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Goldsmith v Patchcott, Court of Appeal, 27 February 2012

9 March 2012
The issues

Animals Act 1971 – statutory defence – horse – voluntary acceptance of risk

The facts

Mr Patchcott was a keeper of a horse called ‘Red’. The horse had been owned or possibly was still owned at the time of the accident by a Mrs Roach. Although Mrs Roach was named as a defendant she had played no part in the proceedings. Mr Patchcott had looked after Red for some months and was trying to find someone to give the horse too. Mrs Goldsmiths met Mr Patchcott on or about the 19 March 2008. She and her family visited him at his home three times over the next few days and she rode Red in Mr Patchcott’s company. On 24 March, she went for a ride on Red by herself. Something startled the horse and it reared up and then bucked violently. The claimant tried to ride it through but failed and was thrown to the ground and struck by the horses hoof. She suffered severe facial injuries and brought a claim for personal injuries under the Animals Act as well as a claim in negligence.

The leading case was Mirvahedy v Henley a decision of the House of Lords which decided that the literal approach taken of the construction of s.2(2)(b) as adopted by the Court of Appeal in Cummings v Granger should be followed

The judge found that the claimant had been told that Red needed an experienced rider. There had been no significant incidents where the claimant rode Red before the 24 March and there was nothing in the horse’s behaviour in the stable on that day which gave cause for concern. The judge found that something unknown but out of the ordinary startled the horse, and both claimant and defendant knew that horses could buck when startled or alarmed. However, the judge found that Red had not bucked before as far as Mr Patchcott knew. At trial the claimant did not pursue the allegations of negligence but concentrated instead on her claim under s.2(2) of the Animals Act. That section provides:

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

The parties agreed that s.2(2)(a) was made out. In respect of 2(2)(b) the judge found that the relevant characteristic of Red was rearing and bucking when startled or alarmed and was a normal characteristic of horses in particular circumstances. Accordingly, the judge found that s.(2)(2)(b) was made out. The judge found that s.2(2)(c) was satisfied since the relevant characteristic was known to the defendant. The Animal’s Act contained a statutory defence under s.5(2) – the act exempted liability in respect of damage suffered by a person who voluntarily accepted the risk. The judge found that the claimant was aware of the risk that Red would rear and buck if startled or alarmed and that she therefore voluntarily accepted that risk.

The claimant appealed and the defendant cross-appealed to the Court of Appeal.

The decision

The leading case was Mirvahedy v Henley a decision of the House of Lords which decided that the literal approach taken of the construction of s.2(2)(b) as adopted by the Court of Appeal in Cummings v Granger should be followed. Lord Nicholls had helpfully summarised the effect of s.2(2)(b) as follows: “requirement (b) will be satisfied whenever the animals conduct was not characteristic of species in the particular circumstances. Requirement (b) will also be satisfied when the animal’s behaviour was characteristic of the species in those circumstances”. It was evidence that in most cases where s.2(2)(a) had been satisfied, requirement (b) will also be satisfied and it was not clear to Jackson LJ what purpose s.2(2)(b) served.

As to the statutory defence, the authorities showed that if a claimant knowing of the risk which subsequently eventuated proceeded to engage with the animal, that claimant’s claim would be defeated. It was not a prerequisite of the defence that the claimant should foresee the precise degree of energy with which the animal will engage in its characteristic behaviour.

The defendant argued that the phrase “at particular times or particular circumstance” had to denote times or circumstances which could be described or predicted. In the light of the authorities however, the s.(2)2(b) should not be given the restrictive interpretation contended for. The judge had found that bucking and rearing were characteristics of horses in particular circumstances, namely when they were startled or alarmed. His conclusion that the requirements of the section were satisfied followed logically from that finding. As to the statutory defence, the claimant argued that the claimant voluntarily accepted the risk of normal bucking but not violent bucking. S.2(2) imposed strict liability for damage caused by domesticated animals irrespective of whether the keeper was at fault. Against that background s.5(2) should not be construed as restrictively as the claimant contended. If the claimant foresaw the possibility of bucking and voluntarily accepted the risk, s.5(2) was engaged and the fact that Red bucked more violently than anticipated did not take it outside the section.

Appeal dismissed, cross appeal dismissed.

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