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Animals Act: defendant not liable for facial injuries caused by horse

Spencer v Lea & Ors
Manchester County Court – Recorder Elleray QC
21 February 2017

Giles Kellner reports on the successful defence of an employers' liability claim brought by a groom who suffered facial injuries after being kicked by a horse. The case involved careful consideration of the strict liability principles under section 2 of the Animals Act 1971 and the circumstances in which horses can kick out. It also highlights the practical issues in bringing and defending this type of claim.

Background

The claimant was an experienced horse woman who worked as a groom for the defendant, a professional horseman who reared and sold horses at stables in Cheshire. In total, the claimant had been employed by the defendant for around eight months.

The claimant groomed several horses for the defendant, one of whom was "Jacko". 

One of the claimant's tasks was "picking out" from the horse's feet. On the defendant's evidence, each horse would require picking out at least 2 to 3 times a day. The purpose of picking out was to clean away any sand or debris and to keep the feet clean.

The task of picking out would involve attending to the horse alone whilst it was tethered to a tie ring located at the back of its stable. The horse would be facing the back wall.

On 10July 2013, the claimant alleged that as she was picking out Jacko's rear left hoof, without warning Jacko kicked out, causing serious dental and facial injuries. The claimant brought a claim under the Animals Act 1971 and in negligence.

The Animals Act 1971 creates strict liability for damage caused by animals in certain circumstances and the relevant provision is section 2:

(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

The claimant also made allegations in negligence, the main one being that the defendant was in breach of duty for:

  1. failing to provide a tie ring in an open space outside a stable for the purpose of grooming, on the basis that a horse would be more relaxed when away from a confined space; and

  2. failing to provide a second person to assist during the grooming process, as to do so would have assisted in calming the horse. 

Application of the Animals Act 1971

It was common ground that a horse is a 'non dangerous' animal and that s.2(1) did not apply. The court therefore needed to consider the three criteria in s.2(2).

It was also common ground that the damage caused by a horse kicking out was likely to be severe so that the second part of s.2(2)(a) was met. The areas of contention were interpretation of s.2(2)(b) and (c).

Section 2(2)(b) - characteristics found in particular circumstances

The disputed part of this section:

"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"

The pleaded case was that the 'particular circumstances' were when horses are “restrained and / or have a leg lifted and are startled or take fright at something.” At trial, this really translated into an allegation that horses kick out when startled.

The claimant asserted that she did not need to prove the cause of Jacko becoming startled or frightened, on the basis that such cause of being startled was unknown in what is seen as the leading case on horses under the Animals Act, Mirvahedy v Henley & Anor [2003] UKHL 16.

The defendant's position was that the issue for the court to address was whether the claimant could establish that horses as a species may kick out in the particular circumstances of both having their feet picked and being startled. The defendant's position was that there was no evidential basis in support of that case, whether in the form of expert or lay evidence.

The defendant submitted that the ‘times’ or ‘circumstances’ needed to be properly defined, relying on the case of Freeman v Higher Park Farm [2008] EWCA Civ 1185, which held that the words "at particular times or in particular circumstances" denote "times or circumstances which can be described and predicted". Further, in Freeman the court of Appeal emphasised the importance of adducing expert evidence to meet the requirements of the Act.

The defendant also referred to the unreported case of Smith v Harding (Manchester County Court, 26 November 2013) decided by Recorder David Allan QC. This case provided a useful illustration of the application of s.2(2) where a claimant sustained injury when a horse kicked out. In Smith the claimant was engaged in clipping a horse when she was kicked. The claimant called expert evidence to show that horses, as a species, when cornered and restrained and then exposed to pain, discomfort or fear from clipping would kick out. The kick was a response to the perceived threat posed by the clippers. Recorder Allan found that s.2(2) was satisfied, and he did so on the basis of the expert evidence that the horse kicking out was a normal reaction to the perceived threat from the clippers which was normal behaviour for horses in those particular circumstances. However, the claimant in Smith failed to establish liability because the judge found that the defendant had never known a horse to react in that way, and so the requirement under s.2(2)(c) was not met i.e. the requirement that those characteristics were known to that keeper.

In the present case, the claimant's witness evidence was that she did not understand what had caused the unusual reaction in Jacko, as she had dealt with him on a number of occasions and he had always been a very calm and quiet horse. She said that he was alerted by something which caused him to move his foot up towards his stomach leading him to kick her in the mouth. At trial, this was put to the judge on the basis that Jacko must have been startled; but this was simply the claimant's opinion, and she had no way of establishing what had caused the movement of the foot.

Recorder Elleray found that the claimant's case under s.2(2)(b) essentially amounted to a proposition that a startled horse can kick out. However, the claimant had not established that a horse in a normal stable when picked would become startled, which was the legal test to be applied. There was no cogent evidence that Jacko had been or must have been startled. There was no expert evidence before the court to establish that picking could cause an alarm or a threat and s.2(2)(b) was not made out.

Section 2(2)(c) – characteristics known to the keeper

Recorder Elleray found that despite the extensive equine experience of the defendant, and indeed his supporting lay witness who was also a stable owner, neither had known a horse to kick out during the picking process. The lay evidence from both parties was that Jacko was a calm horse who was very relaxed, and had never exhibited this behaviour previously. The judge found that the claimant had not made out that it was known to the defendant that horses had a characteristic of kicking out when being picked in a stable, and therefore s.2(2)(c) was not made out.

Negligence

The judge dismissed the allegations of negligence on the basis there was no breach of duty. It was accepted that it was industry practice to have the picking process carried out whilst horses were tethered within their own stables by a single groom without the assistance of a second employee. The claimant’s experience as a groom had been that picking was carried out alone. The evidence of the defendant's witnesses was that they had never known two persons to be engaged in such a process and it would be economically prohibitive. In the event of breach being established, causation would not have been made out because the failure to take the steps alleged to have constituted breach of duty might have increased the risk of injury, but there was no evidence that - on a balance of probabilities - they would have prevented the injury.

The claim was therefore dismissed in its entirety.

Comment

  • The claimant was significantly disadvantaged by the absence of expert evidence in support of her assertion that horses can become startled when picking out and consequently would kick out. The vast majority of the leading authorities on the Animals Act involved expert evidence and without it, it is difficult for a claimant to establish a breach of s.2(2)(b), i.e. the characteristics thatare not normally so found except at particular times or in particular circumstances. The court had refused the claimant permission to rely on expert evidence during case management and it is perhaps surprising that the claimant did not appeal that case management decision.

  • In the present case, the cause of the horse becoming startled was relevant because it went to the 'particular times and particular circumstances' under s.2(2)(b).

  • Liability under the Animals Act for non dangerous animals is not strict until a claimant makes out the requirements of s.2(2) (a),(b) and (c).

  • The defendant’s knowledge – or lack of knowledge – under s.2(2)(c) can in appropriate circumstances form the basis of a defence which is difficult for a claimant to challenge.

Contact

For further information please contact Giles Kellner, Director on 0151 907 3415 or at giles.kellner@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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