There is a new glimmer of hope for insurers as a result of a recent appeal case involving the Animals Act 1971.
The complexities of S2(2) of the Animals Act 1971, which deals with liability for damage done by non-dangerous animals, is notorious. If all 3 parts of S2(2) are satisfied then strict liability will apply to the keeper of the animal. The 3 limbs are:
(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.
In the recent case of Lynch v Ed Walker Racing Ltd 2017 at first instance the Judge dismissed the claimant’s claim.
The claimant was a stable boy employed by the defendant. He was riding a two year old colt with a number of other race horses along a track beside a road. A number of the horses were spooked causing them to whip round. The claimant’s horse whipped to the left and then to the right losing its footing and falling over causing the claimant to fall and hit his head.
A claim was brought on the basis of S2(2). Whilst it was accepted that S2(2)(b) and S2(2)(c) were satisfied, S2(2)(a) was disputed.
There are 2 separate limbs within S2(2)(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.
The trial judge found that neither part of S2(2)(a) was satisfied given that witness evidence had been heard which stated that injuries were rare as a result of a horse whipping around and that people rarely fell off as a result of a horse whipping round. In consequence it was held that the first part of section S2(2)(a) was not satisfied as it was unlikely that an injury would be caused by a horse whipping round. Further, that the second part of the limb was also not satisfied as, even if injury was caused in such a situation, it was unlikely to be severe
The appeal was made on the basis that S2(2)(a) was satisfied as 1) it was obvious that if a two year old racehorse was spooked and whipped round some form of personal injury might occur and 2) if personal injury was caused in those circumstances it might well be severe.
The appeal was dismissed and it was held that the facts justified the conclusion reached.
Comment was made that the first limb ‘likelihood of injury’ and the second limb ‘severity of injury’ overlapped. The fact that a rider would usually be able to step off the horse when it whipped round and fell over led to the conclusion it was unlikely that a rider would suffer serious harm.
Whilst animal cases are usually difficult to defend and are very fact sensitive, it should be borne in mind that, as shown in this case, the judiciary are becoming more open to consider different approaches and arguments which may support the defence of such claims in certain circumstances.