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McKenny v Foster, Court of Appeal, 6 March 2008

14 March 2008
The issues

Animals Act 1971 – escaped cow colliding with vehicle driven by Claimant.

The facts

On the 27th April 2002 a Vauxhall Vectra driven by Helen McKenny collided with a cow which had escaped and strayed onto the road. At the time of the collision the cow was standing still. The passenger, Derek Shaw, was killed. Ms McKenny was injured. Ms McKenny and the estate of Derek Shaw brought a claim against the Defendant farmer whose cow it was. At the time of the accident it was dark. The Claimant was driving within the speed limit. The Claimants argued that the cow’s escape resulted from the negligence of the Defendants. They also contended that the Defendants were strictly liable under Section 2 of the Animals Act 1971. The Judge found against the Claimants on both grounds. The Claimants appealed in respect of the finding under the Animals Act 1971.

The cow had been separated from her calf and kept in an enclosed field. She had been weaned from her calf. It was common ground that when weaned a cow might demonstrate a maternal instinct and wish to rejoin her calf. She might display agitation. The calf on this occasion was near enough to be heard if calling out and to be smelt. Neither this cross-breed of cow nor this cow in particular had been known to experience an abnormal reaction on weaning before. The cow had never escaped before. On this occasion she had walked to the boundaries of the field and there may have been some calling between mother and calf. The cow settled down and showed no signs of distress of agitation. The field that she was kept in was one that could not be criticised for its mixture of hedges, fencing or the height. There was evidence that the cow had escaped from the field by jumping or clambering over a six barred livestock gate. There was nothing about the gate’s construction or dimensions that could be criticised. Nothing similar had ever happened before at the Defendant’s farm, either to this cow or any other cow of a similar breed or to any other cow at all, or indeed to any other animal. The evidence was also that not only had she done this but she had jumped over a twelve foot cattle grid, despite the fact that no expert called had known or heard of a cow crossing a cattle grid before. She had either tip-toed across the centre of the grid or jumped its entire length. The reason for this quite abnormal behaviour in the view of the experts lay in the cow’s maternal instinct at being separated from her calf.

The decision

The Claimant’s case was that the Defendant was strictly liable under Section 2(2) of the Animals Act 1971, ie:

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… 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 and are not normally so found except at particular times or in particular circumstances; and c) those characteristics were known to that keeper”.

The Judge had rejected the Claimant’s case. The leading case was Mirvahedy v Henley, a decision of the House of Lords. Mirvahedy was a difficult case. Four of the five members of the House of Lords found difficulty in construing Section 2(2)(b) and in particular at second limb “characteristics of the animal… not normally so found except at particular times or in particular circumstances”.

The manifestation of the cow’s maternal instinct, on which the Claimant relied, was normally found in cows. The case could not therefore be within the first limb of Section 2(2)(b). To succeed therefore the Claimant had to show that the causative characteristic was a characteristic only found at particular times or in particular circumstances and show that it was known to the Defendants. There was no difficulty in showing the particular time or circumstances, that is, when the cow was just weaned from her calf. There was a difficulty on the facts of the case with showing that the relative causative characteristic was known to the Defendants.

The claim failed because the behavioural characteristic relied on by the Claimants – agitation resulting from the cow’s normal maternal instinct on 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 not a characteristic of the cow other than possibly, in the very limited sense, that on the Judge’s finding this behaviour, for some reason, occurred. It was not characteristic of the cow or its breed at all. This analysis and application of Section 2(2)(b) to the facts of the case accorded with the analysis and application by the majority of the House of Lords in Mirvahedy. Horses were 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 contain them. Neither this cow nor its 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.

Appeal dismissed.

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