Hole v Ross-Skinner

1. LORD JUSTICE MUMMERY: This is an appeal by Mr Harry Ross-Skinner against the order of HHJ Thompson QC sitting in the Weymouth County Court on 18th July 2002. On the issue of liability, which was before the judge, HHJ Thompson found for the claimant, Mr Brian Hole, who had brought proceedings against Mr Ross-Skinner following personal injuries sustained in a road traffic accident on 8th December 1997. The accident occurred at about 5.15am. Mr Hole, who was then aged 28, was driving his Vauxhall Cavalier car east along the A352 duel carriageway between Warmwell and Owermoigne in Dorset. Mr Hole collided with at least one of a number of loose horses on his side of the dual carriageway heading west. The car bonnet and roof were crushed. As the roof caved in, Mr Hole's head was forced through the sun roof. Through no fault of his own he suffered severe personal injuries.

2. Mr Ross-Skinner is the owner of Warmwell House and surrounding land, including two particular fields which feature prominently in this case. The fields are referred to in the judgment and in the evidence by these numbers: field 4064, which is also referred to, and I shall refer to, as "Middle Park"; and field 2153, which is referred to, and I shall refer to, as "Top Park".

3. Also on Mr Ross-Skinner's estate is the Warmwell Stud. That is run by his wife in partnership with Mrs Helen Nelmes. The activities of the Stud, which are relevant to this litigation, are the taking in of horses owned by third parties. The horses are cared for and kept there, some on a do-it-yourself basis.

4. These proceedings were issued on 5th December 2000. Mr Hole alleged that Mr Ross-Skinner was liable for the personal injuries he had suffered because the horses on the road, at least one of which he had collided with, had been kept by Mr Ross-Skinner on his land. Two causes of action were pleaded. First, Mr Hole alleged negligence on the part of Mr Ross-Skinner, contending that he had failed to establish and maintain adequate or stock-proof fencing, hedging and gates around the perimeters of his fields, in particular around his fields close to the A352 road.

5. The second cause of action pleaded by Mr Hole was under section 2(2) of the Animals Act 1971, under which liability for damage done by animals is strict and not dependent on proof of fault. It was alleged that Mr Ross-Skinner was liable because the damage which Mr Hole had suffered to his person and to his car was of a kind which an unrestrained horse was likely to cause, and that the likelihood of the damage, or of its being severe, was due to the characteristics of the horse involved.

6. The trial judge found that Mr Ross-Skinner was liable, both on the grounds of negligence and under the provisions of section 2(2) of the Animals Act. Damages were ordered to be assessed at a separate hearing. The judge granted Mr Ross-Skinner permission to appeal. The permission was, however, limited to the issue of section 2(2) and was conditional on the House of Lords reversing the recent decision of the Court of Appeal in Mirvahedy v Henley . The Court of Appeal decision was reported at [2002] 2 WLR 566.

7. An application was made to the Court of Appeal for permission to appeal. Mance LJ granted permission on the issue of common law negligence, but he refused permission on the specific issue of whether Mr Ross-Skinner was a "keeper" within section 2(2). The strict liability point has now disappeared from the appeal. This is because the House of Lords have affirmed the decision of the Court of Appeal. The House of Lords decision is now reported in [2003] 2 WLR 882. By a majority of three to two the House of Lords held, in dismissing the appeal, that under section 2(2)(b) of the 1971 Act the keeper of a non-dangerous animal was strictly liable for damage or injury caused by it while it was behaving in a way that, although not normal for animals of that species, was nevertheless normal behaviour for the species in the particular circumstances, such as a horse bolting when sufficiently alarmed. Since the accident to the claimant in that case had been caused by the defendant's horses behaving in an unusual way caused by their panic, they were liable to him.

8. The only issue left in the appeal is the negligence point. Before turning to the findings of the judge on that point and to the evidence and the arguments, I should explain the representation of the parties. Only the appellant was represented at the hearing of the appeal. He was very ably represented by Mr Christopher Russell. He has only recently come into the case. He was not counsel at the trial. The respondent, Mr Hole, has withdrawn his opposition to the appeal. The other interested parties are, the court has been informed, content that the appeal should proceed without any representations from them. They are prepared to abide by the outcome of the appeal.

9. This position is explained in an exchange of letters between the solicitors acting for Mr Ross-Skinner and Mr Hole. The position, under the agreement reached in correspondence, is that Mr Hole's damages, which have not yet been assessed, will be met on a full liability basis, together with the costs of the main action. That proposal was accepted by Mr Hole's solicitors on the basis that they would not oppose the appeal against the common law negligence finding of the judge. The reason why Mr Ross-Skinner wishes to continue with the appeal, even though strict liability has been accepted by him, is that he intends to pursue claims for contribution against the insurers of the owners of the horse involved in the collision with Mr Hole. The horse, which has the stable name of Nicky and was identified by the judge as the horse involved in the accident, is not owned by Mr Ross-Skinner, or by the partnership of the Warmwell Stud. It is owned by a Mr and Mrs Woollaston.

10. This is not an academic appeal. There is a real point possibly to be gained by Mr Ross-Skinner in succeeding on the appeal. In the absence of representation from Mr Hole, or any other interested parties, an additional burden has fallen on Mr Christopher Russell to assist the court in resolving this single ground of appeal. He has discharged this function in a creditworthy way by referring the court to the evidence in detail in the form of witness statements and the transcript of relevant parts of the cross-examination. He has taken the court, practically paragraph by paragraph, through the skeleton argument prepared by counsel, Mr Tyson, on behalf of Mr Hole for use on this appeal.

11. I turn now to the negligence issue. I refer to the judgment of the trial judge. The judge concluded, after stating his findings of fact, as follows:

"48. I think in these circumstances the duty of care was not discharged by Mr Ross-Skinner and I think that the Claimant is entitled to succeed on the issue of common law negligence."

12. How did the judge arrive at that conclusion? The findings of fact by the judge need to be explained by reference to the layout of the relevant fields. The position is this. On the night in question the horses had been put in the field called Middle Park. In the corner of Middle Park, adjoining the field Top Park, there is a chalk pit, which is currently used for making silage. There is a barbed wire fence between Middle Park and Top Park. Middle Park does not adjoin any minor or major road. The only way in which animals in Middle Park could have got on to the road was through an adjoining field. The field adjoining immediately to the east is Top Park. From Top Park an aluminium gate opens on to a minor road, the B3390, called Warmwell Road or Warmwell Lane. That road, or lane, leads up from the roundabout at Warmwell Cross, where the dual carriageway begins, up to the village of Warmwell.

13. The position on the evidence given by Mrs Nelmes and by Mr Ross-Skinner was that on the night in question the horses were put in Middle Park. The fence around Middle Park, separating it from Top Park, was stock-proof. When the animals were left in Middle Park for the night the gate from Top Park on to Warmwell Road was closed.

14. On the following morning the situation was different in two respects. Although the horses, who had been left in Middle Park were back in the field, the barbed wire fence had been cut in the vicinity of the chalk pit, and the gate leading from Top Park to Warmwell Road was open. It was found that at least 11 of the 15 or so horses, including Nicky, had white feet, indicating that they had walked at some time in the night through the chalk pit.

15. The explanation offered in evidence was that there had been trouble in the past with deer poachers going on to the land of Mr Ross-Skinner without permission in four wheel drive vehicles, cutting fences and opening gates to do so. So the theory advanced in defence to the claim for common law negligence was this: a number of horses in Middle Park had got out of that field through the wire fence at the point where it had been cut, they had got into Top Park, and were able to get out of Top Park through the open gate, and down Warmwell Road on to the A352 where the accident occurred.

16. The judge did not make a finding on the route which the horses had taken. I should refer to what the judge did say. The judge started to deal with the claim for negligence at paragraph 37, where he said:

"I turn now to the evidence in relation to the horses and whether or not the horses generally which were seen in this vicinity by Mr Hole and other witnesses came from the stud on the Defendant's land."

17. He described what I have already summarised about the field in which the horses were kept overnight, and where they were eventually found again in the morning after the accident. That is in Middle Park. The judge found that he had no doubt that the barbed wire around the Middle Park field had been cut, either during the course of that night or at some time earlier. In any event the wire had certainly been cut. He said it was clear that, of the 13 mares in the field, 11 had traces of chalk or white on their hooves, effectively finishing up with white socks showing that they had been in the chalk pit area adjacent to Middle Park. He said it was also clear that, if the horses had got out through the chalk pit, it would have been open to them to have gone to what was described as Top Park, the principal field abutting the minor road B3390, which leads up to Warmwell, and down to the A352. He mentioned the gate leading out from that field on to the minor road. He said that there was compelling evidence that some of those horses, 11, including Nicky, had certainly been in the chalk pit section and that is how they had got their white socks. He then said this:

"I think the indications are quite clearly, and on the balance of probabilities, that these were the horses which were out on the highway, and the ones that were witnessed by various people, and also these were the horses which came charging towards Mr Hole as he drove along the A352."

18. He said in paragraph 38 that the clear evidence was that these were the horses that had escaped from Mr Ross-Skinner's land, possibly through gates and fences that had been damaged by poachers, or gates which had been left open by walkers or whatever, but certainly these were the horses which had come from his land. There was nothing to indicate that there were horses coming from any other quarter.

19. In addressing the issue of negligence specifically, he said in paragraph 44 that there was clearly a duty of care on a person who has animals on his land to ensure that the animals are kept there in reasonable safety. The land owner in such circumstances has in my view a duty to take reasonable precautions in all the circumstances to ensure that the animals do not escape and foreseeably cause damage to other people.

20. The judge then set out the way in which the case was put against Mr Ross-Skinner in negligence. At paragraph 44 he said:

"It is said that the gates and fences on his land were not well maintained. Certainly the video and the photographs which I have been seen showed fences in somewhat poor condition, gates not properly secured and also what are described by some as Dorset fences, being ones which can easily be pushed by a horse. Others described them as Wiltshire gates, in other words, barbed wire gates which can be opened and closed, and not being properly secured."

21. The judge dealt with the expert evidence given on each side: Mrs Seabright on behalf of Mr Hole, and Mr Meade on behalf of Mr Ross-Skinner. Mr Ross-Skinner's expert, Mr Meade, accepted that the state of the fences and gates shown on the video and photographs were, to use the word Mr Meade used, "scruffy". It was quite clear, he said, that some of the gates and fences shown in the video left much to be desired. He said that it was also clear that Mr Ross-Skinner was having problems with people leaving gates open, partly attributable to walkers and ramblers, but also due to the activities of poachers on his land driving four wheel vehicles through gates to steal deer roaming on his land. The judge referred to a particular problem there had been in respect of a different gate in a different field, away from Top Park and Middle Park.

22. On the expert evidence, the judge found in favour of Mr Ross-Skinner on two points. The first allegation made on behalf of Mr Hole and his expert was that the gates should be double padlocked, and the gate leading from Top Park into Warmwell Lane was not double padlocked. The judge accepted the evidence of Mr Meade as preferable to that of Mrs Seabright. He said in paragraph 46:

"I do not think it is the normal practice for landowners to secure their land with double padlocking of gates. It is neither a normal practice nor do I think it is one which would be required, but I do think that the state of the gates and of the fences generally speaking did leave much to be desired."

23. The other point on which the judge found in favour of Mr Ross-Skinner was as to the height of the fences. Mrs Seabright had given evidence that a greater degree of security was needed for horses than for cattle. The judge concluded that the height of the fences would probably normally be adequate, but he went on to say this at paragraph 47:

"The problem was not the height of the fences which was found wanting, but rather the quality of them and the state which they were in."

24. Following the end of that paragraph the judge went immediately into the short paragraph I have already quoted, concluding that the duty of care had not been discharged in this case.

25. The submissions made by Mr Russell on those parts of the judgment referred to the oral evidence given to the judge, to the witness statements of Mr Ross-Skinner and Mrs Helen Nelmes and to the answers that they gave in cross-examination. Mr Russell demonstrated to my satisfaction that there was, in fact, no evidence in this case on which the judge could properly conclude that there had been negligence on the part of Mr Ross-Skinner causing the escape of the horses and the accident which followed.

26. I am satisfied on the evidence before the judge that on the night of the accident the horses were left secure in Middle Park. At some point in the night the barbed wire fence was cut. That gave the horses an opening into Top Park. The chalkiness of their feet is a probable indication that that was the route that the horses took to get out of Middle Park into Top Park. The evidence also demonstrates that, once they were in Top Park, they could get out of the field on to Warmwell Road via an open gate. The evidence was, just as the fence was uncut when the animals were put in Middle Park, the gate from Top Park to the road was closed that evening. It was, according to the evidence, found open the next morning.

27. In my view, the probabilities on this evidence are that a number of horses got out of Top Park on to the minor road. They found their way down to the dual carriageway of the A352. That is probably how the accident occurred. I am not able to see on this evidence how it can be said that Mr Ross-Skinner failed in his duty of care. He was not responsible for the cutting of the barbed wire fence between Middle Park and Top Park. Neither he nor anyone working for him was responsible for leaving open the gate, which gave the horses access from Top Park on to Warmwell Road. There was no evidence that the fences around Top Park abutting Warmwell Road or the A352 were otherwise insecure. It is far more probable from the evidence that we have, and which the judge had, that the animals left Top Park via the open gate. There was no evidence that Middle Park was otherwise insecure. It was the cutting of the barbed wire fence adjoining the chalk pit that gave the animals the opportunity to get out of Middle Park field. The probabilities are, then, that the horses escaped into the Warmwell Road and the A352 via the cut fence and the open gate from Top Park. This was not the result of negligence on the part of Mr Ross-Skinner. It is not possible to point to any reasonable precautions which he could have taken to prevent the animals from getting out and doing the damage that they did.

28. What the judge appears to have done is to reach the conclusion that he did in paragraph 48 of the judgment by simply relying on the evidence that there was (and this was accepted by Mr Ross-Skinner's own expert witness) general scruffiness of the gates and fences on his property. In my judgment, that is inadequate evidence to establish liability for negligence. What mattered was not the quality of the fences and gates generally on his property, but the state of the fences and gates on the fields in question, the fields in question being those where the horses are grazing or to which they had access. In relation to the two relevant fields, Middle Park and Top Park, the evidence is that they were secure. Middle Park was secure until the barbed wire fence was cut; Top Park was secure, but for the open gate for which Mr Ross-Skinner was not responsible.

29. As for the possibility that he should have foreseen from past experience the activities of poachers, and therefore taken additional precautions to ensure that the fence in Middle Park was more secure, and that the gate from Top Park to the road was more secure, it does not appear, either from the evidence or from the conclusions of the judge, that this demonstrated any breach of the duty of care on the part of Mr Ross-Skinner. As was said by Mr Russell in his submissions, even if Mr Ross-Skinner had taken the additional precaution of double padlocking the aluminium gate from Top Park to Warmwell Lane, that could not be relied upon to be an effective way of excluding the poachers. They could do with the fence of Top Park what they had done with the fence between Top Park and Middle Park, and simply cut their way in, if they could not get through the gate. Alternatively, with the four wheel drive vehicle, the tyres of which had been seen by Mrs Nelmes on the morning following the accident, they could have used the four wheel drive actually to remove the gate.

30. It also seems to me that the judge did not address at all the question of causation. Simply to say that Mr Ross-Skinner's fences and gates were in general scruffy and not of the quality they should have been or left much to be desired is not enough to make Mr Ross-Skinner liable by reason of negligence for the accident which happened to Mr Hole. It would have to have shown that his breach of duty of care, if there was one, was the effective cause of the escape of the animals leading to the accident. There is nothing in the evidence or in the findings of fact by the judge which would satisfy the required cause connection.

31. In those circumstances, the position is that, although Mr Ross-Skinner is liable strictly under section 2(2) of the Animals Act, and an agreement has been breached in relation to the satisfaction of that judgment, the judgment against him on the issue of common law negligence is not, in my view, supportable by the evidence before the judge. I would therefore allow this appeal.

32. LORD JUSTICE LAWS: I agree that this appeal should be allowed for all the reasons given by my Lord. I wish merely to emphasise my agreement with his view that the judge here made no finding, certainly no express finding, to the effect that any act or omission by the defendant, Mr Ross-Skinner, was a cause of the horses' escape, and thus the accident. Nor, on the facts which my Lord has recited, could the judge have properly done so. There was no proper basis here for concluding that Mr Ross-Skinner had failed to discharge his duty of care or that anything done by him caused this grave accident.

33. LADY JUSTICE ARDEN: I agree with both judgments.

ORDER: Appeal allowed. No order for costs.