJ, held that the requirements of section 2(2) were satisfied but that the defendant was entitled to rely upon the trespasser defence provided by section 5. The dog had characteristics not normally found in Alsatian dogs except in circumstances where they are used as guard dogs. These were 'particular circumstances' within section 2(2)(b).
25. Next is the unreported case of Breeden v Lampard (21 March 1985). The court comprised Oliver and Lloyd LJJ and Sir George Waller. A riding accident occurred at a cubbing meet. The plaintiff's leg was injured when the defendant's horse kicked out. A claim was advanced under section 2. This horse, like any horse, was liable to kick out when approached too closely, or too quickly, from behind. This, it was said, brought the case within the second class of cases which satisfy requirement (b). The claim under section 2 failed, principally on the ground that even if requirement (b) was satisfied, requirement (c) was not. Lloyd LJ, however, went on to consider the ambit of requirement (b). He preferred the Breeden interpretation, as I have described it:
26. In his view the second limb of requirement (b) is 'refining what is meant by abnormality, not imposing a head of liability contrary to the main thrust of section 2(2)(b)'. Oliver LJ said he could not believe Parliament intended to impose liability for what was essentially normal behaviour in all animals of the species. The attention of the court seems not to have been drawn to the decision in Cummings v Granger.
27. The third case is the decision of the Court of Appeal, comprising Slade, Nourse and Stuart-Smith LJJ, in Curtis v Betts  1 WLR 459. A bull mastiff attacked and injured a young girl as she approached the dog in the street as it was being transferred to a Land Rover in which it was regularly transported. The court held that the keeper of the dog was liable under section 2(2). The court followed Cummings v Granger. This dog, like other bull mastiffs, tended to react fiercely when defending what it regarded as its own territory. But the mere fact that a particular animal shares its potentially dangerous characteristics with other animals of the same species will not preclude the satisfaction of requirement (b) if on the facts the likelihood of damage was attributable to characteristics normally found in animals of the species at times or in circumstances corresponding to those in which the damage actually occurred: see Slade LJ, at page 464. Breeden v Lampard seems not to have been drawn to the attention of the court.
28. Finally there is the decision in Gloster v Chief Constable of Greater Manchester Police  PIQR P114. The Court of Appeal comprised Pill and Hale LJJ. The plaintiff was a police officer. While carrying out his duties he was bitten by a police dog, an Alsatian, which had been trained to be aggressive when working. The claim failed, largely on the ground that on the particular facts the damage was not caused by the relevant characteristic of the dog. Pill LJ considered the question of interpretation now in issue. He preferred the Breeden interpretation.The courts below
29. In the County Court the judge, while expressing a preference for the dicta in Breeden v Lampard and Gloster v Chief Constable of Greater Manchester, rightly considered he was bound by the decisions in Cummings v Granger and Curtis v Betts. He held, however, that the plaintiff failed on the issue of causation. The Court of Appeal reversed the judge on the latter issue. The accident was caused by the way these horses behaved once they had been terrified: see Hale LJ at  2 WLR pages 569-571, paragraphs 9 to 17.
30. In the Court of Appeal Hale LJ held that the proper interpretation of the second limb of requirement (b) is the Cummings interpretation. The words mean what they say. There is nothing in the pre-enactment material to suggest that anything different was intended. In reaching her conclusion Hale LJ placed considerable reliance on the recommendations of the report of the Law Commission on Civil Liability for Animals (1967) (Law Com no 13), which preceded and led to the Act, and on observations of ministers in the course of the legislative passage of the Animals Bill. Dame Elizabeth Butler-Sloss P and Keene LJ agreed with Hale LJ.
The interpretation of section 2(2)
31. In common with all other judges who have had to wrestle with this question, I have found that the tortuous language of section 2(2)(b) renders its intended meaning peculiarly difficult to ascertain. I readily acknowledge that my mind has fluctuated between the two interpretations.
32. The starting point is to seek to identify the purpose of requirement (b). Stated in general terms the function of requirement (b) is not in doubt. The purpose of this paragraph is to limit the circumstances in which there will be strict liability for damage caused by an animal having the dangerous characteristics described in requirement (a). Possession of such characteristics by an animal (requirement (a)), together with the keeper's awareness that the animal has these characteristics (requirement (c)), is not enough. Meeting requirements (a) and (c) will not suffice. Something more is needed before strict liability arises.
33. That this is the purpose of requirement (b) is self-evident. Requirement (b) is a pre-condition of liability additional to requirements (a) and (c). That this is the purpose of paragraph (b) is also confirmed by the background to the legislation.
34. An important part of the background is the Law Commission report, already mentioned. The rationale of strict liability under section 2 can be found in paragraph 17 of this report. If there is to be strict liability for animals of dangerous species, then an animal not within this category should also give rise to strict liability if damage results from dangerous characteristics of the particular animal which are known to its keeper. The keeper of an animal is equally the creator of a special risk if he knowingly keeps a savage Alsatian as if he keeps a tiger.
35. From this base the Law Commission, in paragraph 18, then took two further steps. The first step was that liability should not be precluded by the fact that a particular animal belonging to a non-dangerous species shared its dangerous characteristic with other animals within the species at certain times of the year or in special conditions. This step, I interpose, is unexceptionable. The Law Commission then gave as an illustration an instance which is, in fact, a further step. The illustration goes beyond the statement of principle which it is intended to exemplify:
36. This illustration is a further step because, unlike the statement of principle, this illustration is of a case where the particular animal was doing no more than behave in a manner characteristic of the species in the circumstances. The Law Commission inferred that strict liability in these circumstances was in line with the common law as stated in Barnes v Lucille Ltd (1907) 96 LT 680. In that case Darling J said, at page 681:
37. Consistently with this thinking, the Law Commission appended to its report a draft Bill which included in clause 2(2) requirements (a) and (c), as they now are in the Act, but not requirement (b). Clause 2(2) reads:
38. Thus, under this subclause abnormality would not be a necessary prerequisite of strict liability. If an animal has dangerous characteristics in respect of a certain kind of damage, and its keeper is aware of this, he is liable if the animal causes damage of that kind. This draft subclause conforms with the Law Commission's recommendations on this point, as set out in paragraphs 18(ii) and 91 (iv) of its report, pages 12-13 and 41.
39. When first introduced into Parliament in 1969 the Animals Bill was, in the relevant respects, in the same form as the Law Commission's draft Bill. But in the course of its legislative passage there were criticisms of the wording of clause 2(2) of the Bill. The net of strict liability was being cast too widely. Even quite normal behaviour on the part of an animal might cause damage and give rise to strict liability. There was thought to be a risk that, as drafted, a keeper of an animal with a dangerous characteristic could be strictly liable for damage caused by the animal even though the damage was not attributable to the animal's dangerous characteristic. The keeper of a dog with a known propensity to bite could be strictly liable for damage caused if the dog barked and this happened to startle someone.
40. The Bill lapsed when Parliament was dissolved for the 1970 general election. When the Bill was re-introduced clause 2(2) had been reformulated and what is now requirement (b) had been added. One purpose of the amendments was to confine the scope of section 2(2) to cases where the damage suffered was of the kind falling within requirement (a). So much is clear. Where an animal has dangerous propensities, the keeper is to be liable only for such damage as is due to those propensities.
41. This purpose furnishes an explanation for the rewording of requirement (a). But it does not provide guidance on the purpose of requirement (b). As drafted, requirement (b) is apt to exclude cases where an animal has a dangerous characteristic as described in requirement (a) but that characteristic is normally found at all times in animals of that species. This is the heart of the problem. The difficulty lies in identifying the type of dangerous characteristic which will satisfy this formula, and thus exclude the keeper from strict liability under section 2(2). Section 2(2)(b) was intended to have some content. The problem is to identify that content.
42. Neither the Cummings interpretation nor the Breeden interpretation provides a compellingly clear solution to this problem. The principal difficulty with the Cummings interpretation is that it seems to leave section 2(2)(b) with very limited content. This point was well summarised by Judge O'Malley in the present case: