Flack v Hudson

A person who possesses an animal and is therefore its keeper may recover under the Animals Act 1971 from another keeper who owns it. The Act contains no exclusion of claims between keepers. The owner remains protected by the statutory requirements concerning knowledge and by the available defences.

Whether conduct reveals an abnormal characteristic for section 2(2)(b) is a question of fact. The characteristic need not manifest itself invariably or with predictable regularity.

For section 5(2), the claimant must voluntarily accept the risk arising from the particular characteristic which caused the injury. General awareness that riding a horse carries risks, or an insufficiently specific warning, does not establish that defence.

The claimant's wife was killed after a horse owned by the first defendant bolted when approached by a tractor and trailing sprayer. She had regularly exercised the horse with the owner's consent. Her widower claimed for the dependants under the Fatal Accidents Act 1976, relying solely on strict liability under section 2 of the Animals Act 1971.

A deputy High Court judge awarded £175,000. He found that both the owner and the deceased were keepers, that the horse had an abnormal propensity to become upset and bolt near agricultural machinery, and that the owner knew of it. He also rejected the statutory defences of fault and voluntary acceptance of risk.

The owner appealed, disputing liability between co-keepers, the existence of the abnormal characteristic and the rejection of the section 5(2) defence. The claimant cross-appealed on whether the deceased was a keeper.

1. The appeal and cross-appeal were dismissed unanimously. Otton LJ delivered the leading judgment. Keene LJ agreed and gave additional reasons on claims between keepers. Maurice Kay J agreed with both judgments.

2. A bailee or other person possessing an animal may invoke section 2 of the Animals Act 1971 against its owner, although each is a keeper under section 6(3). Nothing in the Act expressly or impliedly restricts recovery to strangers or third parties. The owner's protection lies in the requirement to prove the relevant knowledge under section 2(2) and in the section 5 defences. This construction is consistent with the established ability of a bailee who lacks knowledge of a defect to recover from the bailor.

3. The existence of a characteristic not normally found in the species was essentially a question of fact. Section 2(2)(b) should receive a broad interpretation. A characteristic need not be invariably displayed, habitual in the sense advanced by the owner, or demonstrated by an exactly analogous prior accident. The earlier bolting incident, the owner's statement that the horse had bolted with her, and her statement that it feared farm vehicles provided ample evidence of the pleaded propensity. The expert evidence did not show that all horses bolt in those circumstances.

4. Section 5(2) uses ordinary language and should receive a broad construction, free from technical limitations associated with the common-law doctrine of volenti non fit injuria. Nevertheless, the relevant risk was injury caused by the horse's particular characteristic. General acceptance of the ordinary risks of horse riding was insufficient. The deceased had not been alerted to the horse's particular aversion to agricultural machinery, and the judge was entitled to find that she had not voluntarily accepted that specific risk.

5. The cross-notice also failed. The statutory language defining a keeper was clear. A person possessing or controlling a horse may be liable to third parties where the statutory requirement of knowledge of the dangerous characteristic is satisfied.

• Court of Appeal: The owner's appeal and the claimant's cross-appeal were dismissed unanimously. Leave to appeal to the House of Lords was refused.
• High Court, Queen's Bench Division: His Honour Judge Langan QC, sitting as a deputy High Court judge, gave judgment for the claimant for £175,000. The judgment is identified in the supplied heading as [2000] EWHC 0002 (Ch).