The Court of Appeal recently considered this case, scrutinising section 2 of the Animals Act 1971 set in the context of the facts of the incident. The judge at first instance found strict liability under the Act; a decision which was re-visited by the Court of Appeal which heard arguments on causation and confirmed the decision despite an anomalous precedent.
The claimant was driving down a dual carriageway in Wales when his vehicle collided with a loose steer, resulting in significant injuries to the claimant and extensive damage to his vehicle. The steer, which was killed in the impact, was owned by a local farmer from whose field it had escaped. It was a Charolais, which is a particularly large and heavy breed. It was accepted that the defendant was an experienced handler and keeper of cattle.
A case was brought in negligence and under the 1971 Act. The judge at first instance dismissed the claim in negligence, finding the management of the animal and the nature of the fencing entirely appropriate.
The statutory claim was more complex. The reason for the steer’s escape, and its route thereafter, was not established, but the judge accepted evidence that the animal had been startled and fled the field in alarm, eventually arriving on the dual carriageway in an ongoing state of panicked unpredictability. The experts agreed that such a condition was to be anticipated in cattle presented with a novel environment including flashing lights and noise such as this steer experienced on the night of the accident.
The judge, therefore, held that the steer’s behaviour fell within the remit of section 2(2) of the 1971 Act, as he was satisfied that the animal was acting in accordance with a characteristic found only in the particular circumstances of being alarmed, and that that characteristic was causative of the accident. He gave judgment for the claimant.
The defendant appealed the decision.
Court of Appeal
On appeal, the judges were bound to consider the leading case of Mirvahedy v Henley  UKHL 16, which examined the question of whether a keeper of a non-dangerous animal was strictly liable for damage caused by the animal when its behaviour in the circumstances was not abnormal for an animal of that species in those circumstances. The majority judgment affirmed that point, and the first instance finding of strict liability in this case follows the reasoning of those judges.
Some consideration was given to s2(2)(b) of the Act. The judgment notes that the damage was not simply attributable to the size and weight of the steer, but also in it behaving in this dangerously unpredictable way in the particular circumstance of it having been spooked. This concurs with Mirvahedy.
The appellant defendant sought to distinguish this case on the basis that the claimant’s car had collided with the animal rather than the animal colliding with the car, as happened in Mirvahedy. The appeal judge was not persuaded of the significance of that distinction, and went on to consider the unreported case of Jaundrill v Gillett (16 January 1996). In Jaundrill, some horses were let out of a field by a malicious intruder and thereafter, were found galloping down a road. The claimant collided with two of the horses. The Court of Appeal reversed the trial judge’s decision, finding no liability under the Act, reasoning that there must be a causal link between the characteristics of the animal and the damage suffered; but here the effective cause of the accident was the release of the horses onto the road, rather than the panic characteristic that they then displayed.
The Court of Appeal in the present case noted that the Jaundrill decision was difficult to reconcile with either the facts or the subsequent findings of Mirvahedy. It was distinguished from the present case on the basis of the steer’s ongoing stress reaction, and the judge commented that Jaundrill is to be treated with caution and as a decision confined to its own particular facts and circumstances.
The Court of Appeal was guided by the approach of Lord Walker in Mirvahedy, 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, 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”. The judgment concluded that the steer was panicking, acting under the ongoing averse stimulus which had given rise to the original escape and exacerbated by subsequent factors, and that the linked requirements of section 2(2)(a) and (b) thus were satisfied on the facts of the case. The appeal was dismissed.
Both judges expressed considerable suspicion regarding the decision in Jaundrill, and advocated considerable caution in citing it as an authority.
What this means for you
This case adds to the raft of judicial consideration of the application of section 2(2)(b) of the 1971 Act. It serves to reiterate that departure from the principles of Mirvahedy will be difficult, but it is a helpful reminder of the rationale governing the causation element of liability under section 2(2) of the Act. The need for a link between the characteristic and the damage suffered is helpfully highlighted.
Practitioners have been in little doubt that Jaundrill represented an anomalous decision confined to its own specific facts. Lord Hickinbottom’s comment that it provides no assistance as to the relevant legal principles is an indication that reliance on the case as an authority is unwise.
This judgment makes clear that the mechanics of the collision, for example, whether the animal collided with the vehicle, whether the vehicle collided with the animal or whether the damage was caused by a driver seeking to avoid the animal etc. are not determinative. Instead, the court will evaluate why the animal was present on the road and what characteristics it displayed at the material time.
Here, it can be seen that there was a particular circumstance, although not specifically identified, that had initially caused the steer to become panicked and startled, being the characteristic which was seen to be causative of the accident. It was also accepted that the steer’s behaviour had been exacerbated by subsequent aversive stimuli to include the lights and noise of oncoming cars. As a result, this case could have been decided differently had there been no particular set of circumstances leading to the steer acting as it did.
Guiding your way through the criteria under section 2(2) of the Animals Act 1971 still remains tricky and ultimately this case does not offer much in the way of fresh guidance. Every case must be assessed on its own specific facts, and it is clear from this judgment that the application of this Act and ensuing liability is particularly fact sensitive.