Freeman v Higher Park Farm

Strict liability for damage caused by a domesticated animal requires proof that the statutory conditions in section 2(2) of the Animals Act 1971 are satisfied. Where the claim concerns the likely severity of damage, the question is whether damage of the kind actually suffered was likely to be severe if caused, rather than whether the particular incident was likely to occur.

A characteristic falls within the second limb of section 2(2)(b) only if animals of the species normally exhibit it at identifiable and predictable times or in identifiable and predictable circumstances. That is a matter for evidence in each case. A claimant who fully appreciates a risk and nevertheless exposes herself to it voluntarily accepts that risk for section 5(2).

An experienced rider was injured after a horse supplied for an organised hack bucked while beginning to canter and threw her. She claimed damages in negligence and under the strict liability provisions of section 2(2) of the Animals Act 1971.

The Mayor's and City of London County Court dismissed both claims. The rider appealed only against the rejection of statutory liability. The appeal concerned the likely severity of injury under section 2(2)(a), the evidence required to establish an abnormal or circumstance-dependent characteristic under section 2(2)(b), and voluntary acceptance of risk under section 5(2).

1. Appeal dismissed unanimously. The county court had misdirected itself on part of section 2(2), but the claimant failed to establish all the statutory conditions for strict liability. The respondent was also protected by section 5(2) of the Animals Act 1971.

2. For the second limb of section 2(2)(a), the court must identify the kind of damage actually suffered and ask whether damage of that kind was likely to be severe if the animal caused it. The inquiry is distinct from whether the particular animal was likely to cause the incident. It was self-evident that severe physical injury could reasonably be expected if a rider fell when a horse bucked as it began to canter. The reasoning in Welsh v Stokes [2007] EWCA Civ. 796 applied equally to a bucking horse.

3. Section 2(2)(b) concerns characteristics of the species. Under its first limb, the relevant characteristic was bucking, without adding the circumstance of beginning to canter. On the sparse evidence, including evidence that many horses buck, the judge was entitled to find that the claimant had not proved bucking to be abnormal among horses generally.

4. Under the second limb, it was necessary to prove that horses normally buck only at particular times or in particular circumstances. Those times or circumstances must be capable of description and prediction. An intermittent characteristic does not qualify merely because it is not continuously present. The existence of the necessary characteristic is a matter of evidence in every case. There was no evidence that horses generally bucked at any identifiable time or in any identifiable circumstances, so section 2(2)(b) was not satisfied. Section 2(2)(c) was consequently immaterial.

5. Section 5(2) uses ordinary language and should not be complicated by refinements derived from the former common law doctrine of volenti. Voluntary acceptance requires full appreciation of the risk and voluntary exposure to it. The experienced rider knew of the horse's tendency to buck, experienced a significant first buck, and then expressly chose both to remain on the horse and to canter again. She therefore voluntarily accepted the risk of being thrown and injured.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. Although the county court had erred in parts of its construction of section 2(2) of the Animals Act 1971, the claimant had not proved section 2(2)(b), and section 5(2) provided an alternative answer to the claim: [2008] EWCA Civ 1185.

2. Mayor's and City of London County Court: His Honour Judge Birtles dismissed the statutory and negligence claims on 8 February 2008. The claimant appealed only the decision concerning statutory liability.