Mirvahedy (FC) (Respondent) v. Henley and another (Appellants)

Under section 2(2) of the Animals Act 1971, the keeper of an animal belonging to a non-dangerous species may be strictly liable for damage caused by a dangerous characteristic which is generally abnormal for the species but normal at a particular time or in particular circumstances.

Liability is not excluded merely because the animal behaved as any member of its species would behave under the relevant stimulus. The statutory conditions concerning the likelihood or severity of damage, the qualifying characteristic and the keeper’s knowledge must all be satisfied.

The damage must be caused by the qualifying characteristic. The animal’s mere presence at the place of injury is insufficient.

Mirvahedy suffered serious personal injuries when his car collided with a horse belonging to the appellants. The horse and two ponies had been terrified by an unknown cause, broken through adequate fencing and fled for almost a mile before reaching a main road.

The Exeter County Court dismissed claims in negligence and under section 2 of the Animals Act 1971. No appeal was pursued on negligence. The Court of Appeal allowed the statutory claim, holding that the accident was caused by the horses’ behaviour once terrified: [2001] EWCA Civ 1749; [2002] 2 WLR 566.

The issue was whether section 2(2)(b) imposed strict liability where the horse’s behaviour was abnormal generally, but normal for horses when seriously frightened.

1. Appeal dismissed by a majority of three to two. Lord Nicholls, Lord Hobhouse and Lord Walker formed the majority. They held that the second limb of section 2(2)(b) of the Animals Act 1971 creates an alternative class of qualifying characteristics. It includes a characteristic which is not normally found in animals of the species except at particular times or in particular circumstances. The provision may therefore apply even though the animal behaved as members of its species normally behave under the particular stimulus.

2. Per Lord Nicholls, the majority construction accorded more naturally with the statutory language and with the legislative scheme. Section 2(2)(b) retained content because it excluded dangerousness arising from characteristics found in all members of the species at all times, such as the size and weight of a cow. The House approved the construction adopted in Cummings v Granger [1977] QB 397 and Curtis v Betts [1990] 1 WLR 459. It declined to follow the contrary construction favoured in Breeden v Lampard and Gloster v Chief Constable of Greater Manchester Police [2000] PIQR P114.

3. Per Lord Nicholls, Lord Hobhouse and Lord Walker, the statutory requirements were satisfied. Requirements (a) and (c) were accepted: the damage was likely to be severe, and the keepers knew how horses behave when terrified. Requirement (b) was satisfied because mindless panic, continued flight and the disregard of obstacles are generally abnormal characteristics of horses, although normal when they are seriously frightened. The damage was caused by those characteristics rather than merely by the horses’ presence on the highway. The Court of Appeal’s conclusion on causation was therefore upheld.

4. Lord Slynn and Lord Scott dissented. They construed section 2(2)(b) as requiring a characteristic abnormal for the species even in the relevant circumstances. On that construction, normal behaviour in special circumstances could not attract strict liability, and they would have allowed the appeal. Lord Scott also observed, on an issue which had not been contested, that “likely” in sections 2(2)(a) and 6(2)(b) required reasonable expectation rather than mere possibility.

1. House of Lords: By a majority of three to two, dismissed the keepers’ appeal and affirmed the Court of Appeal’s conclusion that strict liability arose under section 2(2) of the Animals Act 1971: [2003] UKHL 16.
2. Court of Appeal: Allowed the claimant’s appeal on the statutory claim. It reversed the County Court’s conclusion on causation and held that section 2(2)(b) applied: [2001] EWCA Civ 1749; [2002] 2 WLR 566.
3. Exeter County Court: Dismissed both the negligence claim and the claim under section 2 of the Animals Act 1971. The negligence ruling was not appealed.