McKenny & Anor v Foster (t/a Foster Partnership)

On 27^th April 2002, at 9.25 in the evening, there was a tragic motor car accident on the A614 Driffield Bypass near Bridlington. A Vauxhall Vectra driven by the first claimant, Helen McKenny, collided with a cow which had escaped and strayed onto the road, upon which at the moment of collision it was quite stationary. Derek Shaw, Ms McKenny’s passenger and partner, was killed, as was the cow. Ms McKenny was injured. She and Derek Shaw’s estate bring this claim against the defendant farmers, whose cow it was.

At the time of the accident, it was dark. Ms McKenny was driving within the speed limit. A defence case that her negligence contributed to the accident was summarily rejected by HH Judge Cockroft, who heard and decided the claim in the Leeds County Court on 15^th May 2007.

The claimants for their part contended that the cow’s escape resulted from negligence of the defendants. This case also failed upon findings of fact which I shall summarise. There is no appeal against this part of the judge’s decision. The judge also rejected the claimants’ case that the defendants were strictly liable under section 2 of the Animals Act 1971. The claimants appeal against this part of the judge’s decision with the judge’s permission.

The cow’s escape was extraordinary.

Little Houndales Farm is to the north of the A614. A straight concrete farm lane leads from the highway to the farm buildings. At the highway end of this lane is a substantial, well built cattle grid some 12 feet in length measured along the line of the lane. There is no way for large animals around the side of the cattle grid.

The farm buildings are about 100 yards along the lane away from the highway. A cluster of buildings on the left hand side includes a substantial byre, in which the defendants keep cows and their calves over the winter. To the right of the lane is a bungalow, the home of Peter Foster, and Bungalow Field. To the left of the lane and partly surrounding the farm buildings is Front Field. At the south east corner of the farm buildings’ enclosure is a gate leading from Front Field onto the lane, which is opposite a gate leading from the lane into Bungalow Field. Bungalow Field is a properly enclosed and properly gated field entirely suitable for containing the defendants’ cows.

In April 2002, the defendants had 22 suckler cows on the farm. The unnamed cow that escaped was a Limousin cross bred for beef, not milk. During the winter of 2001/2 she had been in the byre with her third calf, which was 6 to 7 months old at the time of the accident. The cow was by then in calf again for the fourth time. She was known to be of good temperament. On the day of the accident, she had been brought out from her winter quarters and weaned from her calf, which remained in the byre. The cow was put into Bungalow Field, walking there around and along the perimeter of Front Field beside the farm buildings’ enclosure and across the lane through the two gates to which I have referred. With the cow in Bungalow Field were 9 other cows, one of which had also been weaned that morning, and a bull. All this was good livestock practice.

The judge said this in paragraph 16-19 of his judgment:

“It was common ground between the parties that when weaned a cow, to varying degrees, may demonstrate a maternal instinct. She may wish to rejoin her calf. When first enclosed in her summer field she may explore the perimeter looking for a means of escape. She may display agitation. Her calf on this occasion was near enough to be heard if calling out, and to be smelt.

Neither the crossbreed of this cow in general, nor this cow in particular, was known to experience an abnormal reaction upon weaning. She had twice previously been weaned of calves without any abnormal reaction or untoward event. She had certainly never escaped before.

On this occasion she walked to the boundaries of the field, finding no gaps or apparent means of escape. There may have been some calling between mother and calf, although Peter Foster told me, “it was less than I expected”, but the mother settled down in placid company and showed no sign of distress or agitation. She was adequately supervised during the day by the Defendants.

The boundaries of Bungalow Field were the most secure of any field on the farm. It is unnecessary to describe their precise composition, or even the height of the mixture of hedges, fences, wiring, wall and gate, because it was ultimately conceded that all were beyond criticism.”

On the day of the accident, Peter Foster and his brother Mark were on the farm all day. The two cows who had been separated from their calves showed no signs of distress. For about three quarters of an hour before finishing work, Peter Foster used a hand mower to cut his lawn which was beside Bungalow Field. The cattle were moving round the field normally. When he came in at 8.30 p.m. the animals were calm. The calves were not calling out.

Notwithstanding all this, there was compelling evidence that the cow escaped from Bungalow Field by jumping or clambering over the six barred livestock gate, through which she had earlier entered the field, although the gate’s construction and dimensions were entirely beyond criticism. After the accident, the gate was seen to be damaged and sagging and there was animal hair on the top bar of the gate and on the ground at the lane side of the gate. All other perimeter fences of Bungalow field were secure and in order. As the judge said in paragraphs 38 and 39 of his judgment:

“No criticism was made nor could have been made of the gate, and yet the overwhelming probability is that within an hour of Peter Foster finishing work the cow must have jumped or scrambled over it. There was no other means of escape from Bungalow Field.

Nothing like that had ever happened before at the Defendants’ farm, neither to this recently weaned cow in calf, nor to any other recently weaned Limousin cross, nor to any other recently weaned cow, nor to any cow at any stage in its lifecycle, nor to any other animal.”

Beyond this fact that the cow must have somehow climbed over the gate, and the fact that at 9.25 p.m. she was stationary on the highway where the accident happened 200 yards to the west of the point where the end of the farm lane is close to the highway, there was no relevant direct evidence. But it was the general consensus of the evidence, especially expert veterinary evidence, that she must have gone down the farm lane towards the highway and jumped over the 12 foot cattle grid – this despite the fact that none of the experts had ever known or heard of a cow crossing a cattle grid. The judge accepted evidence that she did not squeeze through the hedge side of the grid, nor blunder over the grid – if she had, she would have sustained injury and left hair or skin or tissue on the bars of the grid. So, said the judge, “in this realm of wholly improbable behaviour” she either tip-toed across the centre of the grid or jumped its entire length. The claimants’ expert favoured the first of these, the defendants’ expert, Ms Forsyth, the latter. Eventually it was conceded on behalf of the claimants that Ms Forsyth’s theory was, as the judge put it, “far more plausible”, or, as I would be inclined to say, the least implausible of the explanations available on the evidence.

The judge accepted this explanation saying at paragraph 44 of his judgment:

“This cow was in no state, despite good night vision, to make a calm appraisal of this grid, which she had never seen before, to identify its weakest point, and almost in the manner of an acrobat tiptoe along the sleeper. It is probable that she was travelling at some speed down the lane towards the road, saw the grid at the last minute, and reacted by jumping over it. An extraordinary long-jumper as well as an extraordinary high-jumper. This would account for her arriving on the road side of the grid in a relatively unscathed condition and able to continue her escape.”

Why did the cow, who, although she had that day been weaned from her calf, had nevertheless behaved normally and been reasonably calm during the day up to 8.30 p.m., behave in this way? The consensus of the opinion evidence was that she must for some reason have become extraordinarily agitated, quite out of character for her breed and for her judging from her behaviour with her two previous calves and during the day of the accident when she was observed in the field. The consensus of the opinion evidence also was that the explanation for this quite abnormal behaviour lay in her maternal instinct at being separated from her calf.

I confess to having entertained personal doubts during the hearing of this appeal as to some of the inferential explanations offered and accepted by the judge. If the cow was agitated for want of her calf, why, as is inferred, did she go left down the farm lane in the exact opposite direction from the calf, whose whereabouts she would have known from sound and smell. By going right, she could have got quite close to the byre in which the calf was. She may, however, have gone to the right first, before returning down the lane towards the highway. It also seemed to me intrinsically improbable (as it did to the judge) that the cow had long-jumped the 12 foot cattle grid without injury or leaving any signs of having done so. But the evidence was that cows can see in the dark, and Ms Forsyth reckoned that it was physically possible for this cow to have jumped over the cattle grid, although she would not in fact have done so, if she were in anything like a normal state for herself and her breed. She had proved by doing it that she was physically capable of clambering over the gate.

I should say that my personal doubts about some of the accepted inferences have no influence on my judgment as to the outcome of the appeal. This is firstly because the relevant findings of fact by the judge are not in issue on the appeal; and secondly because the cow undoubtedly did escape; because she must have done so in a state of extreme agitation; and because the only explanation for that state reasonably available on the evidence was a wholly abnormal exhibition of maternal instinct.

The claimants’ case based on negligence was formally abandoned before the judge at the submission stage. It had been made on what the judge considered to be the perverse basis that the cow had escaped over a brick wall beside the gate over which in fact on the evidence she had obviously gone. It was surprising, said the judge, that the allegation had ever been made at all. The defendants could not possibly have foreseen the extraordinary events which led to the accident. The cow had never before given any warning or indication of abnormal propensities. She was adequately supervised in a field with livestock proof boundaries and gate. There neither was nor could have been any criticism whatsoever of the gate which the cow surmounted to make her escape. Since there was no reason to suppose that the cow could or would make an escape from Bungalow Field, issues as to the adequacy of the cattle grid were strictly irrelevant. In any event, the entirely unforeseeable leap over the cattle grid made criticisms of its structure, which the judge would have dismissed in any event, causatively irrelevant. So the negligence claim failed with no appeal to this court against that finding.

The judge also dismissed the claim based on strict liability under section 2 of the Animals Act 1971. The claimants do appeal against that part of the decision.

The judge carefully considered the 1971 Act and cases decided under it at some length. I can do so rather more briefly for the purposes of this appeal. The leading case on the Act is the House of Lords decision of Mirvahedy v. Henley [2003] 2 AC 491, [2003] UK HL 16.

The 1971 Act followed the Law Commission Report on Civil Liability for Animals (1967) (Law Com No 13). Sections 1 to 6 of the 1971 Act made new provisions, replacing old rules of the common law, regarding strict liability for damage done by dangerous animals. For animals straying onto the highway, section 8 abolished common law rules excluding or restricting liability in negligence. Thus, had the accident in the present case been caused by a negligent breach of duty of care owed to the claimants, that is if the cow had escaped because the defendants were negligent, the claim would have succeeded.

Sections 1 to 6 have the heading “Strict liability for damage done by animals”. Section 1 provides that sections 2 to 5 replace rules of common law imposing strict liability in tort for damage done by an animal on the ground that the animal is regarded as ferae naturae or that its vicious or mischievous propensities are known or presumed to be known.

Section 2 of the 1971 Act is headed “Liability for damage done by dangerous animals”. It provides as follows:

“(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 …”

“Damage” is defined in section 11 to include death of, or injury to any person. On a literal reading of section 2(2)(a), there could be an element of tautology in asking whether the damage was likely to be severe, when in fact the damage included a person’s death.

Section 5 has some exceptions to liability under section 2 which are not relevant to the present case. Section 6(2) provides that:

“A dangerous species is a species –

(a)

which is not commonly domesticated in the British Isles; and

(b)

whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.”

The wording of this provision closely resembles that in section 2(2)(a). It is agreed that, upon this definition, a cow does not belong to a dangerous species. Accordingly there was no strict liability in this case under section 2(1).

The claimants’ case was, however, that there was strict liability under section 2(2). The judge held that the criteria of section 2(2)(a) were fulfilled, but that the likelihood of the damage or of its being severe was not due to characteristics within section 2(2)(b) which were known to the defendants.

As I have said, the judge considered that the criteria of section 2(2)(a) were fulfilled. He rejected submissions on behalf of the defendants that “unless restrained” meant, for a cow, “unless tethered” and that the damage was not of a kind which the cow was “likely” to cause or which was “likely” to be severe. These findings are challenged by Respondent’s Notice in this court, but we indicated at the end of the hearing of the appeal that it would not be necessary to decide those points of cross-appeal in the light of our decisions on the appeal.

As to section 2(2)(b), it was submitted on behalf of the claimants that the relevant characteristic was that of a recently weaned cow’s desire to return to her calf. There was a causative link between this characteristic, admittedly known to the defendants, and the accident. This characteristic, although normal for animals of the same species, was not normally found except at particular times or in particular circumstances, that is soon after the cow had been weaned from her calf. It was submitted on behalf of the defendants that, for a cow in a livestock proof field, a normal maternal characteristic was neither here nor there. Such a characteristic did not make a properly fenced cow dangerous. For this cow in these circumstances, the relevant causative characteristic was its exceptional jumping ability without which the cow had no potential to cause the relevant damage. This characteristic was not known to the defendants. The claimants submitted that, on the defendants’ case, a case of strict liability of this kind could scarcely ever succeed. The defendants submitted that, on the claimants’ case, a case of strict liability could scarcely ever be successfully defended. The judge held that the relevant characteristic was this cow’s exceptional ability to escape. This was not a characteristic known to the defendants. So the strict liability claim failed.

The grounds of appeal and Mr Edwards’ submissions in support of it essentially restate the case which failed before the judge. It is said that there was no basis on which the judge could find that the cow had an exceptional ability to escape which would not in any event be a characteristic within section 2(2)(b) of the 1971 Act. The agreed expert evidence was that what drove the cow to climb over the gate and jump the cattle grid was her extreme agitation and her desire to try to return to her recently weaned calf. This was a characteristic which she possessed because of the particular circumstance that she was recently weaned from her calf. The defendants, it is said, knew of this characteristic. The judge should have found that this characteristic was the cause of the accident. There was, as Mr Edwards put it, an inexorable chain leading from the cow’s agitation to the collision. He submitted that, under section 2(2)(b) of the 1971 Act, the keeper of a domesticated animal is strictly liable for its normal behaviour when that behaviour occurs only at particular times or in particular circumstances so long as the other requirements of section 2(2) are met.

Mr Edwards helpfully directed us to passages in the expert evidence. Ms Forsyth and the claimant’s veterinary expert, Mr Davidson, had had an Expert Witness Meeting, following which they recorded points on which they were agreed, which included the following. Recently weaned suckler cows, such as this cow was, all behave in a similar manner showing varying degrees of anxiety and desire to return to their calves, but can be less extreme and agitated in their behaviour than dairy cattle. It is not normal for a recently weaned suckler cow, or any cow, to jump or otherwise negotiate a gate such as the gate at this farm. It is, however, possible, but exceptional, for such a cow to get over such an obstacle in particular circumstances. The most likely motivation for the cow to leave the field was anxiety due to the fact that she had been separated that day from her calf. Separation from calves at weaning can be a source of distress to any cow and their calves.

Ms Forsyth in her written evidence said that it was physically possible for a cow to surmount a gate through which she could see. It was surprising that this cow, having climbed over the gate, turned left down the farm lane, as her calf was through the gate across the lane, and to the right, a route she had traversed on many occasions. It was not, in her opinion, a normal characteristic of recently weaned Limousin cross cows, or of any other breed, to jump over high obstacles in an attempt to escape from a field and rejoin their calves. It was extremely unusual for this cow, having escaped over the gate, to have turned left down the farm lane when the direct route to her calf, which she had previously travelled, was to the right.

When Ms Forsyth was asked in her oral evidence for her view as to the most likely way in which the cow managed to cross the cattle grid – strictly, perhaps, a point of fact for the judge, not for the expert – she said that her belief was that the cow jumped it. The circumstances in which the cow was likely to approach the cattle grid were ones of extreme behavioural agitation. In a later passage, Ms Forsyth supposed that the cow was more or less at a gallop; and she described the cow’s inferred state as “certainly significantly disturbed enough to get over the gate”; and “the exaggeratedly excited state that got it over the gate and the cattle grid”; and she agreed with counsel’s suggestion that the cow “was an excited, wild animal” up to the point when it got onto the highway. The cow was quite capable of jumping the length of the cattle grid, but was only likely to do so in the particular and unusual circumstances of her supposed excitement.

Mirvahedy is a difficult case. The claimant suffered personal injuries when the car he was driving collided with the defendant’s horse, which had panicked due to some unknown event and escaped with two others from its field. The field was adequately fenced and the defendants had not been negligent. The judge found that, although the horse had displayed characteristics normal for its species in the particular circumstances within the second limb of section 2(2)(b) of the 1971 Act, those characteristics had not caused the damage. The Court of Appeal allowed an appeal by the claimant. The House of Lords, by a 3:2 majority dismissed the appeal. Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Walker of Gestingthorpe were in the majority; Lord Slynn of Hadley and Lord Scott of Foscote were in the dissenting minority. The majority held that, under section 2(2)(b) of the 1971 Act, the keeper of a non-dangerous animal is strictly liable for damage or injury caused by it while it is behaving in a way that, although not normal behaviour for animals of that species, is nevertheless normal behaviour for the species in the particular circumstances, such as a horse bolting when sufficiently alarmed.

Four of the five members of the Appellate Committee found difficulty in construing section 2(2)(b) of the 1971 Act and in particular its second limb – “… characteristics of the animal … not normally so found except at particular times or in particular circumstances”. Lord Hobhouse on the other hand considered that there was no ambiguity either about the facts of the case before the House or about the meaning of paragraph (b). The other four Law Lords considered differences of interpretation of this sub-section in earlier decisions of the Court of Appeal in Cummings v Granger [1977] QB 397 and Curtis v Betts [1990] 1 WLR 459 on the one hand, and Breeden v Lampard (unreported) 21 March 1985 and Gloster v Chief Constable of Greater Manchester Police [2000] PIQR 114 on the other. The effect of the majority decision is conveniently synthesised in paragraph 7 of the judgment of Lord Phillips of Worth Matravers LCJ in Clark v Bowlt [2006] EWCA Civ 978 as follows:

“Section 2(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.”

To this must be added that the relevant characteristics have to be known to the animal’s keeper – section 2(2)(c).

The core of Mr Edwards’ submission was that there was a causative link between the cow’s propensity to be agitated upon separation from her calf and the accident. He accepted, that, on the evidence before the judge, the cow in the present case must have been more agitated than the farmer would have expected and that the evidence did not fix knowledge of the cow’s unusual and unexpected behaviour on the defendants. He accepted also that there was no evidence that cows in general become excessively agitated when they are weaned from their calves. There was no evidence that this particular cow had that propensity.

Mr Edwards also accepted, as Stuart Smith LJ said in Curtis v Best at page 470 B-E, that there must be a causal link between the characteristic in question and the damage suffered. This requirement, uncontroversial in this appeal, seems to me to be quite obvious, since the defendant has to know of the characteristic and neither the characteristic nor the knowledge will be relevant unless the characteristic was causative. I am no more deflected from this by the words “the likelihood of the damage” being “due to characteristics …” than was Stuart-Smith LJ in the paragraph of his judgment in Curtis v Best to which I have just referred. See also Neill LJ in Smith v Ainger (unreported) 16^th May 1990 at p. 7F of the transcript. That this is correct may be seen, for instance, from paragraph 161 of Lord Walker’s opinion in Mirvahedy where he said that the essential point on the issue of causation was that, in order to recover, the claimant had to show that the damage which he had suffered was caused, not merely by horses escaping and being on the main road, but by the characteristics which are capable of founding strict liability under section 2(2).

The manifestation of the cow’s maternal instinct on which Mr Edwards relies is normally found in cows, and so the case cannot be within the first limb of section 2(2)(b). To succeed, the claimants have to define the causative characteristic, being a characteristic only found at particular times or in particular circumstances, and show that it was known to the defendants, There is no difficulty in showing the particular time or circumstance, that is when the cow was just weaned from her calf. But there is difficulty on the facts of this case with showing that the relevant causative characteristic was known to the defendants.

The causative characteristic has to be a dangerous behavioural characteristic, even though it may be limited to particular times or circumstances. I say this because the heading of section 2 of the 1971 Act shows that the section is concerned with damage done by dangerous animals; and because there are numerous references to this effect in Mirvahedy. These references include paragraphs 6, 9, 19, 34, 40, 43, 59, 71, 83, 103, 155 and 157.

In Mirvahedy, Lord Walker summarised in paragraph 161 the characteristic capable in that case of founding strict liability under section 2(2) as “a frightened horse’s propensity to bolt, to continue to flee and to ignore obstacles in its path”. See also for a more extended description his paragraph 157. The cow in the present case had no known propensity to behave as she did.

Likewise, Lord Hobhouse said in paragraph 69 of the facts in that case that horses are not normally in a mindless state of panic nor do they ignore obstacles in their path. These characteristics are normally only found in horses in circumstances where they have been very seriously frightened. It is only in such circumstances that it became likely that, due to these characteristics, the horse would cause severe damage. The case clearly came within the words of section 2(2)(b). He said in paragraph 71 that there is an implicit assumption of fact in section 2(2) that domesticated animals are not normally dangerous. But the purpose of paragraph (b) is to make provision for those that are. It deals with two specific categories where the assumption of fact is falsified. The second (in the second limb of paragraph (b)) is an animal which, although belonging to a species which does not normally have dangerous characteristics, nevertheless has dangerous characteristics at particular times and in particular circumstances. In paragraph 72, he referred to the requirements in paragraph (c) that a keeper who is not blameworthy bears the risk when he knows of the characteristics of the animal which make it dangerous and liable to cause injury or damage.

Lord Nicholls, having expressed in paragraph 44 his preference for the Cummings’ interpretation as according more easily and readily with the statutory language, referred to damage caused by an attack by a newly-calved cow or a dog on guard duty as fitting readily into the description of damage due to characteristics of a cow or a dog which are not normally found in cows or dogs except in particular circumstances. It is implicit that the keeper of the animal in these examples would have the requisite knowledge of the characteristics. There is, in my judgement, a clear distinction between an attack by a newly-calved cow and the facts of the present case, where the cow’s exceptional behaviour could not properly be described as normal in any circumstance.

In my judgment, the strict liability claim fails in the present case because the behavioural characteristic relied on by the claimants – agitation resulting from the cow’s normal maternal instinct upon being separated from her calf – was neither dangerous nor causative; whereas the dangerous and causative behaviour – exceptional and exaggerated agitation resulting from her maternal instinct so that she was in the state of an excited, wild animal – was not normal and was not known to the defendants. The latter was scarcely a characteristic of the cow other than possibly in the very limited sense that, upon the judge’s finding, this behaviour for some reason occurred. It was certainly not, on the evidence and the judge’s findings, characteristic of the cow or its breed at all. Thus, I do not, strictly speaking, agree with the judge that the only characteristic possessed by this animal which made her dangerous was her exceptional ability to escape. That is not, to my mind, a behavioural characteristic, but part of the manifestation of it. But the underlying thought is the same.

This analysis and application of section 2(2)(b) to the facts of this case accords, in my view, with its analysis and application by the majority of the House of Lords in Mirvahedy. Horses are known, (and were known to the defendants in Mirvahedy) occasionally to panic and bolt, charging through or over fences, gates, hedges or other obstacles which would normally satisfactorily contain them. Neither this cow nor the breed generally were known to exhibit their maternal instinct with such excited and exaggerated anxiety as was inferred for whatever abnormal reason in this case.

For these reasons I would dismiss this appeal.