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

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    139. That is the point to which the words "at particular times or in particular circumstances" are directed, but there is force in the observation made by the trial judge, in his careful judgment, that one can always find particularity attaching to any time or to any circumstance. I consider that Mr Sharp QC (for the respondent) must be right in suggesting that predictability (of how animals of the same species react to a particular stimulus or situation) is one of the indicia of characteristic behaviour which falls within the second limb of section 2 (2)(b).

    140. That leads to the central problem on this appeal. It is agreed that section 2(2)(b) contains two limbs, linked by the word "or". The second limb contains what is akin to a double negative ("not …except …") and this (coupled with the cumbersome words at the beginning of paragraph (b), the feature which has so far attracted most of the adverse judicial comment) makes it difficult to see what paragraph (b) as a whole is getting at. The cumbersome words at the beginning appear to me to reflect the simple proposition (familiar from the law of negligence: see for instance Paris v Stepney Borough Council [1951] AC 367) that risk is a product of two factors, the likelihood of injury and the severity of the possible injury. So the sub-section could be set out in a simplified form (using the abbreviation "risk" and some other simplifications) as follows:

    "The [risk] was due to characteristics of the [horse] which are not normally found in [horses] or are not normally … found [in horses] except [on particular occasions]".

    141. If paragraph (b) is simplified in this way, it is easier to see that there are two possible interpretations of the second limb. Each is permissible (although not necessarily equally acceptable) as a matter of language. Which is to be preferred depends on the legislative context and purpose, and in particular, on what appears to be the essential purpose of the second limb as a whole. This can be illustrated by the example (based on Barnes v Lucille Limited (1907) 96 LT 680 and discussed both by the Law Commission and in later authorities) of the bitch which acts fiercely and bites in defence of her pups. Suppose that a labrador bitch (which is not nursing pups and is not subjected to any other provocation) bites a pedestrian in the park. That would on the face of things be abnormal behaviour for a labrador, and the first limb of paragraph (b) would apply. The only function of the second limb (one argument goes) is to forestall the owner's excuse, "but all labrador bitches have a propensity to bite sometimes" in a case where that excuse cannot, on the facts, make any difference.

    142. The competing explanation of the second limb is that it adds a further possible head of liability where the particular circumstances are actually present (in the example, where the bitch is nursing pups). In such a case the animal's normal behaviour in abnormal circumstances is equated with a more vicious dog's abnormal behaviour in normal circumstances. Either is to be treated as introducing the element of abnormal, dangerous behaviour which goes towards the establishment of strict liability, if the other elements (in paragraphs (a) and (c) of section 2(2)) are also present.

    143. That is the explanation which was preferred by the Court of Appeal in Cummings v Granger and Curtis v Betts. In the latter case, Slade LJ said 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".

    144. Similarly Stuart-Smith LJ said of the two limbs of section 2(2)(b), after referring to permanent and temporary characteristics, at page 469,

    "Dogs are not normally fierce or prone to attack humans; a dog which has a propensity to do this at all times and in all places and without discrimination as to persons would clearly fall within the first limb. One that is only aggressive in particular circumstances, for example, when guarding its territory or, if a bitch, when it has a litter of pups, will come within the second limb".

    145. The weight of authority favours the view taken by the Court of Appeal in Curtis v Betts (with dicta of two members of the Court of Appeal in Breeden v Lampard going the other way). But Mr Lissack QC (for the appellants) has strenuously argued that the current of authority is wrong, because (contrary to Parliament's general purpose) it treats normal animal behaviour as if it were abnormal. Echoing the Law Commission report (paragraph 15 (ii)) he submitted that your Lordships should redirect the law so that it can reflect the common experience of everyday life.

146.

    Breeden v Lampard was the case in which one mounted follower of the hunt had her leg broken when she was kicked by the horse of another member of the hunt. The field had just changed direction and several horses were in close proximity to one another. The defendant does not seem to have run the defence of voluntary acceptance of risk provided by section 5(2) of the Act. The offending horse was wearing a red patch on its tail but the trial judge found that it was not a kicker and that its rider had not been negligent. He dismissed the claim.

    147. In the Court of Appeal Sir George Waller (who gave the first judgment) regarded the case as not within either the first limb or the second limb of section 2(2)(b). In any event the defendant was not aware of any exceptional characteristics in her horse. Lloyd LJ went into the matter rather more fully, summarising the appellant's argument on the second limb as follows:-

    "the argument went like this: Any horse is liable to kick out when approached too closely, or too suddenly, from behind. That is a characteristic of all horses, or at any rate of all young horses, in those circumstances. Those circumstances are particular circumstances within the meaning of section 2(2)(b) of the Act, and therefore the defendant is under strict liability by virtue of that subsection. The short answer to that argument is that which has been given by my Lord; this defendant did not know of that particular characteristic in relation to her horse. The judge accepted her evidence without reservation; it follows that even if the provisions of section 2(2)(b) are satisfied here, the provisions of section 2(2)(c) are not".

    148. Lloyd LJ then expressed doubt as to whether the second limb could have applied anyway. After some remarks about the old law and the Law Commission's report he referred to cases (mentioned in North, the Modern Law of Animals (1972) page 50) of strict liability for injury caused "by a vice natural to the species" of a domesticated animal (see for instance Buckle v Holmes [1926] 2 KB 125, the case of a cat which killed a neighbour's pigeons and bantams). Lloyd LJ then said:

    "But all that has now been swept away by section 2(2)(b) of the new Act. 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. I cannot myself see why, if the old law has been swept away, Parliament should have retained by way of exception the effect of the decision in Barnes v Lucille Limited if indeed the effect is as Mr Nicholl contends. 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".

    He then suggested an alternative explanation for the second limb (that favoured by the appellants in your Lordships' House). Oliver LJ gave a short judgment stating that he shared Lloyd LJ's puzzlement and observing, "I cannot believe that Parliament intended to impose liability for what is essentially normal behaviour in all animals of that species".

    149. The Law Commission might have been surprised at the suggestion that the old law was being swept away (rather than retained with modifications). But before going further into the Law Commission report or the parliamentary material which your Lordships were asked to consider, I prefer to return to the text of the Act. The skilled eye of the parliamentary draftsman can hardly have failed to spot the difficulty, and yet the language of section 2 (2) does not avoid ambiguity. Section 2(2) as a whole packs several complex ideas into a single sentence, and the draftsman may have felt that there was no room for any more subordinate clauses to be included. Had he not been constrained in that way he might have expressed the first alternative meaning (favoured by the appellants) on the following lines:

    "the risk is due to characteristics of the animal which (i) are abnormal in its species or (ii) are normal in the species but only at particular times or in particular circumstances (and the danger is not caused at such a time or in such circumstances)".

    Conversely he might have expressed the second alternative (favoured by the respondent) as follows:

    "The risk is due to characteristics of the animal which (i) are abnormal in its species or (ii) are normal in the species but only at particular times or in particular circumstances (and the damage is caused at such a time or in such circumstances).

    150. On either view the first limb covers wholly abnormal behaviour. The respondent's interpretation of the second limb expressly extends the scope of possible liability to behaviour which, although generally abnormal, is normal for the species in particular circumstances which were those of the incident. The appellants' interpretation expressly excludes such semi-normal, semi-abnormal behaviour simply in order to give a fuller explanation of what the first limb means in a case where the incident occurred in circumstances which were not the sort of "particular circumstances" envisaged.

    151. The appellants' interpretation appears to me to be less likely as a matter of language. For one thing, if that were the intended meaning, it could have been more simply expressed by a parenthesis—"with the possible exception of [or apart from] abnormal behaviour in particular circumstances"—rather than by an apparently free-standing alternative. As Lord Diplock said (in his dissenting speech in Carver v Duncan [1985] AC 1082, 1117-8) Parliament does not normally use the word "or" to mean "that is to say". For another thing, the appellants' interpretation, by expressly excluding semi-normal, semi-abnormal behaviour in a case where that behaviour would not be expected, raises but does not answer the highly pertinent question of what is to be the position if the circumstances are such that the behaviour is to be expected. That would be a surprising way of framing legislation which is meant to simplify and clarify the law. These considerations make the respondent's interpretation significantly easier as a matter of language, but not to my mind so much more probable as to be determinative of the issue.

    152. The course of argument before your Lordships identified two general arguments in favour of the appellants' proposed construction of the second limb of section 2(2)(b). Both are based on the anomalous (or even absurd) results said to follow from the alternative construction:

1)

    It would be anomalous or absurd if the keeper of an animal is not strictly liable for damage caused by a domesticated animal which (in common with others of its species) evinces dangerous behavioural characteristics all the time, but is strictly liable for damage caused by a domesticated animal which (in common with others of its species) behaves in a dangerous way only in particular circumstances.

2)

    It would be anomalous or absurd, if strict liability may be imposed for behaviour which is in some sense entirely normal for an animal of the species, to make the keeper's liability depend on his or her knowledge of something which is likely to be common knowledge among those who keep animals of the species.

    153. These points call for serious consideration. They both share a common foundation in scepticism (vividly expressed by Lloyd and Oliver LJJ in Breeden v Lampard) that Parliament cannot have intended to push out the boundaries of strict liability so as to extend to normal behaviour on the part of an animal of a domesticated species. However Parliament has (by its chosen definition of dangerous species) drawn the line so that large, strong animals such as bulls, cows and horses, and potentially savage animals such as mastiffs and rottweilers, are classified as not belonging to a dangerous species. Bulls may or may not be potentially dangerous all the time (this House in its legislative capacity expressed widely differing views on the subject in the debate in 1970 on the second reading of the Animals Bill) but they are certainly dangerous in particular circumstances. On a smaller scale the same is true of domestic cats, which are instinctive and ruthless killers of birds; it would have been little comfort to the owner of the dead pigeons and bantams in Buckle v Holmes to be told that the cat was behaving in an entirely natural way. As Devlin J said in Behrens v Bertram Mills Circus Limited, the court must avoid misplaced notions of an animal's guilty mind. It must also, I think, avoid any notion (reminiscent of Jean-Jacques Rousseau) that an animal's natural behaviour must be somehow innocent.

    154. I am not persuaded that the two suggested anomalies, either separately or together, are decisive of the issue of construction. For a dog to jump up and bite in defence of its territory, or for a horse to kick out if approached from behind, may be normal behaviour for the species, but it is abnormal behaviour, at a higher level of generality, for a species which is supposedly tame and domesticated. Moreover although these traits will usually be known to any knowledgeable dog-owner or horse-owner, that may not be so (as the trial judge's finding in Breeden v Lampard illustrates) and it certainly cannot be assumed that they would be known to every member of the general public.

    155. In my view the crux of the matter is this. Both sides agree that Parliament intended to impose strict liability only for animals which are (in some sense) dangerous. Subsections (1) and (2) of section 2 mark the first subdivision which Parliament has made in identifying one (very limited) class of dangerous animals. This rather crude subdivision has contributed to the difficulties which have arisen, since it implies (but does not clearly spell out) that entirely normal behaviour of an animal of a non-dangerous species can never give rise to strict liability (this is the basis of the first anomaly relied on by the appellants). Domesticated animals are to be the subject of strict liability only if their behavioural characteristics are (in some sense) abnormal (and so dangerous). Did Parliament contemplate that the generality of animals in a domesticated species might in some circumstances show dangerous behavioural characteristics so as to be liable to be treated, in those circumstances, as dangerous? Or is there a presumption underlying the Act (and providing guidance as to the correct construction of section 2) that an animal of a domesticated species behaving in a way that is (in particular circumstances) normal and natural for its species cannot be treated as dangerous?

    156. In my view the scheme and language of the Act do not yield any such underlying presumption. I consider that the respondent's proposed construction of the second limb of section 2(2)(b) is more natural as a matter of language, and that it is not inconsistent with Parliament's general intention to impose strict liability only for animals known to present special dangers. The suggested anomalies, although far from insignificant, could be matched by comparable anomalies arising from the alternative construction. Moreover the respondent's proposed construction is in my view closer to what Mr Lissack QC (echoing the Law Commission) referred to as the common experience of everyday life.

    157. It is common knowledge (and was known to the appellants in this case) that horses, if exposed to a very frightening stimulus, will panic and stampede, knocking down obstacles in their path (in this case an electric fence, a post and barbed wire fence behind that, and then high undergrowth) and may continue their flight for a considerable distance. Horses loose in that state, either by day or by night, are an obvious danger on a road carrying fast-moving traffic. The appellants knew these facts; they could decide whether to run the unavoidable risks involved in keeping horses; they could decide whether or not to insure against those risks. Although I feel sympathy for the appellants, who were held not to have been negligent in the fencing of the field, I see nothing unjust or unreasonable in the appellants having to bear the loss resulting from their horses' escape rather than the respondent (who suffered very serious and painful injuries in the accident, although he was wearing a seatbelt and slowed down as soon as he saw the first horse in his headlights).

    158. The Law Commission report provides useful background material to the Act but is to my mind of little or no assistance on the crucial issue of construction. Two paragraphs of the report (paragraph 18(i) and the summary at paragraph 91(iv)) appear to favour the respondent but the draft Bill prepared by the Law Commission did not cover the point one way or the other (it referred to "characteristics" without indicating whether they had to be normal or abnormal).

    159. Your Lordships have been asked to consider (and have considered on a provisional basis) a quantity of parliamentary material. I share what I understand to be your Lordships' reluctance to extend the clear guidelines set out in the speech of Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593, 640. The only ministerial statement which seems to me to come close to those guidelines is the statement made by Lord Hailsham LC in the House of Lords on 12 November 1970, on the question whether clause 2 should stand as part of the Bill. At the end of a discussion initiated by Lord Kilbracken the Lord Chancellor said

    "I have tried to give what guidance I can to the Committee on the subject of bulls. They are, I would apprehend, normally domesticated in the British Isles. That is the first proposition. Any damage which the ordinary bull is liable for is damage which would be of the kind normally to be expected of the bovine species. If, however, a bull is known to have vicious characteristics, or if it be that there are particular times and conditions in which abnormally vicious characteristics appear in all bulls, the keeper of the bull would be liable".

    160. The first and second conditions stated by Lord Browne-Wilkinson (the obscurity of the legislation, and the statement being that of a minister promoting the Bill) are satisfied. I feel some doubt as to the third (that the statement relied on is clear) since in the passage quoted the Lord Chancellor's penultimate sentence (if directed to strict liability rather than negligence) seems to me, with great respect, to be mistaken. Nevertheless the last sentence clearly favours the respondent's position. The passage provides some support for my conclusion, but I do not place much weight on it.

    161. On the other principal issue in the appeal, the issue of causation, I see some force in the submission of Mr Lissack QC that it was illogical for Hale LJ to deal with this issue first, before she had dealt with the main issue of construction. However the essential point is that in order to recover the claimant had to show that the damage which he had suffered was caused, not merely by the horses escaping and being on the main road, but by the characteristics which are capable of founding strict liability under section 2(2)—in short, a frightened horse's propensity to bolt, to continue to flee, and to ignore obstacles in its path.

    162. The trial judge (following the Court of Appeal in Jaundrill v Gillett [16 January 1996] ) thought that the damage was caused by the presence of the horses on the highway, rather than by any relevant characteristic. Hale LJ and the other members of the Court of Appeal took a different view. Hale LJ said at para. 16,

    "In this case, however, it is indeed difficult to conclude that it was anything other than the particular characteristics of these horses once they had been terrified which led to their escape and to this accident taking place. They were still not behaving in the ordinary way in which they would behave when taken on the road. One witness referred to them bolting; another to them trotting across the road in front of the vehicles; they crashed into the vehicles rather than the other way about. It is precisely because they were behaving in the unusual way caused by their panic that the accident took place".

    

 
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