Liability of Animal Owners/Keepers

1. Liability of Animal Owners/Keepers Presented by Simon Burley ACII FCILA Andrew Robinson ACII FCILA

2. Animals on the Highway Animals on the highway. Innocent motorist strikes animal. Is there a liability in:- a) negligence b) Animals act 1971 If so who is liable:- • Owner? • Keeper?

3. Animals Act 1971Section 2(1) – dangerous species “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”. Section 2(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 • 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 • 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 • 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 the household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.” Mirvahedy-v-Henley, House of Lords, March 2003 Clark –v- Bowlt 2006 The Court of Appeal

4. Highways Code Paragraph 214 “Animals. When passing animals, drive slowly. Give them plenty of room and be ready to stop. Do not scare animals by sounding your horn, revving your engine or accelerating rapidly once you have passed them. Look out for animals being led, driven or ridden on the road and take extra care. Keep your speed down at bends and on narrow country roads. If a road is blocked by a herd of animals, stop and switch off your engine until they have left the road. Watch out for animals on unfenced road”

5. Dogs

6. Dogs

7. Curtis –v- Betts 1990 A bull mastiff dog caused a severe injury to the claimant boy whilst the dog was being put in the back of a Land Rover. The dog and boy were on friendly terms for a number of years. The boy came over to the car and was encroaching the dogs “territory” the dog’s owner knew it reacted fiercely when it considered its territory threatened and they also knew the dog regarded the Land Rover as its territory – liability found.

8. Whippey –v- Jones Court of Appeal 2009 Claimant knocked over by a boisterous dog and injured. At first instance the claimant did not successfully make out a liability under section 2(2) of the Animals Act. The claimant appealed and the Appeal Court considered whether the dog owner had been negligent (they did not further consider the Animals Act) the claimant lost. • Addis –v- Campbell & Leaman 2011 Elderly claimant was allegedly knocked over by a boisterous dog. Claimant suffered severe head injury, was in a coma, in fact he never recovered from that. There was considerable doubt as to whether the dog had in fact impacted the injured party, in any event there was no finding of negligence and no liability under the Animals Act.

9. Highways CodeParagraph 56 “Dogs. Do not let a dog out on the road on its own. Keep it on a short lead when walking on the pavement, road or path shared with cyclists or horse riders.”

10. Section 3 of the Animals Act “Liability for injury done by dogs to livestock. Where a dog causes damage by killing or injuring livestock, any person who is a keeper of the dog is liable for the damage, except as otherwise provided by this Act”. Section 4 of the Animals Act “Liability for damage and expenses due to trespassing livestock. • Where livestock belonging to any person strays on to land in the ownership or occupation of another and— • damage is done by the livestock to the land or to any property on it which is in the ownership or possession of the other person; or • any expenses are reasonably incurred by that other person in keeping the livestock while it cannot be restored to the person to whom it belongs or while it is detained in pursuance of section 7 of this Act, or in ascertaining to whom it belongs; the person to whom the livestock belongs is liable for the damage or expenses, except as otherwise provided by this Act. • For the purposes of this section any livestock belongs to the person in whose possession it is”.

11. Who is liable, the owner or the keeper? Section 5.3 of the Animals Act A person is not liable under section 2 of this Act for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either— • That the animal was not kept there for the protection of persons or property; or • (If the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable. Cummings –v- Grainger 1977 claimant was trespassing in a scrap yard.

12. Who is liable, the owner or the keeper? Section 6 of the Animals Act Section 6 • a person is a keeper of an animal if— • he owns the animal or has it in his possession; or • he is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession; and if at any time an animal ceases to be owned by or to be in the possession of a person, any person who immediately before that time was a keeper thereof by virtue of the preceding provisions of this subsection continues to be a keeper of the animal until another person becomes a keeper thereof by virtue of those provisions. • Where an animal is taken into and kept in possession for the purpose of preventing it from causing damage or of restoring it to its owner, a person is not a keeper of it by virtue only of that possession.

13. Insurance Where is insurance cover available to the owner or keeper? Specific equine or pet protect policy. Membership scheme such as British Horse Society, British Show Jumping Association, British Eventing/British Dressage. Household Contents – Personal Liability cover

14. Riding School/Riding Accidents Duty to provide: • Proper supervision and instruction • Suitable horse • Adequate assessment of the riders competency • Safe tack and equipment

15. Case Law(Animals Act) • Elliot -v- Townsend Stables Child fell off pony during a lesson when the pony bucked. It was tender over its ribs which was not known or discoverable prior to the accident. The claimant squeezed/kicked the tender spot causing the pony to react, jump off the track and un seat the claimant. There was no likelihood of injury although a possibility, this was a fall at relative low speed in an enclosed ménage on a soft surface. • Welsh -v- Stokes & Stokes, 2007 The claimant suffered severe head injury (despite wearing appropriate head gear) when she fell from a horse she was exercising onto the road. The only witness to the accident was never traced but told the next person on the scene that the horse reared up and had fallen over backwards. That version was accepted. It was held that all three sub sections of section 2(2) were satisfied.

16. Case Law • Freeman –v- Higher Park Farm, Court of Appeal, 2008 This was an experienced rider who had hacked out previously at Higher Park Farm. She returned and was told that the horse that was available could occasionally buck. She consented to that risk. She was bucked off. Courts held that an occasional buck when starting to canter was not a characteristic, and allowed a defence under Section 2. • Body –v- Hall, 2011 Mrs Body was an experienced equestrian, this was an accident involving a horse drawn trap. She went along as groom to Mrs Hall. The horse spooked and bolted and the carriage turned over. She suffered serious head injury. She wasn’t wearing a hard hat. There was no negligence and there was a section 5(2) “consent” defence to the Animals Act.

17. Case Law • Seyf –v- Richmond Park Claimant fell from a horse whilst out hacking, the horse accelerated and drifted slightly to the right whilst cantering. The Court agreed that the horse was not dangerous or unsuitable and there was no lack of supervision or control. The claimant was not successful.

18. Section 5(1) of the Animals Act A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it. Section 5(2) of the Animals Act A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof. Jones –v- Baldwin 2010 The claimant rode too close to another horse which kicked him. No liability. Smith –v- Dallimore 2011 An experienced rider taking part in a lesson given by supervised trainee instructor. Claimant rode too close to the horse in front and was kicked, no liability.   The statutory defence under section 5(1) was made out and the Judge noted that she had voluntarily accepted the risks associated with riding – section 5(2) defence was also made out.

19. Compensation Act 2006 PART 1 STANDARD OF CARE • Deterrent effect of potential liability. A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might- • prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or • discourage persons from undertaking functions in connection with a desirable activity

20. McKaskie –v- Cameron 2008 Claimant attacked by cows when she deviated from footpath. Liability attached. Occupiers Liability Act • Mckenny and another v Foster 2008 A cow jumped a fence and collided with a car on a highway killing the passenger. It was highly unusual for it to have jumped a fence. The cow had been separated from her calf. The behaviour was not a normal characteristic nor was it normally shown at particular times. It was an atypical characteristic. The claimant could not show that the defendants knew of it. All three sub sections of section 2(2) not satisfied, claimant did not succeed.

21. The Animals (Scotland) Act 1987 • Welsh –v- Brady 2009 • The Animals (Northern Ireland) Order 1976

22. Summary No likely immediate amendment to the Animals Act However there are defences to the Act and the government have signalled that society should not be risk averse Repeal of the hunting act? Comfort can be taken from the judgments in:- Tomlinson v Congleton Borough Council 2003, House of Lords Trustees of Portsmouth Youth Activities Committee –v- Poppleton 2008 “Adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so they are injured”