Clark v Bowlt

On 28 October 2001 the respondent, Mr Clark, was driving his car along the A196 when he came into collision with a horse, ridden by the appellant, Mrs Bowlt. Mr Clark sustained minor whiplash injuries and some damage to his car. Mrs Bowlt sustained somewhat more serious injuries. Mr Clark sued Mrs Bowlt in negligence and under section 2 of the Animals Act 1971. Mrs Bowlt counterclaimed, alleging that it was Mr Clark who had been negligent.

On 16 November 2005 His Honour Judge Walton, sitting in the Newcastle County Court, held that neither party had been negligent but that Mr Clark's claim under section 2 succeeded. He awarded damages which totalled a little over £8,000. Mrs Bowlt now appeals against that judgment with permission granted by Tuckey LJ, who remarked that the case raised points of general importance.

No challenge is made of the facts found by the judge. They can be summarised quite shortly. On 28 October 2001 Mr Clark was driving westward between Guide Post and Morpeth in Northumberland. He slowed down to about 35mph because he was approaching a junction. He then saw, about 50 yards ahead, two horses being ridden on the narrow grass verge on his near side, proceeding in the same direction that he was. One was a horse called Chance, being ridden by Mrs Bowlt. He slowed further until his speed had been reduced to 15mph or less. The horses showed no sign of panic, but as he was about to pass Chance, the horse moved into the road in a movement that could not be controlled by Mrs Bowlt and hit the front nearside of the car.

The relevant provisions of the Animals Act provide as follows:

Section 2 of the Animals Act ("section 2") has given rise to difficulties of interpretation. These were largely resolved by the decision of the House of Lords in Mirvahedy. That case also involved a collision between a horse and a car. The defendants were the owners of a horse, which they kept with two other horses in a field. Something badly frightened the horses, although it was never discovered what this was. The horses pushed over an electric fence and a wooden fence and stampeded along a minor road for about a mile before reaching a busy road, where one collided with a car driven by the claimant, causing him serious injuries. The defendants had not been negligent. The issue was whether they were under strict liability for the claimant's injuries pursuant to the provisions of section 2.

The issue turned on the true interpretation of section 2(b). Lord Nicholls of Birkenhead remarked that it was accepted that requirement (a) was satisfied and that the judge's finding that requirement (c) was satisfied was not challenged.

Section 2(b) contains an ambiguity. Its first meaning treats the provision as describing two different categories of damage so that, subject to the other requirements of the section, liability will attach (i) in respect of damage which was likely, or was likely to be severe, because of characteristics not usually found in animals of the same species, and (ii) in respect of damage which, while not likely, or likely to be severe, because of the characteristics of the animals of the same species in normal circumstances was likely, or likely to be severe, because of characteristics of animals of the same species at a particular time or in particular circumstances.

The alternative to the first meaning treats section 2(b) as describing a single category of damage, namely damage which was likely, or likely to be severe, because of characteristics not normally found in animals of the same species even if they were found in such animals at particular times or in particular circumstances.

Three members of the House of Lords held that section 2(b) had the former meaning; two that it had the latter meaning.

The judge attempted to apply the decision in Mirvahedy to the facts of this case in the following passages of his judgment:

I am afraid that in this rather difficult area of the law the judge has got into a muddle. The first limb of section 2(a) required the judge to consider whether the damage caused by Chance was damage which Chance, unless restrained, was likely to cause. The judge did not address that question. The judge held that the alternative limb of section 2(a) was satisfied, namely that if Chance caused damage it was likely to be severe. He concluded that this requirement was satisfied because the horse was a heavy animal, weighing 600 lbs. I would not quarrel with this conclusion. Indeed, it echoed the reasoning of Lord Nicholls in paragraph 46 of his opinion in Mirvahedy:

But Lord Nicholls went on to observe:

Instead of asking the right question the judge identified as the relevant characteristic the propensity of a horse "in particular times and in particular circumstances" to "assert an inclination to move otherwise than as directed". There are the following difficulties with the judge's conclusion that this equine propensity satisfied the requirements of (b):

I doubt whether a propensity occasionally to move otherwise than as directed can be described as a characteristic of an animal.

If such a propensity can be described as a characteristic, then I question the judge's assertion that it is one that is not normally found in horses "except at particular times and in particular circumstances". The judge failed to identify either the particular times or the particular circumstances when this characteristic manifested itself. Indeed in saying that this was a characteristic of horses generally the judge came close to accepting that the propensity was a normal characteristic of a horse, not one that only arose at a particular time or in particular circumstances.

The judge failed to recognise that the characteristic that he was considering was one relevant to the first limb of requirement (a). It was relevant to the likelihood of Chance causing the damage that had occurred. It only became relevant to consider this characteristic if the judge had first given an affirmative answer to the question posed by the first limb of (a), namely: was the damage which Chance caused damage of a kind which Chance, unless restrained, was likely to cause? As I have said, the judge never addressed that question. It seems to me that it is necessary to do so.

The keeper of a domestic animal can only be liable under the first limb of section 2(a) if it has caused damage in circumstances where, unless tethered, it was likely to cause that damage. Where it is a characteristic of an animal only to cause damage at a particular time or in particular circumstances, the animal, if normal, will not have been likely to cause damage save at that particular time or in those particular circumstances. A horse is liable to cause damage of the kind caused by Chance if given a severe fright. Chance was not, however, given such a fright. Can it be said, nonetheless, that Chance was likely to cause the damage which she caused by moving into collision with Mr Clark's car? On the judge's findings of fact, it seems to me that the answer is plainly "No".

The judge, rightly in my view, described the action of Chance as "an uncontrolled movement of the horse that continued until the horse and car came into contact". He said that it would be artificial to break the sequence of movements down to any greater extent given that all of this was happening in a very short space of time: see paragraphs 16 and 26 of his judgment. The evidence suggests that this was an untoward and unlikely mishap. The judge found that horses in general, and Chance in particular, generally follow the direction of their rider. That surely was what was likely to happen on this occasion.

The judge made the following findings about Mr Clark's behaviour:

In summary, on the facts of this case Mr Clark failed to establish that the linked requirements of either limb of section 2(a) and section 2(b) were satisfied. The accident that occurred was an unlikely mischance for which no one was to blame and which attracted no liability under the provisions of section 2 of the Animals Act 1971. For these reasons I would allow this appeal.

LORD JUSTICE BUXTON: I agree.

LORD JUSTICE SEDLEY: As the Lord Chief Justice has shown, the favourable finding that it was the horse's weight which brought the case within section 2(2)(a) is the respondent's undoing under section 2(2)(b).

However, I do not think that the result could have been any different if the judge's starting point had been that the damage was of a kind which all horses, however equable and well governed, are capable of causing.

The difficulty faced by the respondent upon that premise is that if it generates liability under section 2(2) in this case, there will be few, if any, cases of damage done by a domesticated animal which do not render the keeper liable -- the very reverse of the situation which the 1971 Act was designed to bring about.

The Act was passed, as section 1(1)(a) recounts, to replace the over-complex common law rules which imposed strict liability for harm done by reason of a domestic animal's known or knowable propensities with the apparently clear and simple formula in section 2(2). Like many such lamps its flame has since flickered in the wind of reality.

Mr McCormick for the respondent candidly accepts that his argument would mean that there were few if any cases of aberrant behaviour by a domesticated animal which did not fix the keeper with liability. Lord Nicholls in paragraph 46 of his speech in Mirvahedy, which my Lord has quoted, recognised this danger and gave an example of a case which might fall outside the Act, namely a cow which, if it stumbled, would be likely to hurt someone because of its weight, but whose weight was a normal characteristic of the species. That is not far from this case, and in order to hold the judgment below, Mr McCormick recognises that he would have to close even this escape.

In other words, as it seems to me, the respondent's case attempts to prove too much. Section 2(2) is not intended to render the keepers of domesticated animals routinely liable for damage which results from characteristics common to the species. It requires something particular, and there was nothing of the specified kind to render the keeper liable here.

I, too, would therefore allow this appeal.