Judgments - Mirvahedy (FC) (Respondent) v. Henley and another (Appellants)

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    The facts

    75. The essential facts of the case can be shortly stated. The appellants, Dr and Mrs Henley, lived at Haldon Lodge, Chudleigh in Devon. They owned a horse, a 5 year old of 15.2 hands, and two ponies one 14.1 hands, the other 11.2 hands. They kept the three animals in a six acre field adjacent to their house. The field was enclosed by a post and barbed wire fence. In 1994 an electric fence, supported mainly on outriggers attached to the existing fence posts but in places supported also by plastic posts, had been added.

    76. Shortly after midnight on Thursday 29 August 1996 the three horses escaped from their field at its north western corner. The reason for their escape and the circumstances that led to their escape remain unknown but the scene, as it appeared the next morning, was described by the trial judge, Judge O'Malley, as follows:

    "the fence at the northern corner of the field was found to have been flattened outwards. The corner post and the barbed wire were flat on the ground and the electric fence had been pulled through as the horses exited. The electrotape and the electrorope had snapped. Thick vegetation was trampled in a diagonal line from the corner of the field to the lane. Within the field some plastic fence posts had been uprooted and there was an unusual and extensive area of trampling right into the apex of the corner with fresh hoofprints." (p. 3 of his judgment).

    77. The judge, having heard the evidence of experts, concluded that the horses had been frightened by something or someone in their field and, in their fright, had bolted into and through the fence. They were normally docile horses and nothing in the previous behaviour of any of them had indicated a propensity to try and escape from their field.

    78. The horses' field is bounded on its western side by a rough lane. Some 300 yards on from the field the lane runs into a minor local road which, in turn, after a mile or so runs into the A380. The A380 is a major dual carriageway road.

    79. The respondent, Mr Mirvahedy, was driving from Torquay to Exeter on the A380 when, at about 12.30 am on the Thursday night that the horses escaped, his car came into collision with the 15.2 hand horse. The horse was killed. Mr Mirvahedy's car was severely damaged and he, himself, suffered serious injuries. The 14.1 hand animal came into collision with another car on the A380. It, too, was killed. The 11.2 hand pony was caught by some third party and placed in an adjacent field from whence he was retrieved by his owners the next morning. The evidence was that when retrieved the pony was still very distressed and nervous.

    80. Mr Mirvahedy commenced an action for damages against Dr and Mrs Henley. He claimed both in negligence and under the Animals Act 1971. His negligence claim failed. Judge O'Malley concluded that "these normally docile horses were adequately contained by the fence in question" and that "the fencing at the point of the escape did not fall below the standard required of a reasonably careful and prudent owner of horses such as those with which we are concerned" (pp. 8 and 9 of the judgment). There was no appeal against these findings.

    81. Accordingly, Mr Mirvahedy's ability to recover from Dr and Mrs Henley damages for the injuries he had suffered and for the damage to his car depends on his ability to impose on the Henleys the strict liability for damage prescribed by the 1971 Act. My Lords, in considering whether or not Mr Mirvahedy is able to do so, it is important to bear in mind first that the Henleys have been exonerated from negligence and, second, that the horse that caused the damage was a normal docile animal with no mischievous propensity, or, at least, none of any relevance to the accident with which this case is concerned.

The Animals Act 1971

    82. It is not in dispute that the purpose of the Act was to amend the common law relating to civil liability for damage done by animals. The Act addressed (inter alia) three rules of the common law; first, the rule imposing strict liability on the keeper of an animal ferae naturae, ie. wild, for damage caused by the animal; second, the rule imposing strict liability on the keeper of an animal mansuetae naturae, ie. tame, for damage caused by the animal attributable to a vicious, mischievous or fierce propensity which the keeper knew the animal possessed (the so-called scienter rule); and, third, the rule barring an action in negligence against the owner of livestock which stray on to the highway and there cause an accident. The third rule was addressed and reformed by the Act, thus enabling Mr Mirvahedy's negligence claim to proceed to trial, but is of no further relevance to the present case.

    83. Section 1 of the Act (inter alia) replaced the first and second above-mentioned common law rules by section 2 of the Act. Section 2 has the headline "Liability for damage done by dangerous animals". I draw attention to the adjective "dangerous". The section 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 or were at any time known to a person who had charge of the animals 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."

    84. Section 5(1), (2) and (3) of the Act provides certain exceptions from liability under section 2:

    "(1)  A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.

(2)

    A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof.

(3)

    A person is not liable under section 2 of this Act for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either—

    (a) that the animal was not kept there for the protection of persons or property; or

    (b) (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable."

    85. None of these exceptions applies in the present case but their contents may assist in understanding the extent and nature of the strict liability intended to be imposed under section 2.

    86. The expression "dangerous species" is defined by section 6(2).

    "(2)  A dangerous species is a species

    (a) which is not commonly domesticated in the British Islands; and

    (b) whose fully grown animals 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."

Under section 6(3), a person is a keeper of an animal if he is the owner of it. And, in section 11, "species" is defined as including "sub-species and variety".

    87. The verb "domesticate" has a number of possible meanings. One of these, according to the Shorter Oxford English Dictionary, 3rd Ed., and that which I think best accords with the context of section 6, is "to tame or bring under control". So species of animals which are commonly tamed and brought under control in this country cannot belong to a "dangerous species". Animals which would, under the old law, have been mansuetae naturae in this country are excluded. But an animal not commonly domesticated (in this country), for example, an animal ferae naturae under the old law, does not necessarily belong to a "dangerous species". The animal must belong to a species which satisfies paragraph (b) of section 6(2). Thus, for example, a deer, kept in captivity, would not, in my opinion, satisfy the section 6(2)(b) requirement and would not belong to a "dangerous species" for section 2 purposes.

    88. The language of section 2(2) has been the subject of judicial excoriation in a number of cases. These have been referred to by Hale LJ in paragraph 18 of the judgment under appeal in the present case and it is not necessary to repeat them. It is not in dispute that the language of paragraph (b) of section 2(2) is ambiguous. The ambiguity results from uncertainty about the intended function of the concluding words of paragraph (b): "or are not normally so found except at particular times or in particular circumstances".

    89. The words may be read as providing two alternative ways in which the requirements of the paragraph can be satisfied. So read, the paragraph requires the likelihood of the damage or of its being severe to be due either (i) to characteristics of the animal which are not normally found in animals of the same species, or, alternatively (ii) to characteristics of the animal which are normally found in animals of the same species at particular times or in particular circumstances.

    90. There are two features of this construction that I think need to be highlighted. First, the alternative requirement, as expressed in (ii) (the second limb requirement), involves cancelling out the double negative to be found in the statutory language. "…. not normally so found except at particular times …." etc. becomes "normally so found at particular times …." etc. The statutory injunction is to look for characteristics not normally found. There is no expressed injunction to look for characteristics which are normally found. But the second limb requirement imposes that injunction.

    91. Second, if the second limb requirement is applied to an actual case in which an animal has caused damage, this construction requires an inquiry as to whether at the particular time or in the particular circumstances that the animal caused the damage it would have been normal for any animal of the same species to cause the same or similar damage. In other words the statutory reference to "at particular times or in particular circumstances" is treated as a reference to the particular time at which or the particular circumstances in which the actual animal caused the damage in question.

    92. On the other hand, paragraph (b) may be read as imposing a single, composite requirement, namely that 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 except at particular times or in particular circumstances. On this reading the function of the concluding words of paragraph (b), "or are not normally so found except at particular times or in particular circumstances", is not to impose a second test but to exclude a defence based on the undoubtedly true proposition that all dogs bite sometimes, all horses kick sometimes, all bulls charge sometimes, etc. On this reading the reference to "at particular times or in particular circumstances" is a reference to times or circumstances which necessarily must be different from those in which the animal which has caused the damage has done so. If, in the circumstances in which the animal had caused the damage, it would not have been normal for an animal of its species to do so, there will be strict liability (subject to the paragraphs (a) and (c) requirements) even though at other times and in other circumstances it would be normal for an animal of its species to cause similar damage.

    93. The issue of construction of paragraph (b) depends, in my opinion, on identifying the function intended by Parliament to be served by the concluding words of the paragraph.

    94. The paragraph (b) issue is not the only issue of construction arising under section 2(2). Paragraph (a), too, raises issues of construction prompted by the facts of this case. It is convenient to refer to these before returning to the paragraph (b) issue.

Section 2(2)(a)

    95. Section 2(2)(a) requires the damage either to be "of a kind which the animal, unless restrained, was likely to cause", or to be "of a kind … which, if caused by the animal, was likely to be severe." This language is virtually identical to that in section 6(2)(b). The similarity is plainly not coincidental. A wild animal, kept in captivity, does not belong to a "dangerous species" and cannot attract the strict liability imposed by section 2(1) unless it is likely, if free of restraint, to cause severe damage or unless any damage it causes is likely to be severe— unless, in short, it is a dangerous animal. The word "likely" in the content of section 6(2)(b) should, in my opinion, be given its natural meaning of "to be reasonably expected" (see The Concise Oxford Dictionary, 9th Ed., p. 789). It would not, in my opinion, be enough that the animal, unless restrained, could or might cause severe damage. Any animal could do that. You could trip over an escaped dormouse and break your neck falling downstairs. Nor would it be enough that damage, if caused by the animal, could or might be severe. The statutory language requires any damage caused by the animal to be likely to be severe. A mere possibility would not suffice. If a reasonable expectation, whether that the animal would, if free of restraint, cause severe damage or that any damage caused by the animal would be severe, were absent, the requirements of paragraph (b) of section 6(2) would not be satisfied. The animal would not belong to a "dangerous species". In short, it would not be a dangerous animal. So strict liability under section 2(1) would not be attracted.

    96. The word 'likely' should, in my opinion, be accorded the same meaning in section 2(2)(a) as it has in section 6(2)(b). If a commonly domesticated animal causes damage, the first two questions, if strict liability is to be imposed, are whether the damage is of a kind that the animal, unless restrained, was likely to cause or whether the damage is of a kind which, if caused by the animal, was likely to be severe. The answer to these questions cannot be answered by simply referring to the seriousness of the damage actually caused in the case in question. To do so would be to ignore the inclusion in the statutory language of the word "likely". If a large domesticated animal, say a horse or a bullock, finds itself loose and unrestrained in a public place it may cause personal injury or injury to property. But is it likely to do so? If it does cause personal injury or injury to property is injury of that kind likely to be severe? Neither of these questions can be answered simply by saying that the animal has in fact caused severe personal injury to the complainant or has in fact caused severe damage to his property. If that were the right approach paragraph (a) could simply have read "or which, if caused by the animal, was severe".

    97. In Smith v Ainger, an unreported case in the Court of Appeal in which judgment was given on 16 May 1990, a large delinquent dog attacked the plaintiff's dog and, in the process, knocked over the plaintiff causing him to break a leg. The only judgment in the case was given by Neill LJ with whom the other two members of the court expressed agreement. Neill LJ directed himself first to the meaning to be given to the word "likely" in section 2(2)(a). He rejected "probable" or "more probable than not" as correct and preferred "such as might happen" or "such as might well happen". I would respectfully agree with the Lord Justice's rejection of "probable" and "more probable than not" but am unable to agree that "such as might happen", a phrase consistent with no more than a possibility, can be right. A mere possibility is not, in my opinion, enough. I have suggested "reasonably to be expected" as conveying the requisite meaning of "likely" in paragraph (a). But it may be that there is no material difference between "reasonably to be expected" and Neill LJ's "such as might well happen".

    98. In my opinion, there has been insufficient attention paid in the present case to the requirements of paragraph (a). It seems to have been assumed that because Mr Mirvahedy suffered serious personal injuries caused by the escaped horse and that considerable damage was caused to his car, the requirements of paragraph (a) were shown to be satisfied. My own impression, however, is that a horse loose on the highway does not usually result in damage to third parties, that if damage to third parties does result the damage is not usually severe, no more, perhaps, than a dent to a car, and that the cases in which serious injury or damage results are fortunately few and far between.

99.

    Jaundrill v Gillett, also unreported, heard by the Court of Appeal on 16 January 1996, was, like the present case, a case in which horses had found their way from their field to a highway. In Jaundrill the reason for this was that some malicious person, having opened the gate, had driven the horses out of their field. As in the present case, there had been no negligence on the part of the horses' keeper. The plaintiff's car collided with two of the horses. The plaintiff suffered some personal injury and his car was damaged. He sought compensation pursuant to the strict liability imposed by section 2(2) of the 1971 Act. The defendant conceded that, having regard to the weight of each horse, damage caused by the animal was likely to be severe and that paragraph (a) was satisfied (see Russell LJ's judgment at p. 3 of the transcript). In the present case, Judge O'Malley said that

    "… even if the likelihood of the horses causing personal injury, unless restrained, was remote, there was a likelihood that such injury, if caused, would be severe. As was stated by Russell LJ in Jaundrill v Gillett, which also concerned escaping horses, this criterion gave rise to no difficulty having regard to the weight of the animal."

    100. In the Court of Appeal there appears to have been no challenge to Judge O'Malley's conclusion that the "likelihood" requirement of paragraph (a) was satisfied. And, indeed, no challenge on that point has been raised before your Lordships. In deciding this appeal, therefore, your Lordships have no alternative but to proceed on the footing that the judge's conclusion on this point was correct. But I would wish to express my reservations about it.

    101. The meaning to be attributed to the adverb "likely" is not the only point of construction arising under paragraph (a). It is not, in my opinion, entirely clear what is meant in paragraph (a) by "damage …. of a kind ….". In a case like the present, where personal injury has been caused by a collision with a bolting horse, does it mean personal injury of a kind likely to be caused by collision with a bolting horse? Or does it merely mean personal injury of a kind likely to be caused by a horse unless restrained? In the former case the damage is obviously likely to be severe; in the latter case the likelihood of damage or of damage being severe is not apparent and might at least warrant some evidence. This point, too, has not been addressed in the present case and cannot, therefore, be taken any further on this appeal.

Section 2(2)(b)

    102. Your Lordships have been given a Pepper v Hart invitation and taken to passages in Hansard recording comments about the Bill made in 1969 and 1970 during its progress through Parliament. My Lords, the passages in question are, in my opinion, inconclusive and do not provide any clear answer to the question as to the intended function of the concluding words of paragraph (b). That being so, the Hansard passages should be set aside and the statutory words in question given a function consistent with the language used, with the general scheme of the Act and with the reasonable presumption that Parliament does not intend absurd results.

    103. The general scheme of the Act was to draw a distinction, so far as the imposition of strict liability is concerned, between dangerous animals and other animals: see, for instance, the definition of "dangerous species" in section 6. An animal may be dangerous either because it belongs to a dangerous species or, if it does not belong to a dangerous species, because it has particular dangerous propensities of its own. In relation to an animal which belongs to a dangerous species, the Act imposes strict liability for damage it causes so as, in effect, to require the keeper, subject to the section 5 exceptions, to be the insurer that the animal will not cause damage to third parties. In relation to an animal which does not belong to a dangerous species, the strict liability imposed by the Act is severely limited. The requirements of paragraphs (a), (b) and (c) of section 2(2) must each, cumulatively, be satisfied before the keeper will come under strict liability for damage caused by the animal. It is a reasonable inference that the Parliamentary intention in relation to these animals was that the keeper's primary liability for damage would be a liability in negligence. Strict liability would lie only in special circumstances.

    104. It would have been very easy for the Act to have imposed strict liability on the keeper of an animal which did not belong to a dangerous species for any damage caused by any dangerous propensity of the animal, with the paragraph (c) requirement of knowledge constituting the only limit on that strict liability. The Act did not do so. The opening words of paragraph (b) impose strict liability only in respect of damage attributable to a particular dangerous propensity of the animal, abnormal for the species to which the animal belongs.

    105. It is, however, plainly possible for an animal not belonging to a dangerous species to possess, in common with all other animals of its species, dangerous propensities at particular times or in particular circumstances. These propensities need not abnormal. An example often given is that of a bitch with pups. It is not a normal characteristic of a dog to bite a stranger who approaches it. But for a bitch to bite a stranger who approached and tried to handle her pups would be normal behaviour. The example does not perhaps matter for it is clear enough that there are particular circumstances in which a normal, docile, domesticated animal is likely to display dangerous characteristics. The issue is whether Parliament, in enacting paragraph (b) intended the keeper to attract strict liability for damage done by the animal in those circumstances.

    106. The dual test construction of section 2(2)(b), described in paragraph 16 above, was accepted by both Judge O'Malley and the Court of Appeal in the present case. The construction is supported by the Court of Appeal decisions in Cummings v Granger [1977] QB 397 and Curtis v Betts [1990] 1 WLR 459.

107.

    Cummings v Granger concerned a young, untrained Alsatian dog. The dog was turned loose at night in a breaker's yard to deter intruders. The plaintiff entered the yard and was bitten by the dog. The trial judge held that paragraphs (a), (b) and (c) of section 2(2) were all satisfied and found in favour of the plaintiff. But the Court of Appeal held that the owner of the dog had a good defence under section 5(3) and allowed the appeal. As to section 2(2)(b), all three members of the Court appear to have accepted the dual test construction of paragraph (b) (see Lord Denning MR at 404G, Ormrod LJ at 407B and Bridge LJ at 409D/E). But none found the meaning of the paragraph to be clear: Lord Denning said that it would "give rise to several difficulties in future" and Ormrod LJ described its language as "remarkably opaque". These were ex tempore judgments and the alternative, single test, construction, restricting strict liability to liability for damage caused by the animal displaying characteristics not normally found in animals of its species, was not put to the Court.

    108. In my opinion, the judge and the Court of Appeal in Cummings v Granger were right, whichever be the right construction of paragraph (b), to find that the requirements of the paragraph were satisfied. It is not a normal characteristic of an Alsatian, or of any species of domestic dog that I have ever heard of, to make an unprovoked attack of the sort made by the Cummings v Granger Alsatian. There was much talk in the case of the dog being young and untrained and kept as a guard dog and of Alsatians having territorial instincts which make them likely to attack strangers who venture into their territory. The norm, however, for the purposes of application of paragraph (b), construed according to the single test construction, would not be a young, untrained dog. It would be an adult dog which had received the degree of training usual for the species. A puppy is not a "sub-species or variety" of dog (see s. 11). Nor is a guard dog a "sub-species or variety". The decision in Cummings v Granger did not turn on which of the two alternative approaches to construction of paragraph (b) was correct and the Court of Appeal did not address that issue.

109.

    Curtis v Betts was another dog case. A bull mastiff, in course of being taken from his owner's house to his owner's car, was approached by a 10 year old child and attacked and injured the child. Liability under section 2(2) of the Act was found by the trial judge to be established. The defendant's appeal was dismissed. The Court of Appeal adopted the dual test construction of paragraph (b) but the result would, in my opinion, have been the same whichever construction had been adopted. Slade LJ analysed paragraph (b) in these terms:

    "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." (p. 464).

    110. Slade LJ's explanation of section 2(2)(b) provides strong support for the Court of Appeal's approach to paragraph (b) in the present case. But, as with Cumming v Granger, I doubt whether the alternative, single test approach to paragraph (b), would have led to any different result. It is not quite clear from the report of the case what the evidence before the court was as to the characteristics of bull mastiffs, but the proposition that it is a normal characteristic of bull mastiffs to make unprovoked attacks, such as was made on the child in Curtis v Betts, I find an astonishing one. The case did not, in my opinion, need to come within Slade LJ's explanation in order to satisfy paragraph (b).

 
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