Hole v Ross-Skinner

A landowner who keeps animals must take reasonable precautions, assessed in all the circumstances, to prevent their escape and foreseeable damage. Negligence requires more than evidence that fencing and gates across the wider property were generally in poor condition. The relevant inquiry is the security of the fields where the animals were kept or could gain access, together with whether any breach was the effective cause of the escape and accident. Where animals escape through a fence cut by an intruder and a gate opened by someone else, liability does not follow without evidence that the owner was at fault or that reasonable precautions would have prevented the escape.

The claimant suffered severe injuries when his car collided with loose horses on a dual carriageway. The trial judge held the defendant liable in negligence and under section 2(2) of the Animals Act 1971, with damages to be assessed separately.

The defendant appealed. The strict-liability issue fell away after the House of Lords affirmed the Court of Appeal decision in Mirvahedy v Henley [2003] 2 WLR 882; the Court of Appeal decision was reported at [2002] 2 WLR 566. The claimant withdrew opposition to the appeal, which continued because the defendant intended to pursue contribution claims. The remaining issue was whether the evidence established negligent maintenance of the relevant fields’ fences and gates, and causation of the horses’ escape and the accident.

Appeal allowed. The Court of Appeal allowed the appeal against the finding of common-law negligence. The strict-liability finding under section 2(2) of the Animals Act 1971 was not challenged on this appeal and remained undisturbed.

1. Duty. Lord Justice Mummery accepted that a person keeping animals on land must take reasonable precautions in all the circumstances to prevent escape and foreseeable damage. The question is whether the precautions were reasonable in relation to the animals and the route by which they escaped.
2. Evidence and breach. The probabilities were that the horses had been secure in Middle Park when left for the night. The separating fence was later cut, and the gate from Top Park to Warmwell Road, closed that evening, was open the next morning. Neither event was attributable to the defendant or anyone working for him. There was no evidence that the road-side fences were otherwise insecure, or that any reasonable precaution would have prevented the escape.
3. Relevant condition of premises. The trial judge found the gates and fences generally scruffy, but also found that double padlocking was neither normal nor required and that fence height was probably adequate. General poor condition across the estate was insufficient. What mattered was the condition and security of the fields where the horses were grazing or to which they had access.
4. Causation. The trial judge had not addressed whether any breach caused the escape. Negligence required proof that the breach, if any, was the effective cause of the animals’ escape and the resulting accident. The evidence and findings did not establish that causal connection.
5. Lord Justice Laws agreed, emphasising that there was no proper finding or evidential basis that any act or omission by the defendant caused the escape or accident. Lady Justice Arden agreed with both judgments.

The formal order was appeal allowed, with no order for costs.

• Court of Appeal (Civil Division): Allowed the appeal against the negligence finding. The strict-liability finding under section 2(2) of the Animals Act 1971 was not disturbed. No order for costs.
• Weymouth County Court: On 18 July 2002, HHJ Thompson QC found the defendant liable in negligence and under section 2(2) of the Animals Act 1971. Damages were to be assessed separately.