If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. ... But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death.
(Exodus c. 21: v 28 29: "Divers laws and ordinances")
The general principles governing the liability of animal and pet owners for personal injury caused by their charges are now largely to be found in statutory, rather than scriptural, form. The Animals Act 1971 (commencement 1 October 1971) sought to rationalise the piecemeal and archaic common law rules that had previously controlled this area of the private law. However, while the law is now, essentially, statute-based, elements of the old common law rules survive in certain key respects. For example, a variety of tortious remedies remain available to Claimants in spite of the legislative framework: trespass to the person and "ordinary" common law negligence survived 1971. In addition, albeit outside the scope of this presentation, the modern law of strict liability for animals belonging "to a dangerous species", contained in the 1971 Act, itself draws heavily upon concepts known to the law before the introduction of the legislation.
It was said that, prior to 1971, "The law of torts has grown up historically in separate compartments and ... beasts have travelled in a compartment of their own." (Read v J Lyons & Co  AC 156, 182 per Lord Simonds (HL(E)) A sceptical reader of recent case law may question the extent to which the 1971 Act has replaced common law chaos with legislative reason. In the first edition of his seminal "Modern Law of Animals" (published in 1972) Sir Peter North anticipating the effect of the 1971 Act on the development of the law wrote this, "The new law of animals will be a statutory framework laid upon a common law basis. Much of it is good. One can only hope that the gloomy prognostications as to other parts will be confounded by the judicial experience in administering the Animals Act 1971." (p. 20). Some 30 years later, Hale LJ was able to list (compendiously) the judicial disapprobation that the Act had attracted (Mirvahedy v Henley  QB 769, 777A later taken to the House of Lords): "The Court of Appeal has more than once confessed to finding section 2(2) difficult to interpret: it has been called `very cumbrously worded' per Lord Denning MR in Cummings v Granger  QB 397 , 404, "remarkably opaque" per Ormrod LJ, at p 407, `somewhat tortuous' per Slade LJ in Curtis v Betts  1 WLR 459 , 462, `inept' per Nourse LJ, at p 468, `the subject of adverse comment in this court and elsewhere' per Russell LJ in the Jaundrill case, its meaning
Personal Injury Briefing July 2021
'elusive' per Lloyd LJ in Breeden v Lampard (unreported) 21 March 1985; Court of Appeal (Civil Division) Transcript No 1035 of 1985 and the source of `puzzlement' per Oliver LJ in that case. It is only slight consolation that the wording which has caused so much difficulty is different from that which was originally recommended in the Law Commission's draft." When Mirvahedy reached the House of Lords, Nicholls added the following comment (in the same vein), "... 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." A few years later Jackson LJ described subection 2(2) as "oracular and opaque". A few months later, Maurice Kay LJ was even more blunt: the drafting of this provision was "grotesque".
This Briefing, and the webinar which it accompanies, is largely based on the legislative provision which has attracted the judicial criticism: subsection 2(2) of the 1971 Act. We have concentrated on the recent(ish) cases and have (mostly) confined ourselves to two species: horses and dogs. We will leave it to our readers to decide whether the judicial criticism is justified.
The Animals Act 1971
had charge of the animal as that keeper's servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.
The basic principles of liability under this subsection were described by Etherton LJ (in Freeman v Higher Park Farm  PIQR P103 (CA)) as follows (at p. 108):
"... the statutory process requires (1) identification of the kind of damage actually caused by the actual animal involved; (2) consideration of whether that kind of damage was likely to be caused by that particular animal unless restrained, or, if caused, was likely to be severe; and, (3) consideration of whether the likelihood of such damage or its severity was due to the deviation of the animal from the normal characteristics of others in the same species or to characteristics which it shared with others of the same species but are normally found in the species only at particular times or in particular circumstances."
He went on to describe the "straightforward" policy of the relevant legislative provision:
2 Liability for damage done by dangerous animals
(2) Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if-
(a) the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and
(b) the likelihood of the damage or of its being severe was due to the 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 at that time
"Strict liability for an animal belonging to a domesticated species will only arise if (1) the damage is caused by a dangerous characteristic (dangerous because of the likelihood that type of damage will be caused, its likely severity), and (2) that characteristic deviates from the normal characteristics of that domesticated species, or (3) that domesticated species is itself dangerous insofar as it normally has that characteristic at particular times or in particular circumstances, and the damage was in fact caused at such a time or in such circumstances."
Equine (and bovine)
Subsection 2(2)(a): foreseeability and the meaning of "likely"
There are two limbs to subsection 2(2)(a): the first alternative requiring damage of a kind which the animal was likely to cause (unless restrained); the second alternative requiring damage which (by contrast to the
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first limb) is unlikely, but which "... if caused by the as in Mirvahedy, it was agreed between the parties that
animal, was likely to be severe." Both limbs require the requisite condition was satisfied, but as a general
likelihood (but, as indicated, of rather different things). proposition, it was necessary, "... to consider the
PROFESSIONAL NEGLIGENCEFor reasons that may be obvious (well, obvious to requirement of s.2(2)(a). Here, too, the position was agreed
equestrians), the horse cases have tended to at trial. The damage was of such a kind [viz. likely to be
concentrate on the second limb and, more specifically, "severe"]. It was of such a kind just because of the size and
on the likelihood of severe injury.
weight of the Charolais steer. Both the experts were
agreed on that, stating that any injury such a steer might
Mirvahedy v Henley  1 AC 491 (SC) concerned a cause was likely to be severe on account of their size. The
horse which had, with two field companions, panicked judge rightly accepted that. The position corresponds with
(as a result of some unknown event) and escaped from that posited by Lord Nicholls in Mirvahedy in  of his
a field and onto a dual carriageway near Torquay where speech."
it collided with the Claimant's motor vehicle (causing
him injuries). It was held that the field was adequately The "reasonably to be expected" formula expressed
fenced and a claim in negligence was dismissed ("On the obiter in Mirvahedy has received support in more recent
night of the accident all three horses stampeded out of a (horse-related and other) case law: see, for example,
corner of their field. They pushed over an electric wire Freeman v Higher Park Farm  PIQR P 6 (CA) (per
fence and a surrounding wooden fence, and then trampled Etherton LJ, para 33); Turnbull v Warrener  PIQR
through a strip of tall bracken and vegetation. Something P 16 (CA) (per Maurice Kay LJ, para 12); Lynch v Ed
seems to have frightened them very badly, but nobody Walker Racing Ltd  EWHC 2484 (QB) (per
knows what it was. The horses fled 300 yards up a track Langstaff J, para 16).
and then for a distance of almost a mile along a minor road
before reaching the busy A380 road."). It was conceded A particular tension evident in the case law is the
by the Defendants that the condition for liability degree of specificity (that is, specificity as to the
contained in subsection 2(2)(a) was satisfied and, in the accident circumstances) as to the likelihood of severe
circumstances, the House of Lords' pronouncements on injury (and the evidence to be led to satisfy this
the meaning of this provision are strictly obiter, but (in requirement). In Welsh v Stokes  1 WLR 1224
the reference "reasonably to be expected") have largely (CA) and Freeman v Higher Park Farm  PIQR P
been followed in subsequent cases. Lord Scott 103 (CA) it was regarded as self-evident that severe
(dissenting) said this (at p. 522H), "A mere possibility is injury was reasonably to be expected when
not, in my opinion, enough. I have suggested "reasonably (respectively) a horse reared while being ridden on the
to be expected" as conveying the requisite meaning of road and when a horse bucked while following a lead in
`likely' in paragraph (a). But it may be that there is no canter on a fast hack (indeed, in Freeman Etherton LJ
material difference between `reasonably to be expected' reacted with a degree of scorn to a suggestion by
and Neill LJ's `such as might well happen'." As indicated, Counsel that there ought to be expert evidence on this
the recent preference has been to treat "likely" as issue, "It is obvious that, if a horse bucks on beginning to
meaning "reasonably to be expected."
canter so that the rider falls off, it is reasonably to be
expected that severe injury will result". It is suggested
Williams v Hawkes  RTR 16 (CA) was another that only a person who has never sat on a horse can so
case involving straying livestock: this time, a Charolais confidently assert.).
steer. The steer escaped from its field after being
spooked by an unknown stimulus and found its way Lynch v Ed Walker Racing Ltd  EWHC 2484 (QB)
onto the public highway where it collided with the perhaps contains a more thoughtful approach to
Claimant's vehicle and caused him injury. At Trial, the subsection 2(2)(a). This was a case was brought by the
Judge reached the startling conclusion that, in the Claimant: a stable lad at a Newmarket racing yard. He
course of its escape, the steer had jumped a 6 foot high was riding a 2 year old colt ("WolfofWallStreet") in a
fence. The Claimant's claim in negligence was string (of nine) setting out for morning work. The lead
dismissed. As to subsection 2(a), Davis LJ recorded that, horse in the string spooked while the horses were
Personal Injury Briefing July 2021
walking. There was then a domino effect with the
unlikely to be a severe one."
following horses also spooking (including that ridden by
the Claimant). The Claimant's horse whipped round at
PROFESSIONAL NEGLIGENCEspeed, lost its footing and fell onto its nearside. The
In other words, Lynch suggests that a degree of specificity as to the speed (at which the rider is
Claimant was thrown and lost consciousness. Langstaff thrown), the surface onto which he or she falls and the
J's judgment contains an interesting (and, in the context general circumstances (of the fall) are all of relevance to
of the cases, rare) consideration of the level of subsection 2(2)(a): it is not a matter of treating (nearly)
generality/specificity required to satisfy the every fall from a horse as necessarily justifying the
requirements of subsection 2(2)(a) (judgment, paras 23 conclusion that severe injury is reasonably to be
24 and 57 - 58):
"I ... consider that the level of particularity or, looking at it from the converse, generality, is important. It cannot be that the circumstances should be defined so particularly that, on the one hand, it is almost impossible to say that any other animal of the same species would behave in precisely the same way, because none can be shown to have faced precisely the same circumstances, and it cannot be known; nor can it be so particularly defined for the purposes of section 2(2)(b) that the circumstances themselves answer whether an injury is likely or that if it is to take place, if it is likely to be severe. Nor can it be reduced to such a level of generality as completely to divorce the question from the facts of the case. ... Where precisely to place it must permit the sections of statute to have some meaning and effect as has been pointed out in the authorities. If section 2(2)(a) is to be capable of separate answer from 2(2)(b) the fact that, in the circumstances, an animal causes serious injury cannot show that any injury likely to be caused would be serious. ... I think the difficulty, in this case, is that evidence relevant to the (lack of) likelihood of injury and the evidence which touched on the severity of an injury if one occurred, actually overlap. If what is put to a witness is along the lines that if there is a fall off a horse in circumstances such as these, then there might be bruising, or there might be a sprain, and the witness accepts that is so, the witness is giving a view of what is at least likely to be the generality of the injuries suffered. ... The fact that normally, when a horse falls in circumstances such as these, a rider is able to step off or, if a rider falls, will suffer only minor injury such as a sprain or bruising leads to a conclusion that it is unlikely that that rider will then suffer serious harm so as to come into the category of "severe" within the statute. The answer to the question whether any injury is likely is no; and that if there is any injury, it is
Subsection 2(2)(b): characteristics and propensities
Unfortunately, subsection 2(2)(b) like subsection 2(2) (a) also has two limbs (something which does nothing to make it easier to construe). The proper approach to these limbs was helpfully summarised by Lord Nicholls in his speech in Mirvahedy:
"Requirement (b) will be satisfied whenever the animal's conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal's behavior was characteristic of the species in those circumstances."
The use of the word "normally" in subsection 2(2)(b) has been held to bear a "core meaning" of "conforming to type" (see, Welsh v Stokes  1 WLR 1224 (CA) and Goldsmith v Patchcott  PIQR P 167 (CA) at p. P173 per Jackson LJ).
In Goldsmith the evidence (as found) that bucking and rearing were a characteristic of horses in the circumstance of their being startled or alarmed justified the conclusion that the second limb of subsection 2(2) (b) were satisfied. In Turnbull v Warrener  PIQR P 335 (CA) a horse ridden for the first time across open country in a bitless bridle bolted before dumping its rider onto a tarmac road. Stanley Burton LJ relied on a manual, "The Bitless Bridle" (cited by both parties' experts at Trial) in which it was stated that, "exuberance on the part of a horse fitted for the first time with a bitless bridle occurs in less than 1 per cent of cases." In the circumstances, it is not surprising that the Court concluded, "A characteristic of an animal is something inherent in the animal. An unprecedented, one-off action of an animal is not a characteristic of that animal. It is difficult to say of action that occurs in less than 1 per cent
Personal Injury Briefing July 2021
of horses fitted with bitless bridles that it is characteristic propensities of the animal (as defined by the case law
of them [to bolt in open country] at particular times or in under subsections 2(2)(a) and (b) described above).
particular circumstances." By contrast, the unchallenged
PROFESSIONAL NEGLIGENCEexpert evidence in Smith v Harding  11 WLUK
Constructive knowledge will not suffice for the purposes of establishing liability: it is not enough that
666 that a horse which was twitched and cross-tied in the animal's keeper ought to have known of the
order to be clipped (and which, in these particular wayward habits of his charge. Knowledge of the
circumstances, kicked out thereby injuring a groom propensities of a particular animal can be imputed to
when the clippers came close) was exhibiting behaviour the keeper of the animal by his servants and/or agents.
which conformed to type in those particular The Act provides that the keeper will be liable if the
circumstances: the second limb of subsection 2(2)(b) relevant characteristics, what we have termed the
was satisfied. The same conclusion was reached in propensity, of the animal were "at any time known" to
Bodey v Hall  PIQR P1 (QB) where a pony pulling the person in charge of the animal as the "keeper's
a trap bolted and, in doing so, tipped the groom (riding servant", or where "another keeper" of the animal, below
on the back) out of the trap. It was held that, "The the age of sixteen, knew of the animal's propensity and
horse's behaviour in becoming startled by a stimulus of an was a member of the keeper's household. The use of
unknown cause was not normal behaviour generally for the phrase "at any time" would seem to refer to the
animals of that species but it was a normal behaviour in time when the knowledge of the animal's propensities
the particular circumstances where there was an unknown was acquired, rather than the time of injury: it is (and
was) a key element of the old common law scienter
principle that the keeper or his servant must have
Williams v Hawkes  RTR 16 (CA) provides an advance knowledge of the animal's tendency to behave
example of a case which turned on the requisite (causal) in a particular way. It would seem to follow that if one
connection/linkage between subsections 2(2)(a) and (b): servant of the keeper has knowledge of an animal's
the escaped steer on the road satisfied subsection 2(2) propensity and yet another servant, without such
(a) by reason of its size and weight, but subsection 2(2) knowledge, is "in charge" of it at the time that it causes
(b) (second limb) required something different: "The injury then the keeper cannot be held liable. It is clear
damage was not simply attributable to the size and weight that a wide construction will be given to the loosely
of the cow (that satisfied s 2(2)(a) alone). The damage ... drafted term "household" which would include, inter alia,
was also attributable to the steer behaving in this family members, relatives, and any other persons who
dangerous way in the particular circumstance of it having may participate to a substantial degree in the life of the
been spooked by the various averse stimuli, as steers are collective household.
wont to do in such circumstances." Further, "The steer
was ... running on the A465 in a panic, acting under the Canine
original (but ongoing) averse stimulus which had given rise
to the escape from the field in the first place and then Paragraph 2(2)(a)
exacerbated by subsequent averse stimuli such as the
lights and noise of the cars. The linked requirements of s. Whereas horses buck and cattle stray, typical injuries
2(2)(a) and (b) were thus satisfied on the facts of this case." caused by dogs tend to be either bites or knock-overs.
In cases involving a bite, the first limb of subsection
Subsection 2(2)(c): knowledge etc.
2(2), tends in practice to be satisfied by reference to
the second element (likelihood of severe damage). A
After the linguistic and intellectual contortions required claimant need not spend a great deal of time convincing
in the construction of subsections 2(2)(a) and 2(2)(b) of a court that damage from a dog bite `was likely to be
the Act, the knowledge test contained in section 2(2)(c) severe', as both qualifiers in that statement have been
is comparatively light relief. There is relatively little case given relatively low thresholds by the courts: `likely' (as
law in which this subsection has been examined. The above) is interpreted widely as `might' or `might well'
subsection requires that the "keeper" of the animal in (per Lord Justice Neill in Smith v Ainger (The Times 5
question has either actual or imputed knowledge of the June 1990), and `severe', according to Lord Justice
Personal Injury Briefing July 2021
Jackson in Goldsmith, will encapsulate `[m]ost animal attacking other dogs and causing personal injury to
related damage which someone wishes to sue about'. humans; that it was unrealistic to distinguish between a
Where dog-bite cases have travelled to the higher
PROFESSIONAL NEGLIGENCEcourts, the degree of time spent on the likelihood of
bite and the consequences of a buffet; and that the injuries caused to the claimant did indeed constitute
severe damage has accordingly been minimal. Lord damage of a kind which in the circumstances existing at
Denning in Cummings addresses the question in a single the time, the dog was unless restrained likely to cause.
sentence - "this animal was a dog of the Alsatian breed; if Lord Justice Neill also disagreed with the judge on the
it did bite anyone, the damage was `likely to be severe'"; likelihood of the damage being `severe'. Although the
Lord Justice Slade in Curtis v Betts quotes Lord Denning injuries suffered by the claimant were `quite minor', he
from Cummings and echoes "So too in the present case. referenced the decisions in Cummings and Curtis which
Max was a dog of the bull mastiff breed. If he did bite suggested that damage caused by a large dog such as
anyone, the damage was likely to be severe."
Alsatian was likely to be severe, and although they
were bite cases, he applied their conclusions to the
Although defendants might legitimately take the issue if second part of paragraph 2(2)(a).
the breed of dog in question is a `miniature' that the
damage wasn't likely to be severe, one must still bear in Paragraph 2(2)(b)
mind, as per the NHS's own guidance, that animal bites
that puncture the skin carry with them significant risks Although a claimant might therefore have a relatively
of infection, and a quick search of the internet reveals easy time with paragraph 2(2)(a), the second paragraph,
that even a chihuahua is capable of doing fairly nasty paragraph 2(2)(b) is less straightforwardly navigated
things to fingers and faces. As set out further below, and expert evidence will almost always be required.
when it comes to paragraph 2(2)(b) and the Depending on the facts of any given case, either of the
`characteristics' question, expert evidence is almost two elements relating to the dog's characteristics might
always going to be required, and so Claimants looking be available: either the dog's characteristics which lead
to make out the cause of action for smaller breeds to the bite will be abnormal for animals of the same
might well be advised to have their expert comment on species (in the dog context, for `species' read `breed'); or
bite strength and oral bacteria for the purposes of the dog's biting behaviour could be conversely normal
or the breed at particular times or in particular
circumstances. The first part of the second limb is
For `knock-over' cases, paragraph 2(2)(a) is considerably straightforward if the defendant has an aggressive
more likely to be a battleground of the claim. Smith v breed of dog, where normally that breed is not
Ainger is an example of such a case. There, the aggressive, then the defendant's dog will be an
defendant's Alsatian lunged at the claimant's own dog, abnormal animal and the first part of paragraph 2(2)(b)
and in doing so knocked the claimant to the ground will be met (provided of course the claimant can show
causing him to sustain injury. The judge at first instance their injury was `due to' that aggressive nature). The
had distinguished between the focus of the dog's attack second part of the paragraph (and particularly how it is
the claimant's dog - and the damage which had reconciled with the first) is less clear cut.
actually occurred personal injury to a human. In the
judge's conclusion, because there was no evidence to Helpfully, although a horse case, Lord Nicholls
suggest the dog was likely to attack human beings, it hypothesised about the behaviours of a dog guarding
could not be said that it was likely the dog would have its territory or a litter of pups in resolving the problem,
caused the damage complained of; the first part of and preferred an interpretation of the statute which
paragraph 2(2)(a) was not met. The judge also said that "Damage caused by an attack by a newly-calved
concluded that it could not be said that it was likely cow or a dog on guard duty fits readily into the description
that any injury caused by the dog would be severe; the of damage due to characteristics of a cow or a dog which
second part of paragraph 2(2)(a) was not met. are not normally found in cows or dogs except in particular
Accordingly the claim failed. But on appeal, Lord Justice circumstances." He expressly endorsed what he referred
Neill held that there was evidence of previous form of
to as the Cummings interpretation as also applied in
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Curtis) of paragraph 2(2)(b) namely that the second strand included what were essentially normal behaviours when exhibited at particular times and circumstances. In Cummings, Lord Justice Ormrod had found that an Alsatian running loose in a yard, which it regarded as part of its territory, had characteristics such that in those circumstances and at that time it might cause damage the second part of paragraph 2(2)(b) was met; in Curtis, the judge at first instance concluded after hearing expert evidence on bull mastiff behaviour that bull mastiffs had a tendency to react fiercely at particular times and in particular circumstances, namely when defending the boundaries of what they regard as their own territory, which in this case included the back of a Land Rover vehicle; the Court of Appeal upheld that conclusion. In bite cases, a normally docile dog becoming aggressive when perceiving a threat to its territory, and in buffet cases, a dog running off its lead when it sees another dog, are both examples of normal characteristics in certain circumstances which have met the second part of the test in paragraph 2(2)(b).
Claimants must, however, avoid complacency in thinking that the Mirvahedy approach will mean they always get over the line on one or the other parts of paragraph 2(2)(b): e.g. either by relying on a perceived fallacy that the dog's behaviour will be abnormal or normal and the paragraph allows both. The first point is that it is a claimant's case to prove, and expert evidence on the breed's characteristics will invariably be required; without it the court will not be able to reach a conclusion on paragraph 2(2)(b) and the claim will fail. Secondly, to the extent that the claimant is attempting to show the dog's characteristic was normal in particular times and circumstances, the claimant will have to show that the characteristic was otherwise abnormal. That is easier in a bite case in general aggression is an unusual characteristic in a dog but harder in a buffet case. For instance, if a claimant is knocked to the ground by a Jack Russell, say, who jumps up at him, the Claimant will need to show that jumping up at people is generally unusual for Jack Russells and only occurs at particular times and in particular circumstances. Third and finally, the requirement in paragraph 2(2)(b) is that a claimant show the damage caused or the likelihood of it being severe was "due to" the relevant characteristic. In Curtis, the Court of Appeal struggled in endorsing the conclusion
of the judge at first instance as although the judge had made a finding on the evidence that bull mastiffs did have a characteristic of being aggressive when guarding their territory, the judge had not set out in black and white that the injury to the claimant in that case was due to the territorial guarding behaviour, because he did not definitely state that the territory included the rear of the Land Rover. The Court of Appeal gave the judge the benefit of the doubt in inferring that such must have been what the judge had concluded, but the judgment highlights a potential pitfall for claimants, whose burden it is to prove the bite was caused by the identified normal breed behaviour.
The above analysis is also highly relevant to the third limb of the subsection 2(2) test paragraph (c) and the keeper's knowledge. As set out above, there are strict limits to what knowledge can be imputed, but in the context of dog bite cases there are two important points to note. First, the knowledge need not be of biting behaviour per se, but can be extrapolated from fierce or aggressive behaviour in general. Defendants may often seek to argue in a dog bite case that the particular dog in question had never bitten before and therefore the knowledge requirement was not met, but provided that the claimant has linked the injury as being due to a `characteristic' e.g. fierce or aggressive behaviour generally then the knowledge need only be of that general characteristic and not of a particular manifestation of it the bite. For instance in Curtis the conclusion of Lord Justice Neill was that because the defendants "knew at least that the two dogs had the habit of jumping up at the school gate in the playground and growling and snarling at passers-by" that "the defendants must be taken to have known of [the Bull Mastiff's] relevant characteristic, namely his tendency to react fiercely when defending what he regarded as his own territory".
The second point is that where a claimant is relying on the second part of paragraph 2(2)(b) normal behaviour at/in particular times/circumstances the claimant does not need to show that the keeper had knowledge of the actual animal in question, but can show in the alternative that the keeper had knowledge of the damage-causing behaviour in the breed in
Personal Injury Briefing July 2021
general. For instance, if evidence shows that a keeper
possession for the purpose of preventing it from
is an experienced Alsatian owner, and knows the
causing damage or of restoring it to its owner, a person
guarding behaviours of the breed, a defendant would
PROFESSIONAL NEGLIGENCEbe unable to escape paragraph 2(2)(c) by saying he/she
is not a keeper of it by virtue only of that possession.
had no knowledge that the particular Alsatian would Thus, the Act provides explicitly that a person with
display this characteristic. The point is made simply by possession of an animal can be a keeper of it even
Dyson LJ in Welsh v Stokes (again a horse case) at though he does not also own it. The Act further provides
for the liability of the keeper to continue while
ownership of the animal or possession of the same is
"70. It is not in dispute that subsection (2)(c) requires being transferred from one individual to another.
it to be shown that the keeper knew that the Indeed, it is also conceivable that two or more persons
particular animal which caused the damage had the could face concurrent liability as keepers in respect of
characteristics found to satisfy subsection (2)(b). The the same animal. Clearly, Plaintiffs can be faced with
only question is how that knowledge can be proved. the dilemma of which Defendant to sue in cases where
Miss Rodway submitted that it can only be proved by more than one person is "keeper" for the purposes of
showing that the keeper knew that the particular the Act.
animal had previously behaved in that way.
71. I do not agree. I do not see why a keeper's
knowledge that a horse has the characteristic of Subsections 5(1) and (2) of the 1971 Act provide the
normally behaving in a certain way in particular keeper with (among others) the following defences
circumstances cannot be established by showing that (often applied in the horse cases):
the keeper knows that horses as a species normally
behave in that way in those circumstances.
"A person is not liable under section 2 ... of this Act for
any damage which is due wholly to the fault of the
person suffering it." (section 5(1));
The Act itself provides a definition of "keeper" at subsection 6(3) and (4) which state:
(3) Subject to subsection (4) of this section, a person is a keeper of an animal if-
(a) he owns the animal or has it in his possession; or
(b) he is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession;
and if at any time an animal ceases to be owned by or to be in the possession of a person, any person who immediately before that time was a keeper thereof by virtue of the preceding provisions of this subsection continues to be a keeper of the animal until another person becomes a keeper by virtue of those provisions.
(4) Where an animal is taken into and kept in
"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" (section 5(2)).
There will only be rare cases in which damage is "wholly" due to the fault of the injured person.
The subsection 5(2) defence is not available to an employer whose animal has injured an employee in circumstances where the risk [of injury] is "incidental" to the employee's employment (see, section 6(5) of the Act). The Law Commission explained that the rationale of this change in the law was that the employer was the person in the best position to minimise the harmful consequences of his enterprise through the use of insurance (Law Com No 13, para 20).
It has been held that the subsection 5(2) defence is not synonymous with the common law defence of volenti non fit injuria and that the words of the statutory provision should instead be given their ordinary and
Personal Injury Briefing July 2021
natural meaning (in order that a defence to a form of taken up residence in his yard three weeks earlier. The
qualified strict liability retains its force and is not dog had not done anything in that time to indicate that
whittled away by the restrictive common law defence).
PROFESSIONAL NEGLIGENCEThere are many examples of the operation of the
it might bite (paragraph 2(2)(c) of the 1971 Act could not be met), but there was found to be a falling below
subsection 5(2) defence in horse cases: see, Jones v the reasonable standard in failing to supervise and
Baldwin  10 WLUK 221; Bodey v Hall  control the dog for a reasonable period in order to
PIQR P1 (QB); Goldsmith v Patchcott  PIQR P11 assess whether it was docile or might be aggressive.
(CA) foresight of the possibility of some bucking will
suffice for the purposes of a voluntary assumption of That said, an OLA/negligence claim has its own
risk (the statutory defence) and it was not necessary for challenges for claimants in meeting the burden of proof
the Claimant to foresee the precise degree of energetic particularly as regards showing unreasonable
misbehaviour which resulted in injury; Turnbull v behaviour (not needed in a strict liability Animals Act
Warrener  PIQR P16 (CA) where the following case). In Whippey v Jones  EWCA Civ 452, the
passage in a first instance judgment was approved, Court of Appeal emphasised that the duty of care will
"Riding is a pursuit involving the control by a rider with the generally be breached only if a reasonable person in the
wind and the aids of rein, leg, seat and crop of a horse with defendant's position would "contemplate that injury is
its own mind and physical attributes. That relationship and likely to follow" from his acts or omissions. The judge at
activity involving two living beings cannot be precisely first instance had found that the defendant, who had
predicted or judged to the second or centimetre. The taken his Great Dane to the park for exercise, and had
occurrence of an accident in such a manner as I have unleashed him, was negligent when the dog had
found is precisely the risk and type of risk which a rider knocked the claimant down a river bank causing him to
break his ankle. The 1971 Act did not apply because
paragraph 2(2)(a) was not met the injury was not
Negligence and OLA
likely to have been caused, and was not likely to have
been severe, but the judge at first instance concluded
As above, liability under the 1971 Act does not displace that the defendant had been negligent because the
wider liabilities at common law or under the Occupiers' injury was foreseeable as a "possibility" and the
Liability Act 1957.
defendant had not taken reasonably prudent steps to
prevent it. The Court of Appeal reversed that decision,
Unlike section 2 of the 1971, the 1957 Act does not saying that negligence in these circumstances required
require the occupier to have the subjective knowledge injury as a `likelihood' and that `possibility' was not
that the animal was likely to pose a risk to the visitor, enough there must be sufficient probability of injury
but rather the question is analysed objectively: was the to lead a reasonable person in the position of the
damage reasonably foreseeable and were there defendant to anticipate it. The defendant had (it was
reasonable steps which could have been taken to found) carefully checked for other adults, and the Great
ensure the claimant's safety? In a dog bite case which Dane was not inclined to be aggressive rather than
takes place in a visitor/occupier context (e.g. a postman intimidating. As such, the defendant had acted
or delivery driver entering a yard guarded by a dog), a reasonably in unleashing him.
claimant will not have to meet the onerous burden of
demonstrating the defendant's knowledge of the
characteristics in issue, making it a somewhat easier
task to prove the case. In Smith v Prendergast (The
Times, 18 October 1984, CA.), for instance, the owner
of a scrapyard was found liable under the OLA/in
negligence for an attack by a stray Alsatian which had
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