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14 December 2021
After Nearly Two Decades, the Tidal Wave of Mirvahedy Finally Turns

On 8 December 2021 the Court of Appeal handed down judgment in this case which captured the interest of the media as much as it did Animals Act practitioners when it was heard at first instance in the High Court in January. The appeal followed a liability-only trial of the Appellant’s claim arising out of a hunting accident occurring on 15 September 2018. The Appellant was injured when the horse ‘Tommy’ that she was riding reared and fell on top of her. Tommy died within minutes.

The Appellant’s claim was brought on the (sole) basis that her employer, the Respondent, was the keeper of the horse and therefore was strictly liable under the provisions of s. 2(2) of the Animals Act 1971.

There were a number of issues in the case when it was heard at first instance, including;

i) Whether the Claimant was acting in the course of her employment by the Defendant (this being relevant to and decisive of the s.5(2) Volenti defence.)

ii) The cause of Tommy rearing and the general circumstances in which he came over onto the Claimant (here the choice, based on opposing veterinary expert opinion, was between rearing through disobedience and rearing because of a cardiovascular event referred to in the vernacular as a ‘heart attack’.)

iii) The behavioural history of the horse if and in so far as it might have been relevant to the horse rearing as a result of disobedience

iv) What the Claimant and Defendant knew of that behavioural history (since, in context, the Defendant would have been fixed with any knowledge the Claimant had)

v) Having determined the cause and circumstances of Tommy rearing (assuming it was a result of a cardiovascular event and not because of a pre-existing tendency to rear) whether the Defendant and Claimant had had actual or constructive foresight of that

vi) Finally, depending on the answers to the foregoing, the proper application of s. 2(2)

At first instance, the following findings were made;

(i) The Claimant was acting in the course of employment accordingly, Volenti did not run as a defence.

(ii) The rearing was the result of a cardiovascular event.

(iii) It was therefore irrelevant that the horse had in fact reared before and even that it had previously thrown the rider (the Claimant) on one such occasion.

(iv) It was also irrelevant that the Claimant knew of one or more such rearing events;

it was not suggested that Tommy was ‘unusually prone’ to rearing.

(v) Whilst the veterinary experts agreed that a horse might in fact rear as a response to catastrophic internal injury that was not something which the keeper (or the Claimant), as ordinary ‘horsemen’ would have foreseen (the effect of the opinion of the equestrian experts)

As to the answer to the critical sixth question, the Deputy Judge concluded that this meant that the strict liability provisions of s. 2(2) did not apply because the ‘particular circumstance’ within the meaning of s. 2(2)(b) which caused the horse to rear was not known to the keeper. Accordingly, there was not the requisite knowledge under s. 2(2)(c).

On appeal, the Claimant (Appellant) argued that the Deputy Judge was wrong to find that she failed to satisfy 2(2)(b). It was argued that rearing was a ‘conditional characteristic’, only ever displayed when there was a particular trigger, and once that had been established, there was no need to go beyond these ‘immediate circumstances’ and investigate the wider background to the episode of rearing. It was argued that such was the effect of Mirvahedy v Henley [2003] 2 AC 491. The Appellant prayed in aid the facts of Mirvahedy itself, where of course no one knew for certain the trigger which caused the horses to flee, simply that there must have been such trigger. Finally, on knowledge, she argued that the Defendant knew that horses can rear for any reason, and that consequently, 2(2)(c) knowledge was established. The Appellant said that whether the particular trigger was fear, pain, or something else, all we need to know is that a trigger must have been present. By requiring the Respondent keeper to know that horses can rear when suffering an internal catastrophic event, the bar was set too high. The Respondent undoubtedly knew that horses can rear, and that was enough, given that a triggering event must have occurred in order for Tommy to have reared. Alternatively, if knowledge of the circumstances in which Tommy did in fact rear is required, it was sufficient to know that horses will rear when panicking or being disobedient.

It was accepted by the Defendant at first instance that had the Deputy Judge found the cause of the rearing to be disobedience, the Claimant would have satisfied both 2(2)(b) and 2(2)(c). On appeal, the Respondent’s position was that once it was held that the cause was an unforeseeable (by a layman and ordinary horseman, at any rate) cardiovascular event, it became a very good example of a s. 2(2)(c) case. It took the case outside the strict liability provisions of s.2 of the Animals Act 1971 for the reasons the Deputy Judge gave.

Once the Deputy Judge had found that the horse here reared as a result of a catastrophic internal injury which the Respondent could not reasonably have foreseen, this became a case where strict liability did not arise under the Act. The other horse cases were rightly distinguished, and for the reasons given: in Goldsmith v Patchcott [2012] EWCA Civ 183 the horse reared because it was startled; in Freeman v Higher Park Farm [2008] EWCA Civ 1185 the horse bucked when going into canter; in Welsh v Stokes [2007] EWCA Civ 796 the horse reared because the inexperienced rider was unable to give it confidence in that situation; in Turnbull v Warrener [2012] EWCA Civ 412 the horse refused to respond as it was being ridden in a bit-less bridle.

The Respondent argued that the real, and only, question for appeal, was therefore whether it was correct for the Deputy Judge to find that the cause of the rear was relevant. Consequent upon the caselaw that has developed over the years since Mirvahedy, the Respondent said that the following principles are established;

(i) If a horse rears or bucks, it is likely to cause severe damage (Freeman and Goldsmith

for example).

(ii) Rearing (or bucking) is a characteristic (see, again, Freeman and Goldsmith).

(iii) The keeper need only have knowledge of the characteristic in the species (rather than of the particular animal in question) with such knowledge being actual (Welsh).

The Respondent argued that if the Appellant’s approach were correct, in other words if there were no need to prove a cause for the characteristic behaviour, and no need to prove knowledge of such cause on the part of the keeper, it would deprive s. 2(2)(c) of any real meaning. Unless the Defendant has some awareness of what might cause a docile dog to bite, and the dog bites in such circumstances, he is able to rely on s.2(2)(c). The classic example would be a bitch with pups which it feels the need to defend against (for example) an over- inquisitive toddler. The Claimant succeeds there only if the Defendant knows the bitch has pups and knows or ought to know (as any dog owner would) that it may be aggressive/defensive if it feels threatened. On the Appellant’s approach, however, the statutory enquiry ends with just proof of the characteristic in the species (biting) and that dog owners know dogs as species bite. The Respondent said that if that approach were correct, it would effectively put s 2(2) on the same footing as s 2(1).

The Court of Appeal agreed. It was found that it can be noted that in every instance where the keeper was held liable the court identified not only the characteristic behaviour such as rearing, but also the particular time or circumstance when the characteristic manifested itself. That time or circumstance was something could be “described or predicted.” In each case where liability was established, there was a particular event triggering a reaction which caused severe damage in circumstances where the keeper knew that such an event could lead to the reaction in question.’

The Court of Appeal held that s(2)(2)(b) and 2(2)(c) must be read together, at least to the extent of identifying what needs to be known. Consequently, it was held that 2(2)(b) is not emptied of all its content, and that this must be correct by reason of both proper statutory construction and principle. Giving the lead judgment, Carr LJ cited Lewison LJ in Turnbull, wherein it was stated that “…the Law Commission did not proclaim an intention to widen the existing scope of the law to the extent that it would be necessary to catch an ordinary riding accident.” Carr LJ went on to reject the submission that the cause of the rearing was irrelevant, given that whatever the cause, the rearing was within the bounds of normal equine behaviour. She found that if that were to be correct, the consequences would be “striking.”

It should now be clear that Claimants must demonstrate not just the occurrence of the characteristic behaviour, whether it be a dog biting, a horse rearing or bucking, or a cow stampeding, but they must be able to demonstrate both the particular circumstances in which the characteristic behaviour arose, and that the Defendant keeper had knowledge of the same.

Georgina Crawford represented the Defendant in the High Court at first instance and was led by William Norris QC of 39 Essex Chambers in the Court of Appeal, instructed by Hazel Leeson of Kennedys.

To view the full judgement, please click here.

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Georgina Crawford

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