In a recent appeal decision the High Court has thrown out a case on appeal brought under the sometimes controversial Animals Act legislation. In the case of David Lynch v Ed Walker Racing Ltd 2017, David Lynch (L) had been a stable boy employed by Ed Walker Racing Ltd (E). He had been riding a 2 year old colt in a string of 9 racehorses along a track beside a road. To the left of the string was a grassy bank. The horses became spooked by something which caused some, if not all, of them to whip around. L’s horse whipped left and then right, lost its footing and fell over. L fell off of the horse and hit his head, leaving him unconscious. L had brought a claim under the Animals Act 1971.
Section 2 (2) of the Animals Act, which has often been criticised for its tortuous use of language, states as follows:
“Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if
a) the damage so caused is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and
b) the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally found except at particular times or in particular circumstances; and
c) those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of 16”.
In the Lynch case it was agreed that sections 2 (2) (b) and (c) were satisfied. The only issue was whether section 2 (2) (a) was satisfied. The judge at the first trial had found that it was not satisfied and on that basis she had dismissed the claim. She did so on the basis of witness evidence which stated that injuries were rare as a result of a horse whipping around and that people rarely fell off a horse because it whipped. Accordingly she felt it was unlikely that an injury would be caused by a horse whipping around and that if any injury was caused, it was unlikely to be severe.
L appealed arguing that it was obvious that if a 2 year old racehorse was spooked and whipped around that some form of personal injury might happen and that if personal injury was caused as a result of the horse being spooked and whipping around, it might well be severe.
The High Court dismissed the appeal. They decided that the first judge had dealt with the likelihood of sustaining an injury when a horse whipped around. She had set out the witness evidence that she had relied on. L had not shown that her findings were not reasonable or appropriate. The judge had had a sufficient evidential basis to rule that an accident in the circumstances was not reasonably to be expected. It was relevant that the other riders had not had an accident. The High Court did agree that it appeared the first judge may have looked at the first part of section 2 (2) (a) but not the second. They said however that the difficulty was that the evidence on the likelihood of injury and the severity of the injury overlapped. The fact that a rider would usually be able to step off the horse when it whipped around and fell over, led to the conclusion that it was unlikely that a rider would suffer serious harm. Therefore, when the judge said that it was not common for a fall of this type, she may have been addressing severity, as if an injury was unlikely at all then it was unlikely to be severe. Although there were reservations about the judge’s approach, the evidence the judge had was that if an injury occurred it was unlikely to be severe.
It has often been said that the strict liability approach of the Animals Act 1971 is unfair on the keepers of animals. In particular in the aftermath of the House of Lords decision in Mirvahedy v Henley there were calls for legislative reform as it was felt that the law went too far in favour of Claimants and made the defence of any such claims almost impossible. The Lynch appeal decision serves to underline that not every case will succeed. As ever, any claims need to be scrutinised carefully. It is also important for the keepers of animals to make sure they have appropriate insurance cover.