McKenny & Anor v Foster (t/a Foster Partnership)

Strict liability under section 2(2)(b) of the Animals Act 1971 requires a causative and dangerous behavioural characteristic which is either unusual for the species or normally occurs only at particular times or in particular circumstances. The characteristic must also have been known to the keeper. Normal maternal instinct in a recently weaned cow was insufficient where the dangerous conduct—exceptional and exaggerated agitation causing escape—was neither normal for the cow or its breed nor known to the keepers. The Court of Appeal applied the reasoning of the majority in Mirvahedy v Henley [2003] UKHL 16 and dismissed the appeal.

The claim arose after a recently weaned cow escaped from a secure field, crossed a cattle grid and entered a highway, where it collided with a car. The driver was injured and her passenger was killed.

The Leeds County Court, before His Honour Judge Cockcroft, dismissed the negligence claim and the claim for strict liability under section 2 of the Animals Act 1971. The negligence issue was not appealed. The appeal concerned whether the cow’s maternal instinct and resulting escape satisfied the statutory requirements for strict liability, particularly the requirements concerning causative characteristics and the keepers’ knowledge.

May LJ delivered the leading judgment. Laws LJ and Moore-Bick LJ agreed. The appeal was dismissed.

1. The cow was not of a dangerous species within section 6(2) of the Animals Act 1971. There was therefore no liability under section 2(1). The trial judge had found the requirements of section 2(2)(a) satisfied, but the Court of Appeal did not decide the respondent’s cross-appeal on that issue because the appeal failed on the remaining requirements.
2. The Court considered Mirvahedy v Henley [2003] UKHL 16, where the majority held that section 2(2)(b) may apply to behaviour normal for the species in particular circumstances. The ambiguity in the provision was summarised in Clark v Bowlt [2006] EWCA Civ 978 as covering unusual characteristics and characteristics normally found only at particular times or in particular circumstances. The relevant characteristics must also be known to the keeper under section 2(2)(c).
3. A causal link between the characteristic relied upon and the damage is essential. It is insufficient that the animal escaped or was present on the highway. The Court adopted the approach identified in Curtis v Betts [1990] 1 WLR 459 and Smith v Ainger (unreported, 16 May 1990), and referred to Lord Walker’s analysis in Mirvahedy.
4. The characteristic must be a dangerous behavioural characteristic, even if it arises only at particular times or in particular circumstances. The cow’s normal maternal instinct after separation from her calf was neither dangerous nor causative. The dangerous and causative conduct was exceptional, exaggerated agitation resembling that of an excited wild animal. It was not normal for the cow or its breed, and the defendants had no knowledge of it.
5. The examples discussed by Lord Nicholls in Mirvahedy, including an attack by a newly-calved cow, did not alter the result because those examples involved behaviour that could properly be regarded as normal in the relevant circumstances and known to the keeper.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 173, the court dismissed the appeal against the strict-liability decision.
• Leeds County Court: His Honour Judge Cockcroft dismissed the claim on 15 May 2007. The negligence case had been abandoned at the submission stage, and the strict-liability claim under the Animals Act 1971 was rejected.