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

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    111. Stuart-Smith LJ, too, addressed himself to paragraph (b) on the footing that it contained two limbs. The first limb, he said, dealt with "permanent characteristics", the second with "temporary characteristics". I respectfully doubt whether this is a helpful distinction. What are "permanent" characteristics? There are no behavioural characteristics of animals that are on display all the time. Every behavioural characteristic is displayed when appropriate circumstances arise. All behavioural characteristics possessed by any animal are temporary, arising when the circumstances are apt and dormant when they are not. But I have no doubt whatever but that in Curtis v Betts the Court of Appeal (and the trial judge) reached the right decision.

    112. The explanation of the concluding words of paragraph (b) given by Slade LJ in Curtis v Betts, and accepted and applied by the Court of Appeal in the present case, seems to me to be inconsistent with the paragraph taken as a whole. I would respectfully agree that the broad purpose of the paragraph was to ensure that the keeper of the animal would escape strict liability if, on the particular facts, the likelihood of damage was attributable to potentially dangerous characteristics of the animal which would normally be found in animals of the same species (see Slade LJ, at p. 464). But the "one exception" to this, identified by Slade LJ and based on the concluding words of the paragraph, seems to me wholly to undermine and frustrate that broad purpose. If an animal causes damage it will necessarily do so at a particular time and in particular circumstances. Damage cannot be caused in the abstract. There must necessarily be a time and a context. It is not possible, in my opinion, to construct a case in which an animal acting normally has caused damage, a fortiori severe damage, otherwise than at a particular time or in particular circumstances. Slade LJ's exception to the "broad purpose" that he rightly, in my opinion, attributed to paragraph (b) would prevent the keeper of the animal that had caused the damage from ever escaping strict liability for damage attributable to normal characteristics of the species — always assuming that the requirements of paragraphs (a) and (c) were satisfied. I do not think this can correspond with Parliament's intention.

    113. The problem about Slade LJ's exception to which I have just referred can, arguably, be avoided by giving some restricted meaning to "at particular times or in particular circumstances". If "particular" is given a meaning of "unusual" or "special", or some comparable meaning, there would not necessarily be strict liability for damage caused by an animal when acting normally. Strict liability would only be attracted if the animal was acting normally in "unusual" or "special" circumstances, or at an "unusual" or "special" time. This suggested solution to the problem would, to my mind, simply replace it with a worse one. What possible criteria could be applied to determine whether the time or the circumstances were "particular". Would the criteria be statistical? Or would the criteria be subjective? And if so, from whose point of view? The animal's? In my opinion, since every behavioural characteristic is only displayed in circumstances that prompt its display, the only sensible reading of "particular times" and "particular circumstances" is times or circumstances that prompt the display of the characteristic in question. But this reading produces the problem to which I referred in the last foregoing paragraph.

    114. Consider also some of the strange results to which this construction of the concluding words of paragraph (b) would give rise. Strict liability would be imposed for any damage caused by an animal when responding to any external stimulus in a manner entirely normal for its species. Take the case of a normal, docile horse in a field through which a public footpath runs. A mischievous individual using the footpath shoots a projectile at the horse with a catapult and hits the horse. The horse bolts and knocks over some other entirely innocent user of the footpath. The owner of the horse is likely to be well aware that any horse if shot by a projectile from a catapult would be likely to bolt. On the dual test construction of paragraph (b) — as set out in paragraph 16 above — the owner would have strict liability for the damage to the injured third party.

    115. Or, as a further example, take the case of mounted police endeavouring to control a demonstration. Police horses are very well trained and in general do not kick at those in their vicinity. They are accustomed to crowds and loud noises. But suppose an individual in the crowd were to jab a horse's rump with some sharp instrument. I doubt whether there is any horse so well trained that it would not respond to provocation of that sort by kicking out. If the kick were to connect with the miscreant, he would be barred by section 5(1) from claiming under the Act. But if the kick were to connect instead with some other member of the crowd, would the injured person have a strict liability claim against the police? The horse, in kicking out, would have displayed a characteristic normally found in horses into whose rumps a sharp instrument has been jabbed. A contention that the keeper of the horse was not aware of this characteristic would be unreal. On the dual test construction of paragraph (b) there would be strict liability.

    116. Consider also how the dual test construction of paragraph (b) would work in the case of animals, such as deer, which are not commonly domesticated in this country but which are not likely to cause severe damage while at large. Deer can hardly be regarded as belonging to a "dangerous species" as defined in section 6(2). But although deer are not commonly domesticated in this country, there are deer farms and deer parks where deer are kept in captivity either to provide pleasure to the beholder or, more prosaically, to provide a source of venison. From time to time deer are to be seen on our highways. From time to time deer on highways come into collision with motor vehicles. It is easy to imagine a deer on a highway at night, frightened by the noise and headlight glare of the vehicles, seeking to escape but in its panic fleeing in the wrong direction and colliding with a vehicle thereby causing damage — behaving, that is to say, not unlike the horses in the present case and with a similar result.

    117. If the deer were a wild deer, no one would be liable for the damage. But if the deer had escaped from a deer farm or deer park, its owner would, if the dual test approach to paragraph (b) is right, be liable notwithstanding that the animal had behaved in a manner entirely normal for a deer in the circumstances in which it found itself. This would produce the paradoxical situation in which on the one hand deer are removed by section 6(2)(b) from being categorised as a "dangerous species" but on the other hand an individual deer may impose strict liability on its keeper under section 2(2)(b) for damage caused by behaviour entirely normal for the species.

    118. My Lords, I cannot believe that Parliament intended paragraph (b) to have the effect described. To impose strict liability on the keeper of an ordinary domesticated animal, or of a non-dangerous wild animal held in captivity, for damage done by the animal when responding normally, as any member of its species would respond, to some external stimulus seems to me inconsistent with the apparent intention of the Act to draw a distinction between dangerous and non-dangerous animals and inconsistent, in particular, with the apparent purpose of paragraph (b) to limit strict liability for non-dangerous animals to damage attributable to abnormal characteristics. If there was intended to be strict liability for damage caused by an animal behaving in a manner normal for its species, one would have expected the Act to categorise the species as a dangerous species. The fact that an animal belongs to a species that falls outside the statutory definition of a dangerous species is, in my opinion, an indication that behaviour by the animal in a manner normal for the species was not intended by Parliament to attract strict liability. If there was intended to be strict liability for damage caused by normal behaviour of non-dangerous animals one would have expected that simple proposition to be simply stated rather than left to be produced by the literary device of turning the double negative in the concluding words of paragraph (b) into a positive.

    119. A further paradox that seems to me worth noting is that, if the dual-test construction of paragraph (b) is right, a professional keeper of animals will have a more extensive strict liability than an ignorant amateur. Take the present case. Dr and Mrs Henley were experienced horse owners. They were well aware of the natural tendency of horses to flee when startled or frightened and, in the case of several horses together, to do so as a herd. They are herd animals. The amateur, buying his first horse, might plead ignorance of these characteristics and hope to prevent the requirements of paragraph (c) from being satisfied. The Henleys could not, and did not, do so.

    120. I find it quite impossible to understand what legislative policy could be served by allowing a keeper's ignorance of the normal characteristics of the animal in his charge to permit him to escape the strict liability imposed on a responsible keeper who had made himself aware of those characteristics. The requirements of paragraph (c) only make sense, in my opinion, if the characteristics that have caused the damage in question are not normal to the species but are peculiar to the individual animal.

    121. The alternative single test approach to paragraph (b) as set out in paragraph 19 above is supported by dicta in two unreported decisions of the Court of Appeal, Breeden v Lampard, in which judgment was given on 21 March 1985, and Gloster v Chief Constable of Greater Manchester Police, in which judgment was given on 24 March 2000.

122.

    Breeden v Lampard was the case where a horse, at a meet of the Atherstone Hunt, kicked out breaking the leg of the rider of another horse. It appears that the horses and riders were progressing down a road. Per Sir George Waller, at p 2 of the transcript:

    "when the appellant was close behind the respondent the respondent's horse, Raffles, shuffled to the left and then kicked out, causing the appellant to suffer the broken leg."

Raffles was wearing a red ribbon on his tail. Such an adornment is a traditional warning to others that the horse is prone to kick and to keep their distance. The trial judge, Macpherson J, found that there had been no negligence on the part of Raffles' rider and that strict liability under section 2(2) had not been established. The Court of Appeal dismissed the appeal.

    123. On the section 2(2)(b) point, Sir George Waller took the view that Raffles had no characteristics not normally found in animals of the same species. The question whether Raffles had characteristics arising at a particular time or in particular circumstances did not in his opinion arise (see p 5A-B of the transcript) for the trial judge had found that his rider was not aware of any such characteristics. Sir George Waller did not, therefore, need to deal with the question whether the concluding words of paragraph (b) imposed a separate and alternative test of liability, and he did not do so.

    124. Lloyd LJ, however, dealt explicitly with the point. He said this:

    "In the old law there was much debate as to whether the owner of an animal, not being an animal ferae naturae, was liable for injury caused by a vice natural to the species of that animal ….

    But all that now has been swept away by s. 2(2)(b) of the new Act. The essential condition of 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 if 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) …. 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 eg. 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." (pp. 9 and 10 of the transcript).

In the final sentence of this citation, Lloyd LJ is attributing to the concluding words the same function as that suggested in paragraph 19 above.

    125. Oliver LJ expressed agreement with both his colleagues. He paraphrased paragraph (b) in terms virtually identical to those in paragraph 19 above (see p 11B of the transcript). He commented (p. 12 of the transcript):

    "I cannot believe that Parliament intended to impose liability for what is essentially normal behaviour in all animals of that species."

    This comment is consistent with the "broad purpose" for paragraph (b) formulated by Slade LJ in Curtis v Betts but omitting the "one exception".

    126. In Gloster v Chief Constable of Greater Manchester Police, Pill LJ expressed agreement with Lloyd LJ in Breeden that section 2(2) was "not concerned with animals behaving in a perfectly normal way for animals of the species or sub-species" (p. 5 of the transcript). Gloster was a case in which a trained police dog, a German Shepherd, had bitten a well-meaning member of the public who was attempting to help the police, instead of the miscreant at whom he had been directed by his police-handler. The trial judge and the Court of Appeal declined to find that strict liability under section 2(2) was established. Pill LJ, adopting the single test construction of paragraph (b), held that the case did not fall within the paragraph because although a propensity to bite was not a characteristic normally found in German Shepherd dogs, it was a characteristic of the sub-species to respond to specific training and instruction. He said that the dog "acted as he was trained to act and in a way characteristic of the sub-species" (p. 6 of the transcript). In my respectful opinion, this reasoning cannot be right. A trained police dog is not a sub-species or variety of dog within the meaning of the section 11 definition. If biting at its handler's command is a characteristic of German Shepherds only after they have been trained to do so, it is not a normal characteristic of the sub-species.

    127. Hale LJ, the other member of the two person court, expressed doubts about Pill LJ's approach to paragraph (b). But she held that paragraph (a) was not satisfied, so concurred in the result.

    128. In my opinion, Gloster was a case in which, on the single test approach, paragraph (b) should have been held to be satisfied. The damage complained of was the bite. The likelihood of being chased and bitten was due to a characteristic of the police dog not normally found in German Shepherd dogs. There was, in my opinion, no more to be said about paragraph (b) than that.

    129. I have already referred to some of the results of applying a dual-test construction of paragraph (b) that imposes strict liability for damage caused by normal behaviour of animals that do not belong to a dangerous species. The alternative single test construction may also be regarded as producing in certain circumstances odd results. One of these oddities results from the definition of dangerous species. An animal cannot belong to a "dangerous species" if it belongs to a species commonly domesticated in the United Kingdom. But some such animals are, relatively speaking, animals that might reasonably be regarded as often dangerous. Bulls are one example. Stallions are another. I recall reading a comment by a horse expert that an angry stallion can be one of the most dangerous animals to have to face. If the single test construction of section 2(2)(b), suggested in paragraph 19, is right, there can never be strict liability for normal behaviour by domesticated animals of this character. If damage is caused by a charging bull, charging in circumstances in which it would be normal behaviour for a bull to charge, there would be no strict liability for the damage caused by the bull. The same would be true of damage caused by a stallion attacking in circumstances in which it would be normal for a stallion to attack. The same would be true of the bitch who bites a stranger attempting to handle her pups. Can this have been Parliament's intention?

    130. A clear answer to the question as to the proper construction of paragraph (b) cannot, in my opinion, be obtained from the actual language of the provision, nor from a perusal of Hansard, nor from examining the contents of the Law Commission Report of 1967 on which the 1971 Act was in part based. The answer depends upon identifying what Parliament appears to have been trying to achieve. It seems to me that Parliament was trying to draw a distinction between animals that in normal circumstances behaving normally are dangerous and those that in normal circumstances behaving normally are not. As to the former, they belong to a dangerous species and there was to be strict liability for damage; as to the latter they do not belong to a dangerous species and strict liability was to be limited to damage caused by the animal displaying abnormal characteristics that it was known by its keeper to possess. This seems to me to be a coherent policy. In respect of damage for which no strict liability was imposed, a remedy in negligence would always be available if the keeper of the animal had failed to exercise reasonable care to see that the animal did not cause damage. The keeper's knowledge of the circumstances in which and times at which the animal might be likely to become dangerous and cause damage would, of course, be highly relevant in determining the standard of care required to be observed by the keeper. A standard of care can, in appropriate circumstances, be placed so high as to require the person subject to it to become virtually an insurer against damage.

    131. Essentially, I am in respectful agreement with the approach of Lloyd LJ in Breeden v Lampard. I agree with his explanation of the function to be served by the concluding words of paragraph (b). I share the disbelief expressed by Oliver LJ at p. 12 of the transcript. A construction of paragraph (b) under which abnormal behaviour is a requisite for strict liability seems to me consistent with the statutory language, to promote the apparent scheme of the Act by confining strict liability under section 2(2) to cases where damage has been caused by animals displaying characteristics which are not normal for their species and to avoid the anomalies produced by the dual test construction. The construction, as Lloyd LJ noted, attributes the inclusion in paragraph (b) of the concluding words "or are not normally so found except at particular times or in particular circumstances" to the need to forestall attempts by defendants to escape the opening words, "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", by contending that all dogs will sometimes bite, all horses will sometimes kick, all bulls will sometimes charge etc. If, as I think it was, the intention of paragraph (b) was to require the likelihood of the damage, or its severity, to be attributable to particular, individual characteristics of the delinquent animal not shared by others of its species, some additional words were necessary to prevent escape attempts of the sort described. The language might have been better chosen and have avoided the ambiguity that has caused the problem. But the suggested construction is, in my opinion, consistent with the statutory language actually used by Parliament and is one that I think your Lordships can and should adopt.

    132. In the instant case, the three horses bolted and burst through their fence because something or other had terrified them. Bolting when terrified is a characteristic of all horses. The findings of fact at trial were that the behaviour of these horses was not due to characteristics not normally found in horses. The concluding words of paragraph (b) do not impose a second alternative test but merely amplify abnormality if abnormality has been found. I would, accordingly, allow the appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    133. Many difficulties have arisen in interpreting and applying section 2(2) of the Animals Act 1971 ("the Act"). That subsection deals with the circumstances in which strict liability is imposed (subject to defences under section 5) on the keeper of an animal which does not belong to a dangerous species (as defined in sections 6(2) and 11) for damage caused by the animal. Hale LJ has (in paragraph 18 of her judgment) collected an anthology of critical observations on section 2(2) made by some distinguished judges, and it is not necessary to repeat them. But it may be worth reflecting on why section 2(2) has given rise to so many difficulties.

    134. It is not necessary to go far into the old common law rules which imposed strict liability for wild animals (animals ferae naturae) or for tame or domesticated animals with a known vicious propensity (the scienter basis of liability). The old rules were both questionable in their foundations and uncertain in their limits. That appears from two cases decided not very long before the Act, Behrens v Bertram Mills Circus Limited [1957] 2 QB 1 (the case of the trained Burmese elephant which was more docile than many horses until harassed by a small dog) and Fitzgerald v Cooke Bourne (Farms) Ltd [1964] 1 QB 249 (the case of an unbroken filly in a field crossed by a public footpath). The Goddard Committee (which reported in 1953) proposed to abolish strict liability for damage caused by animals, but the Law Commission in its Report on Liability for Animals (published in 1967 as one of the Law Commission's earliest reports) took a different view. The Law Commission recommended that the principle of strict liability should not be abolished, but should be modified and simplified. It is clear that in enacting the Act, Parliament was (in the most general terms) following the Law Commission's recommendations to retain the principle in a modified form. It is unfortunately far from clear that Parliament achieved the objective of simplification.

    135. Part of the problem is that section 2 of the Act is expressed in very general terms. It is notable that the Law Commission inquired into the prevalence of particular types of damage caused by animals. Its report contains some detailed statistics about road accidents in which animals were involved. But in section 2 Parliament has not chosen to identify or make specific provision for the varying circumstances in which animals do most commonly cause damage. In practice section 2 (1) has a very narrow scope, being almost entirely limited to incidents in (or following escapes from) zoos or circuses. Section 2(2) has to cover the whole range of incidents involving animals of species classified as non-dangerous (which I will call domesticated animals, although that is not an entirely accurate term). That range includes (i) physical injury to humans by biting (especially by dogs) or kicking or knocking down (especially by horses); (ii) injuries caused to livestock (such as a dog worrying a neighbour's sheep, or a cat killing a neighbour's chickens); (iii) road traffic accidents, especially those caused by animals straying on the highway; (iv) damage caused by livestock getting out onto neighbouring land and destroying crops or gardens; and (v) injury or damage caused by the spread of animal infection or by the smell or noise of animals (a class which shades off into cases normally classified as nuisance). So section 2(2) has a lot of work to do. It is expressed in general, abstract terms and it has to be applied to a wide range of disparate incidents.

    136. Other sections of the Act do contain more specific provisions. The case of livestock trespassing on private land is covered by section 4, and there is a special provision as to guard dogs injuring trespassers (section 5(3)). But the only special provision made for animals straying on the highway is the abolition by section 8 (subject to qualifications in section 8(2)) of the old common law rule which gave immunity (see Searle v Wallbank [1947] AC 341). It has not been contended in your Lordships' House (although it was contended at first instance) that section 8 has the effect of excluding possible liability under section 2(2).

    137. Section 2(2) must therefore be treated as capable of applying (one way or another) to cases of horses straying onto a highway and causing an accident, as well as to cases (such as Cummings v Granger [1977] QB 397 and Curtis v Betts [1990] 1 WLR 459) where humans have been injured by being bitten by large dogs. Many of the epithets used in the cases relating to dog bites (such as fierce, ferocious and vicious) are not apposite to describe a horse sent into a state of panic by some unknown cause. But it cannot be doubted that for a riderless horse to be on the highway in such a state is a danger to other road users, even though it is (in its state of panic) acting in an entirely natural way. If the Court of Appeal was right the Act has in this respect extended the possible scope of strict liability for domesticated animals (while narrowing the class of dangerous species by the definition in section 6(2)).

    138. After these general comments I come to the particular linguistic difficulties presented by section 2(2). One is the meaning of the important term "characteristics" used in paragraphs (b) and (c) of section 2(2), but not defined in the Act. The context makes clear that the expression cannot mean something buried in an animal's psyche (as Devlin J said in Behrens at page 18, it is not practical to introduce conceptions of mens rea and malevolence in relation to animals). It must refer to character or disposition as evinced by overt behaviour—for instance, a dog which had the habit of attacking people who were carrying bags (Kite v Napp, Times Newspaper 1 June 1982). The distinction between "permanent" and "temporary" characteristics drawn by Stuart-Smith LJ in Curtis v Betts [1990] 1 WLR 459, 469, is useful but must be treated with some caution: all dangerous characteristics are likely to be more or less permanent but they may show themselves either frequently and randomly (as with the unreliable horse in Wallace v Newton [1982] 1 WLR 375), or under a stimulus peculiar to the particular animal (such as bag-carrying in Kite v Napp), or under some internal or external stimulus (such as the animal's hormones or a perceived challenge to its territory) which can be expected to produce similar behaviour in most animals of its species.

 
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