Revision time: the Animals Act 1971
24 June 2009
When enacted, the Animals Act was a revolutionary piece of legislation, introducing strict liability into actions brought for damage done by animals. Unfortunately, the wording of the statute has been subject to unintended interpretation.
What is a dangerous animal?
Section 2 is headed: “liability for damage done by dangerous animals”. Why, then, were Dr and Mrs Henley held liable in 2003 for the personal injuries of Mr Mirvahedy, when the car he was driving was in collision with the Henleys’ horses?
Section 2(2) provides that where the animal is not a dangerous species, the keeper is liable if:
(a) the damage is of a kind which the unrestrained animal was likely to cause or which if caused was likely to be severe and
(b) 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 or are not normally so found except at particular times or in particular circumstances and
(c) those characteristics were known to the keeper
In the Mirvahedy case , paras (a) and (c) were not at issue. The horses were kept in an adequately fenced field. They panicked due to an unknown event and escaped onto the road, colliding with Mr Mirvahedy’s car. It was not disputed that horses when sufficiently frightened will attempt to flee and continue in flight for some distance. The main issue was that horses do not behave in a state of panic at all times.
The court held that under section 2 (b) the Henleys, being keepers of non dangerous animals, were strictly liable for injuries caused by the horses to Mr Mirvahedy. The horses were behaving in a way that, although not normal behaviour generally found in that species, was nevertheless normal behaviour for the species in the particular circumstances (i.e., horses bolting when alarmed).
Subsequent cases
In subsequent cases, the courts found a keeper liable where a horse reared up and unseated its rider, who was injured – as rearing up is a characteristic normally found in horses as a species in particular circumstances; but a keeper was not liable where a cow escaped over a six-bar livestock gate and across a 12 foot cattle grid onto a road colliding with a car, killing one of the occupants. This exceptional ability to escape was so extra-ordinary as to be beyond normal behaviour, in any circumstances.
Consultation paper
Defra have introduced a consultation paper on proposed changes. This would impose liability where there is damage caused by unusual or conditional characteristics of the animal.
The intention is to allow courts “to distinguish between a continuing generalised risk that the keeper knows may occur at some time (e.g. a horse may shy at a plastic bag if one blows in the wind near it) but does not know when it may occur and a heightened specific risk over a specific period of time that the keeper knows will increase the possibility of the animal displaying dangerous behaviour during that period (e.g. cow with calves, or a horse in a field next to a shoot)”.
It is to be hoped that the consultation will result in a more rational legal position being adopted.
Sue Hart
Partner & Head of Property Services
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