Welsh v Stokes & Anor

Untested and uncorroborated hearsay is not subject to an absolute rule preventing a court from giving it weight. The court must assess reliability on all the available material under Civil Evidence Act 1995, section 4, with particular caution where hearsay is the only evidence of a central fact.

For Animals Act 1971, section 2(2)(b), “normally” means conforming to type, rather than invariably or usually occurring. A keeper’s knowledge under section 2(2)(c) of a particular animal’s characteristic may be proved by knowledge that animals of that species normally exhibit it in the relevant circumstances.

The claimant, then aged 17 and working at the defendants’ riding yard, suffered serious head injuries after falling from Ivor, a horse she was riding on a road. She could not remember the accident. The trial judge accepted hearsay evidence from a motorist who reported that an unidentified witness had seen the horse rear, causing the claimant to fall.

Plymouth County Court: Judge Tyzack QC dismissed the negligence claim but held the defendants strictly liable under section 2(2) of the Animals Act 1971. The hearsay evidence was essential to that conclusion.

The defendants appealed, challenging the weight given to the hearsay evidence and the application of section 2(2), especially the meaning of “normally” in paragraph (b) and the knowledge requirement in paragraph (c).

Appeal dismissed. Lord Justice Dyson gave the judgment, with which Lord Justice Richards and Lord Justice Thomas agreed. The trial judge’s finding of strict liability under section 2(2) of the Animals Act 1971 stood.

1. The judge had correctly assessed the hearsay evidence under section 4 of the Civil Evidence Act 1995. He did not merely tick the statutory factors. He assessed Mr Wragg’s evidence, the possibility that his second statement had been influenced, its consistency with other evidence, and expert evidence that the reported account was plausible. The defendants’ inability to cross-examine the unidentified witness was material, but it did not require the evidence to be given no weight.

2. There is no rule of law that uncorroborated and untested hearsay cannot prove a central fact. The weight to be given to it is a fact-sensitive evaluative judgment. A court must be especially careful if the case depends wholly on hearsay, but must also recognise the unfairness that may result from excluding the only available evidence.

3. For section 2(2)(b), the likelihood that severe injury would result was due to the horse’s characteristic of rearing in the particular circumstances. The consequences of a rider falling onto a hard surface, or being fallen on by the horse, did not sever that causal link.

4. Following Mirvahedy v Henley [2003] UKHL 16, “normally” means conforming to the type of animal. It does not mean behaviour that occurs usually or regularly. Rearing could therefore be a normal characteristic of horses in the particular circumstances even if it was an unusual response and Ivor had no previous history of rearing.

5. Section 2(2)(c) requires knowledge that the particular animal has the relevant characteristic. That knowledge may nevertheless be established by proving that the keeper knew horses of that species normally behave in that way in the relevant circumstances. Previous conduct by the particular animal is not indispensable.

• Court of Appeal (Civil Division): The defendants’ appeal was dismissed. The court upheld strict liability under section 2(2) of the Animals Act 1971 in [2007] EWCA Civ 796.
• Plymouth County Court: Judge Tyzack QC dismissed the negligence claim but found the defendants strictly liable under section 2(2) of the Animals Act 1971.