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Welsh v M J Stokes & G J Stokes, High Court, 27 July 2007

8 August 2007
The issues

Hearsay – Civil Evidence Act 1995 – Animals Act 1971 Section 2(2).

The facts

On the 31st July 2001 the Claimant, who was 17, was riding a 9 year old horse called Ivor on a road near Sticker in Cornwall. She fell off and suffered a serous head injury. She had no memory of the accident. She had been working as a trainee at the Defendantís yard since October 2000. She was competent to ride a ‘sensible horseî on her own. Ivor was a ‘sensibleî horse with no history of misbehaviour. The accident occurred at a cross roads. There were two motorists in the area, one of whom, Mr Wragg, gave evidence and the other, an unidentified man, who did not give evidence and who failed to remain at the scene or leave his name and address. Mr Wragg did not see the accident. However, he said the other motorist had told him that he had seen the accident and told Mr Wragg what he had seen. The matter came to Trial on liability. The Judge dismissed the claim in negligence and found that strict liability was established under Section 2(2) of the Animals Act 1971. The Defendant appealed in respect, firstly of whether the Judge was right to give weight to the hearsay evidence of the unidentified motorist and secondly, whether the Judge correctly applied Section 2(2) of the 1971 Act.

The decision

The hearsay issue.
Mr Wragg had given 2 statements. In his first statement he had said that the unidentified motorist had told him that ‘apparently, the horse had stepped backwards and then the young girl had fallen off and the horse had fallen onto herî. In response to a request from the Claimantís solicitors asking for amplification of this statement Mr Wragg said in his second statement ‘apparently the horse had reared up and then the young girl had fallen off and the horse had fallen onto herî.

In respect of this issue the appeal would be dismissed. The Judge had directed himself properly in consideration to the weight to be accorded to the hearsay evidence and has had regard to each of the factors listed in Section 4(2) of the Civil Evidence Act 1995. He had satisfied himself that the second statement gave an accurate account of what had been said by the unidentified motorist and had considered carefully whether that statement had been influenced by the solicitorís questions. The Judge had concluded for rational reasons that it had not been. He had been able to assess Mr Wragg as a witness and took into account that the evidence taken into account of Mr Welsh, and in particular of his conversation with Mr Wragg a few weeks or months after the accident, which was consistent with Mr Wraggís second statement. The Judge had plainly been alive to the difficulty of assessing the reliability of the account given by the unidentified motorist, he had expert evidence to hand to the effect that the account was ‘credibleî. That was important evidence that the Judge was entitled to take into account in deciding to give weight to the evidence. He was entitled to infer that the hearsay evidence was reliable and conclude that he should give it weight and reached a conclusion that was reasonable and well within the ambit of conclusions that were reasonable for a Court to reach.

Generally
The decision as to what weight to give to hearsay evidence involves an exercise of Judgment. Where a case entirely depends on hearsay evidence the Court will be particularly careful before concluding that it can be given any weight. There is however no rule of law prohibiting a Court to giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party. There was nothing to support such a view in either of the Authorities sited by Defendants, namely ‘the Ferdinand Retzlaff or Polanski v Conde Nast Publications Ltdî.

The Animals Act issue.
Section 2 of the 1971 Act provides:-

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 it 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 the keeper or were at any time known to a person who, at that time, had charge of that animal as that keeperís servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of 16.

With regard to Section 2(a) he had found that the damage caused was not of a kind which, unless restrained, the horse was likely to cause. The horse was a docile animal and the Defendants had no reason to believe that he would rear up in the way that he did. With regard to the second limb of 2(a) he found this limb satisfied in that personal injury arising from such an accident was likely to be severe.

In regard to 2(b) the Judge found that the likelihood of damage being severe was ‘possiblyî due to characteristics of the horse which were not normally found in other horses because horses did not normally rear up and fall on their riders.

As regards to (c) he found this limb met as well, on the basis that the Defendants knew, or would have known, that the horse, like any horse of its kind, was capable of rearing in certain situations if not handled properly. In the Judgeís view, anyone who had any reasonable experience of horses knew that they were unpredictable animals with minds of their own and that however good they usually were, they were quite capable of behaving in an unpredictable way, especially if they were being ridden by someone lacking the necessary skills to handle a crisis. The Defendants had argued that the sole basis for the Judgeís conclusion that subsection 2(b) was satisfied was that rearing in the particular circumstances was something of which Ivor, like any horse, was ‘capableî and that that was not the statutory test. This criticism of the Judgment was rejected. The Judge had found that although rearing generally was not a normal characteristic for the horse, because he did not rear regularly, the Judge had said that he was capable of rearing up in the particular circumstances. In saying this the Judge meant that it was a normal characteristic of either to rear up in such circumstances (because it was natural for horses to do so from time to time).

The Defendants had also criticised the Judgment on the basis that the conclusion that rearing was normally found in horses in the particular circumstances was inconsistent with other findings by the Judge and, in particular, that rearing was not likely or foreseeable and that the Defendants had had no reason to believe that the horse would rear up in the way that he had done. This criticism was also rejected. It was irrelevant that there was no evidence that the horse had ever reared in this way before because the relevant question was whether rearing was a characteristic normally found in horses as a species in the particular circumstances. The relevant question was not whether the horse tended to rear generally, but whether he had the characteristic of rearing in the particular circumstances. The Judge had not made inconsistent findings. When the Judge had said that the horse was not likely to rear up and that rearing up was not a normal characteristic ‘for himî, the Judge was saying no more than that the horse had no track record of rearing. He was not saying that it was not normal for horses as a species to rear up in the particular circumstances.

The Defendant had also argued that the Judge had failed to direct himself correctly as to the need for the Claimant to establish that the Defendants had specific knowledge that the horse had the characteristic of rearing in the particular circumstances. The Defendant argued that knowledge of the animals of the species in general had the relevant propensity was insufficient and that what was required was specific knowledge on the part of the keeper of the allegedly dangerous propensity of the specific animal. The Defendant relied on the previous decision of the Court of Appeal in Breeden v Lampard. That decision did not assist here because the Court had proceeded on the basis that the Judge in that case had been entitled to find on the evidence that the Defendant did not have the necessary knowledge. The Court had not considered what the requirement of knowledge entailed.

It was disputed that 2(c) required it to be shown that the keeper knew that the particular animal which caused the damage had the characteristics found satisfied subsection 2(b). The only question was how that knowledge could be proved. There was no reason why a keeperís knowledge that a horse had the characteristic of normally behaving in a certain why in particular circumstances could not be established by showing that the keeper knew that horses as a species normally behaved in that way in those circumstances. It made no sense to require a keeper, if aware of a general characteristic, to have some additional and more particular knowledge.

Appeal dismissed.

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