David Pittaway QC:
Introduction
- The claim arises out of an accident on 24 November 2005 when Mrs Bodey sustained an injury whilst travelling as a groom in a pony and trap driven by Mrs Hall on a country lane between Cold Ash and Blewbury near Newbury in Berkshire. The horse, Pepper, became startled shortly after Mrs Hall turned off a country lane onto a track and shot forward rapidly with the result that the trap tipped or tilted and both Mrs Hall and Mrs Bodey were thrown out of the trap onto the ground. Mrs Bodey sustained a severe head injury. The action was pleaded in negligence and strict liability under section 2 of the Animals Act 1971. As the trial proceeded the allegation that Mrs Hall had acted negligently was not pursued and reliance was placed solely on section 2 of the Act.
Law
- The relevant sections of the Animals Act 1971 read:
"2. Liability for damage done by dangerous animals
(1)Where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.
(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 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 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."
"5 Exceptions from liability under sections 2 to 4.
…
(2)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."
- The scheme of the Act is to impose strict liability on the keeper of an animal under section 2(1) for any damage caused by an animal which belongs to a dangerous species and under section 2(2) for damage caused by an animal which does not belong to a dangerous species. Section 2(2) contains three requirements which have to be satisfied for strict liability to be established. Section 5 provides for three statutory exceptions. As acknowledged by Lord Denning MR in Cummings v Granger [1977] 1 QB 397 at page 404 F "the section is very cumbrously worded and will give rise to several difficulties". Lord Nicholls of Birkenhead in Mirvahedy v Henley [2003] 491 described it at 504 paragraph 9 as "opaque".
- It is acknowledged by both parties that section 2(1) does not apply in this case. It is accepted that horses are commonly domesticated in the British Isles. Much of the argument in this case has been about the application of the requirements of section 2(2) (a) and (b) which apply to all species of animals commonly domesticated here. It is accepted by the parties that if section 2 (2) (a) and (b) apply then (c) will apply in this case.
- The main issues are concerned with whether the second limbs of both section 2 (2) (a) and (b) are satisfied. It is accepted by the parties that the first limbs of section 2 (2) (a) and (b) do not apply.
- The second limb of section 2 (2) (b) has been subject to argument in a number of previous cases as to whether section 2 (2) (b) applied not only to cases where a normally docile animal behaves out of its usual character at particular times or in particular circumstances but also to cases where an animal behaves uncharacteristically in a manner characteristic of its species at particular times or in particular circumstances.
- The two different interpretations of section 2 (2) (b) of the Act in the cases in the Court of Appeal were described by the House of Lords in Mirvahedy v Henley (2003) UKHL 16, (2003) 2 AC 491 as the Cummings and Breedon interpretations after Cummings v Granger [1977] 1 QB 397 and Breedon v Lampard (21 March 1985 unreported).
- The issue was resolved by a majority decision of the House of Lords in Mirvahedy where at paragraph 43 Lord Nicholls said:
"In other words, if the tendency of a horse to bolt when sufficiently alarmed is to be regarded as a normal characteristic of horses "in particular circumstances" and, hence, a horse will meet requirement (b), it is not easy to conceive of circumstances where dangerous behaviour which is characteristic of a species will not satisfy requirement (b). A normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances. Thus the Cummings interpretation means that requirement (b) will be met in most cases where damage was caused by dangerous behaviour as described in my requirement (a). 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 behaviour was characteristic of the species in those circumstances."
At para 46 he went onto say:
"Thirdly, "the lack of content" argument levelled against the Cummings interpretation cannot be pressed too far. The Cummings interpretation does not empty requirement (b) of all content. Some forms of accidental damage are instances where this requirement would operate. Take a large and heavy domestic animal such as a mature cow. There is a real risk that if a cow happens to stumble and fall on someone, any damage suffered will be severe. This would satisfy requirement (a). But a cows' dangerousness in this regard may not fall within requirement (b). This dangerousness is due to a characteristic normally found in all cows at all times. The dangerousness results from their very size and weight. It is not normally due to a characteristic not normally found in cows "except at particular times or in particular circumstances."
At para 47 he further said:
"For these reasons I agree with the interpretation of section 2 (2) (b) adopted in Cummings v Granger [1977] QB 397 and Curtis v Betts [1990] 1 WLR 459 and by the Court of Appeal in the instant case. The fact that an animal's behaviour, although not normal behaviour generally for animals of that species, was nevertheless normal behaviour for the species in particular circumstances does not take the case outside section 2 (2) (b)."
- The exception in section 5, which is relevant to the circumstances of this case, is that a person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk.
In Freeman v Higher Park Farm [2009] EWCA Civ 1185 Etherton LJ said:
"The words of section 5 (2) are simple English, and must be given their ordinary meaning, and not be complicated by fine distinctions or by reference to the old common law doctrine of volenti: Cummings v Granger [1977] QB 397, at 408 (Ormrod LJ). What must be proved in order to show that somebody has voluntarily accepted the risk is that (1) they fully appreciated the risk, and (2) they exposed themselves to it: Cummings v Granger [1977] QB 397 at 410 (Bridge LJ)."
Facts
- The background to Mrs Bodey's involvement with Mrs Hall appears to have been their shared interest in horses. Pepper, the horse pulling the trap on the day of the accident had spent some time in Mrs Bodey's care before Mrs Hall acquired her. Mrs Bodey started riding out with Mrs Hall as groom in the pony and trap about two months before the accident in total on about 7 occasions.
- It was accepted by Mrs Bodey in evidence that she was an experienced horsewoman. She had been around horses since she was a teenager. She has been involved in the rehabilitation and welfare of horses including becoming a Field Officer for the Veteran Horse Society. At the time of the accident she was studying for an HND in Equine Studies with the aspiration of becoming a teacher. She had started her own rehabilitation yard in early 2005.
- However, Mrs Bodey said that she was a novice when it came to experience of driving or being a passenger in a pony and trap. Other than the times that she had driven with Mrs Hall she had very little experience of driving. She had watched her son's lessons when he was being taught to break in a Shetland pony for driving. She said that she may also have been a passenger in trap with Mrs Evans on about two occasions. She had chosen carriage driving as one of her options for her HND course but described herself as a beginner. She also said that she thought that driving was a safer way to enjoy going out in the countryside following the death of her husband. She said that with three children she did not want to take unnecessary risks particularly with a child with Asperger's Syndrome. She said that she was aware that horses can spook and bolt but did not think that a trap could be turned over. She said "I honestly did not think that I could have been thrown out and that such an accident would happen." She said that she thought the risks involved related solely from climbing on and off the trap.
- Mrs Bodey described Mrs Hall as not being confident driving and requiring support when driving him out. Whilst this may or may not be correct, there is evidence from another witness, Mr Pawson, accepted by Mrs Bodey that Mrs Hall was a careful driver. Mrs Hall did not drive out unaccompanied. Mrs Bodey was required to get out of the trap at junctions to hold Pepper's head. Mrs Bodey says that she found it difficult to make her stand still patiently. She said that occasionally if passing road works or dustcarts it would be necessary for her to get out and stand with the horse or lead her past. The allegations of negligence pleaded against Mrs Hall were not pursued during the course of the trial. No criticism is now made of the way in which Mrs Hall drive the pony and trap.
- In Mrs Bodey's first witness statement she said that on the day of the accident she felt an increase in speed and held on tightly. She referred to Mrs Hall losing control of the trap and Mrs Bodey being thrown from it. She said that she had very little recollection of being taken to the hospital by ambulance. In her second witness statement she referred to feeling very uncomfortable at the speed they were travelling and remembering to hold on very tightly. She also remembered offering to get out and walk with the pony because of the way she was behaving. She described her as very agitated.
- In her third witness statement Mrs Bodey said "I am an experienced horsewoman and I have always regarded it as essential to wear a hat. It is inconceivable for me to have gone out without a hard hat." She says that she bought a replacement blue hat in January 2006 some two months after the accident which she would not have bought if she had not lost her hat during the accident. She has produced the receipt. She has also recently produced a letter from Dr Maloney dated 25 May 2011 which apologises for not mentioning that at the time of the injury she was wearing a hard hat. It also refers to the mark on her forehead but it does not state in terms that the mark was caused by the hard hat she was wearing at the time of the accident. Dr Maloney's letter also refers to medical records which have not been made available during the course of the trial.
- Mrs Hall is also an experienced horsewoman. She began carriage driving in about 1999 after she experienced back problems. She had approximately 30 carriage driving lessons with Mr Pawson between 1999 and 2001. She had to stop riding completely in 2005 because of osteoarthritis in her hip and spine. Mrs Hall acquired Pepper in 2004.
- On the day of the accident Mrs Hall was driving a Bennington Buccaneer competitor with a metal frame and wood cladding. She described the trap as very sturdy. Pepper had driven it on many occasions. She always drove the trap with one other person as Mr Pawson had taught her to do so for safety. Her recollection was that she had driven with Mrs Bodey as the groom between six and eight times before the accident. She had asked Mrs Bodey on previous occasions to get down from the trap at a T junction stand by the horse's head and check the traffic in both directions. Mrs Bodey had a Shetland pony which was being trained to drive.
- Mr Pawson, who has almost 30 years carriage driving experience, said in his witness statement that it is standard practice to drive with an active and knowledgeable groom. He described it as "active in the sense that the groom can get out of the carriage quickly if needed and knowledgeable in the sense that you have basic common sense." He described Mrs Hall as a very careful driver. There are photographs of the Shelton Farm, which he operates, showing drivers and grooms driving with and without riding hats.
- On the day of the accident Mrs Hall recollects that Mrs Bodey had forgotten to bring her riding hat with her. She had always worn a riding hat on previous occasions. Mrs Hall offered to postpone the trip but Mrs Bodey was content to go out without her hat. Mrs Hall always wore a riding hat herself as what she described as basic common sense when being involved with horses. On the drive Mrs Bodey turned from Tylers Lane left onto a track. As she turned left she "vividly remember that Pepper suddenly shot forward. As he shot forward he caused the trap to tilt, throwing both Mrs Bodey and myself from it." She said "I cannot recall whether the trap tilted or turned over completely although following the accident it was upright and I assume that it never turned over completely." Mrs Bodey was initially unconscious before coming round and being removed to hospital by ambulance. Mrs Hall had no idea what caused Pepper to shoot forward the way he did. There was nothing that she could have done to avoid the accident. He had never behaved in this manner before and what he did was completely unexpected.
- The expert evidence from Mr Lane, on behalf of Mrs Bodey, was that she was a reasonably competent and experienced horsewoman who was aware that all horses can be unpredictable on occasions and exhibit behaviour, for example, running away from a perceived threat whether or not the threat is identified by the handler. From the description given Mr Lane also considered that Mrs Hall was competent and experienced to be driving Pepper on the date of the accident. He had not seen evidence that Mrs Hall was lacking in confidence although he accepted that might be the case. His opinion was that if a horse pulling a trap runs away from a perceived threat there is a risk that the occupants may be thrown if the vehicle tilts or tips over. In those circumstances the driver may not be able to regain control of the horse quickly or at all. His opinion was that the reason Pepper shot forward will probably be never known other than the horse perceived a threat, either real or imaginary, which caused it to do so. There was no evidence that Pepper possessed characteristics not normally found in horses or that his behaviour fell outside the normal range of behaviour for horses.
- Whilst Mr Lane accepted in cross-examination that the majority of injuries from horses are minor, he considered that where an accident involved the tipping over of a trap there was always a chance of a head injury. He also produced photographs from the British Driving Society which show carriage drivers driving with and without riding hats. He said that hats were more likely to be worn in competitive driving but it was frequently the case that if driving for pleasure hats were not worn. He described it as a matter of personal preference. He agreed in cross-examination that wearing a hat was a sensible precaution because of an unpredictable risk of injury to the head.
Findings of Fact
- There is no dispute that Mrs Hall was the keeper of the horse, Pepper, and that the injury caused to Mrs Bodey was as a result of the horse being startled by an unknown stimulus as a consequence of which she shot forwards causing the trap to tilt or tip throwing Mrs Bodey and Mrs Hall out of the trap onto the ground.
- I am satisfied that Mrs Bodey is an experienced horsewoman who at the time of the accident was familiar with the unpredictable behaviour of horses. She had been around horses for a large part of her life in significant roles including the setting up of a rehabilitation yard shortly before the accident. I am satisfied that she would have been aware that horses are capable of reacting in an unpredictable manner in response to an unknown stimulus. In paragraph 12 of her second statement she accepted: "I, of course, am aware that horses can spook and be startled so that they run off." I do not accept her evidence that she did not think that such an event would lead to a trap being turned over. In my view it is inconsistent with her level of experience and what she said in paragraph 3 of her third statement where she stated "I always wore a riding hard hat when either riding or involved in carriage driving. As I have stated before I am an experienced horsewoman and I have always regarded it as essential to wear a hat. It would have been inconceivable for me to have gone out without a hat." Her state of mind as to the risks involved was confirmed in her answers in cross-examination that she wore a hat because she did not want to put herself at risk around horses.
- Further I am satisfied that Mrs Bodey would have been aware that whilst driving the reaction of a horse is to move rapidly forwards or sideways away from a perceived threat or stimulus. The reaction of a horse in those circumstances would be the same whether it was being ridden or being driven harnessed to a pony and trap. Mrs Bodey had driven with Mrs Hall on between six and eight occasions over the preceding two months. Although, she had not driven a pony and trap herself she was familiar with what was involved having acted as groom on those occasions. She had had to dismount at road junctions and hold the horse steady. Albeit it is of lesser significance one of her children was also being taught how to drive a pony and trap. I am satisfied that she appreciated both the general risk of horses behaving unpredictably and the particular risk that a trap could tilt or tip causing her injury if a horse moved rapidly away from a perceived threat.
- While I am satisfied that Mrs Bodey was an honest and truthful witness trying to assist the court, I do not accept her evidence that she would not have gone out driving with Mrs Hall if she had appreciated that there was a risk of an injury from a horse shooting forwards when startled by an unknown stimulus. I have come to the conclusion that she has attempted to rationalise her actions in her own mind in the period of time that has elapsed since the accident occurred. I also do not accept that at the time she made the decision to go driving with Mrs Hall she had in mind that she was a single parent with responsibility for bringing up her children. Whilst she was clearly looking for another horse-related activity, I do not believe that the focus of her interest in driving was that it was less dangerous than horse-riding. Nor do I consider that her appreciation of risk was limited to the risks that she might run climbing on and off the trap as a groom. Even if I am wrong about the concern that she may have had for horse-riding (about which there was no other evidence) I am satisfied that she fully appreciated that there was a risk of the trap tilting or tipping causing her injury when she agreed to act as Mrs Hall's groom on the day of the accident. She would have acquired the requisite level of knowledge from her own wide experience of horses.
- Mr Lane confirmed that a moderately experienced horsewoman would have appreciated that there was a risk of physical injury resulting from the unpredictable actions of a horse pulling trap. Para 2.5 of his report stated: "the Claimant was a reasonably competent and experienced horsewoman such that she should have been aware that all horses can be unpredictable on occasions and such unpredictability can be exhibited by behaviour such as running away from a perceived threat, whether or not that perceived threat is identified by the handler." In reaching this decision I draw a clear distinction between those persons who have and those who do not have an extensive knowledge of horses. Mrs Bodey fell into the latter category.
- I accept Mrs Hall's evidence that Mrs Bodey arrived without a riding hat and was given the option of postponing the drive until she had one with her. On this issue Mrs Hall gave her evidence in an impressive and forthright way which I fully accept. It is supported by the ambulance record which marked that no helmet was worn next to a handwritten drawing of a horse with reins attached to the trap. It is relevant that Mrs Bodey's initial witness statements and, indeed the medical correspondence, indicate she had very little recollection of the accident itself and suffered from amnesia following being knocked unconscious. The pleaded case is that "due to the effect of the brain injury the claimant has no recollection of the accident." It is only in her final statement that she states that she was wearing a hat at the time of the accident. How it came about that Mrs Bodey purchased another hat I do not know but no evidence has been put before this court in the voluminous medical records made available that indicates she was wearing a hat at the time of the accident. The letter from Dr Maloney does not take matters much further particularly as the letter it is in response too has not been made available. I am satisfied that Mrs Bodey took an informed decision not to wear a riding hat on the day of the accident which she has now rationalised in her own mind as being out of character with her usual behaviour. Although, it is not relevant to these findings I do not accept that she offered to get out and walk just after the pony and trap turned onto the track.
Section 2 (2)
- As I have already said earlier in this judgment the scheme of the Act is to impose strict liability on the keeper of the animal except as otherwise provided for by the Act. It is common ground between the parties that section 2(1) of the Animals Act does not apply. The issue is whether the requirements of section 2(2) are satisfied in the circumstances of this case.
- Section 2 provides that "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". In my view the first part of section 2 is satisfied. There can be no doubt that the head injury Mrs Bodey sustained was caused as a result of being thrown out of the trap onto her head when the horse unexpectedly shot forwards tilting or tipping the trap over. The damage suffered by Mrs Bodey was caused by the actions of the horse. There is no dispute that at the relevant time Mrs Hall was the keeper of the animal.
- It is common ground that the first limb of section 2 (2) (a), namely which the animal, unless restrained, was likely to cause also does not apply in this case. The second limb is whether the damage is of a kind … which, if caused by the animal, was likely to be severe. In Mirvahedy Lord Scott of Foscote said at para 96 "the word "likely" should be given its natural meaning of to be "reasonably be expected to happen".
- Mr Westcott submitted that the severity of the damage in section 2 (2) (a) should be considered without reference to the circumstances of the accident. In my view this a wrong approach which would make nonsense of the scheme of strict liability contained in the Act. There is force in Mr Stead's submission that unless the circumstances of the accident are taken into account the second limb of (a) would rarely be satisfied.
- Whilst the applicability of section 2 (2) (a) was conceded in Mirvahedy, the other cases to which I have been referred have construed section 2 (2) (a) with reference to the circumstances of the accident.
In Cummings v Granger Lord Denning MR said at 404F: "Section 2 (2) (a): this animal was a dog of an Alsatian breed; if it did bite anyone, the damage was "likely to be severe"."
In Curtis v Betts [1989] 1 WLR 459 Slade LJ said at 463F-G: "Nevertheless, Lord Denning MR, with whose judgment Bridge LJ expressly agreed, himself adopted the simple approach to the construction of the second limb of requirement (a) which, with respect seems to me the right one. In the context of requirement (a), he did not find it necessary to consider whether the dog in question had characteristics not normal to Alsatians. He said at p. 404: "section 2 (2) (a): this animal was a dog of the Alsatian breed: if it did bite anyone, the damage was likely to be severe." So too in the present case. Max was a dog of the bull mastiff breed. If he did bite anyone, the damage was likely to be severer. For this simple reason, the judge was, in my judgment, right to hold that requirement (a) was satisfied."
In Smith v Ainger (16 May 1990) Neill LJ at page 7 para (7) when considering section 2 (2) (a) said "it also seems to clear that the likelihood of damage or of it being severe has to be considered in the circumstances of the particular case."
In Welsh v Stokes [2008] 1WLR 1224 Dyson LJ at 1237 at para 40 when considering the link between section 2 (2) (a) and (b) said: "In my view the link between the likelihood of severe damage and the characteristic found by the judge was obvious. If a horse rears in the particular circumstances and the rider falls from the horse, she is likely to suffer from severe damage."
In Freeman v Higher Park Farm [31 October 2008] Etherton LJ said at para 34:"the evidence was that, if physical injury was caused by Patty, it would have been caused when she bucked when beginning to canter. There was no evidence of the likelihood of physical injury at any other time or in any other circumstances. It is obvious that, if a horse bucks on beginning to canter so that the rider falls off, it is reasonably to be expected that severe injury will result. In Welsh v Stokes [2008] 1WLR 1224 Dyson LJ, with whom the other members of the Court of Appeal agreed, regarded this as self-evident in the case of a rider falling from a horse who rears. I see no reason why the same approach should not be appropriate in the case of a rider falling from a bucking horse about to canter."
- The damage referred to is the injury that Mrs Bodey sustained to her head when she was thrown out of the trap. In my view the injury was likely to be severe where Mrs Bodey was thrown from the trap in circumstances where the horse had shot forwards unexpectedly as a result of an unknown stimulus. If a person falls from or out of a moving trap there is a risk that person will be severely injured. I do not consider that it is sufficient to look at the horse and ask the question whether the horse itself was likely to cause severe personal injury. I am satisfied that it is necessary to look at the particular circumstances to answer the question posed by section 2 (2) (a).
- The provisions of section 2 (2) (a) should be read with (b). It is common ground that the issue in this case is whether the likelihood of the damage or of its being severe was due to characteristics of the animal which … are not normally so found except at particular times or in particular circumstances. Mr Westcott submitted that the reaction of the horse to an unknown stimulus could not be described properly as a characteristic. He sought to distinguish between latent characteristics in a horse of bucking or rearing from a startled horse which only manifested its reaction of running away in response to a stimulus. Mr Stead submitted that the reaction of the startled horse was the manifestation of the characteristic to run away when it perceived a threat.
- In my view the reaction of the horse, in this case to an unknown stimulus causing her to shoot forward unexpectedly, whilst being driven by Mrs Hall, is similar to that of the horses that escaped from the field in Mirvahedy.
As Lord Nicholls said at 502 paras 2 and 3:
"2 …On the night of the accident all three horses stampeded out of a corner of their field. They pushed over an electric fence and a surrounding wooden fence, and then trampled through a strip of tall bracken and vegetation. Something seems to have frightened them very badly, but nobody knows what it was. The horses fled 300 yards up a track and then for a distance of almost a mile along a minor road before reaching the busy A380 road.
"3. Such behaviour is usual in horses when sufficiently alarmed by a threat. They attempt to flee, ignoring obstacles in their way, and are apt to continue in their flight a considerable distance, even beyond the point when the perceived threat was detectable."
At page 511 para 48 Lord Nicholls said:
"48. I also agree with the decision of the Court of Appeal on the facts in the present case. Horses are large and heavy animals. But it was not this innate physical characteristic of the defendants' horses which caused the road accident. The horses escaped because they were terrified. They were still not behaving ordinarily when they careered over the main road, crashing into vehicles rather than the other way about. Hale LJ concluded that it was precisely because they were behaving in this unusual way caused by their panic that the road accident took place: see [2002] 2 WLR 566, 571. That conclusion, on the evidence, seems to me irrefutable and to be fatal to the case of Dr and Mrs Henley. I would dismiss this appeal."
As Lord Walker said at 533 para 138:
"138. After these general comments I come to the particular linguistic difficulties presented by section 2(2). One is the meaning of the important term "characteristics" used in paragraphs (b) and (c) of section 2(2), but not defined in the Act. The context makes clear that the expression cannot mean something buried in an animal's psyche (as Devlin J said in Behrens at page 18, it is not practical to introduce conceptions of mens rea and malevolence in relation to animals). It must refer to character or disposition as evinced by overt behaviour-for instance, a dog which had the habit of attacking people who were carrying bags (Kite v Napp, Times Newspaper 1 June 1982). The distinction between "permanent" and "temporary" characteristics drawn by Stuart-Smith LJ in Curtis v Betts [1990] 1 WLR 459, 469, is useful but must be treated with some caution: all dangerous characteristics are likely to be more or less permanent but they may show themselves either frequently and randomly (as with the unreliable horse in Wallace v Newton [1982] 1 WLR 375), or under a stimulus peculiar to the particular animal (such as bag-carrying in Kite v Napp),or under some internal or external stimulus (such as the animal's hormones or a perceived challenge to its territory) which can be expected to produce similar behaviour in most animals of its species."
- Indeed, in the earlier case of Cummings v Granger Bridge LJ put the proposition simply when he said at 409 B to E:
"Indeed, the only evidence tending to show that the dog had a dangerous propensity or characteristic was the fact that it bit the plaintiff. That fact interpreted in the light of the evidence of the expert witness who was called on the defendant's behalf certainly did show that this Alsatian had, as any Alsation would have, a propensity to bite human beings in particular circumstances, namely, being an untrained guard dog, left to roam at large at night in the defendant's scrapyard, if confronted with an intruder in the sort of circumstances described by the plaintiff, albeit not accurately described as to the location on the evidence, it was to be expected that this Alsatian or any other Alsatian in like circumstances would attack. That view of the evidence was sufficient on the proper construction of section 2 (2) (b) of the animals act 1971 to establish the requirement which the paragraph imposes, namely, that the likelihood of damage which the plaintiff suffered was due to the characteristics of the Alsatian not normally found in Alsatians except in particular circumstances."
- The conclusion I have reached is that a predisposition of a horse to behave unpredictably by running away when confronted by an unknown stimulus can properly be identified as a characteristic. I do not see the distinction that Mr Westcott sought to draw between cases involving horses that buck or rear and the present case. The manifestation of the characteristic is to shoot forwards uncontrollably. The stimulus caused the horse to be frightened but the characteristic is that to be found in horses that when frightened they will shoot forwards at speed in an uncontrolled manner.
- In my view, the circumstances of this case fall squarely within section 2 (2) (a) and (b). The horse's behaviour in becoming startled by a stimulus of an unknown cause was not normal behaviour generally for animals of that species but it was normal behaviour in the particular circumstances where there was an unknown stimulus. It could not be said to be comparable with the analogy referred to by Lord Nicholls in Mirvahedy of the natural state, for example, of a large and heavy cow, or indeed another animal, where he did considered that a cow's dangerousness in this regard may not fall within section 2 (2) (b). As I have previously said it is accepted by the parties that if section 2 (2) (a) and (b) apply then (c) will apply in this case.
Section 5 (2)
- For the reasons set out in paragraphs 23 to 27 above I am satisfied that when Mrs Bodey accepted the invitation to travel as a groom she did so accepting full responsibility for her exposure to what took place. As I have said she was an experienced horsewoman who had been driving with Mrs Hall on between six and eight previous occasions. She knew the horse involved. I have already found that she fully appreciated that there was a risk of injury from the trap tilting or tipping when she agreed to act as Mrs Hall's groom on the day of the accident. When she took the decision to act as Mrs Hall's groom without a riding hat she did so from the perspective of an experienced horsewoman.
- In Cummings v Granger Ormrod LJ observed at page 407G to H:
"I would like to read these words in their ordinary English meaning and not to complicate the question too much with the old, long history of the doctrine of volenti. That doctrine was developed in quite different conditions. It has nothing to do with such strict liability; and I would not, for my part, like to see that defence whittled down by too such fine distinctions as to what 'voluntarily accepted the risk' means. They are, to my mind, fairly simple English words and should in this context be treated as such. In this case I do not think it is open to any doubt whatever on the plaintiff's evidence that, assuming she did go into this yard, she accepted the risk."
- In my view the facts of this case are distinguishable from those in Flack v Hudson [2001] QB 698 where at first instance and in the Court of Appeal the exception based on the voluntary acceptance of risk failed. In that case the trial judge found that the rider of the horse did not know of any propensity of the horse to become frightened by the presence of agricultural machinery. He found that as the mother of young children she would not have ridden the horse if she had been informed of the specific risk. Having heard Mrs Bodey give evidence I have concluded that was not the situation in this case but something she has rationalised in her own mind since the accident.
- There was no specific risk attached to this particular horse of which Mrs Bodey should have been made aware and was not made aware. Indeed, she had previously had care of the horse. The knowledge that I have found that she had of the risk that a trap could tilt or tip causing her injury whilst being driven through the unpredictable behaviour of the horse came from her extensive experience as a horsewoman. I do not consider that the risk was of significantly different character from that which may have occurred had she been riding. The reaction of a frightened horse would have been likely to have been the same whether the horse had been ridden or driven. It was a normal characteristic of a horse to a perceived threat. I do not consider that her failure to wear a riding hat on this occasion assists her case. I am satisfied that Mrs Bodey fully appreciated the risk that she was exposed to whilst being driven by Mrs Hall in the pony and trap on the day of the accident.
Contributory Negligence
- If I am wrong that the statutory exception applies in this case, I am not satisfied that Mrs Bodey's failure to wear a riding hat contributed to the cause of the accident. Whilst, as Mr Lane agreed in cross-examination, it may be prudent for drivers and grooms of pony and traps to wear riding hats it is clearly not habitual that they do. From the photographs that have been produced in evidence there are clearly different schools of thought as to whether riding hats should be worn whilst carriage driving. In some pictures drivers and grooms are to be seen wearing riding hats or other head apparel in other pictures no apparel on their heads.
- Mrs Hall told the Court that she always wore a riding hat whilst driving. I have accepted Mrs Hall's evidence that she offered to postpone the journey because Mrs Bodey had forgotten her hat and that Mrs Bodey was fully prepared to continue without wearing riding hat. However, Mr Lane accepted that it was largely a matter of personal choice as to whether riding hats were worn whilst driving. He said that hats were worn more frequently in competitive driving. Moreover, no rules or guidance for carriage driving have been produced which recommends that hats are worn. In my view it would be a step too far for me to conclude on the evidence available in this case that Mrs Bodey's failure to wear a hat was contributorily negligent. I should add that in the absence of medical evidence I was asked not to rule upon the exact percentage of contributory negligence at this stage.
- At the conclusion of the trial I indicated that it was not necessary for counsel to attend the handing down of this judgment unless it was not possible for them to agree the question of costs. Subsequently, the parties have submitted an agreed order which I approve. I am grateful for the assistance of counsel and the detailed submissions that were provided in this case which I have carefully considered whether I have specifically referred to them or not in this judgment.
