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Amendments to the Animals Act: Impact on Liability
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Parliamentary members, countryside organisations, the CLA, equine related businesses and DEFRA have all been involved in campaigning for clarity over the interpretation of section 2.(2) of the Animals Act 1971, since the legal landscape changed in 2003 when the law lords ruled on the case of Mirvahedy v Henley.
Over the last 6 years it has been commonly understood, based on the Mirvahedy ruling, that keepers of animals would be strictly liable under the Act for damage caused to third party persons and property, even in the absence of negligence.
Many commentators on the issue have stated that as a result of the legal precedent set in 2003, equine businesses and riding schools suffered as a result of prohibitive insurance premiums and concern of owners and managers that they would be faced with litigious action even where all reasonable care had been taken.
Whilst Mirvahedy was a landmark case, in practice, case law has not always followed precedent from Mirvahedy and subsequent rulings have begun to dismantle the view that owners of non-dangerous animals are always strictly liable. It is important to note that there was not unanimous agreement upholding Mr Mirvahedy’s claim, but a majority of 3 to 2 and Judges presiding over subsequent cases have made reference to comments made by Scott LJ, one of Lords ruling in favour of the defendant, that courts should focus on the ‘likelihood’ test. He felt that the damage caused to Mr Mirvahedy was not likely, nor likely to be severe if it did occur, and on this basis felt the claim should have failed.
This ‘likelihood’ test would form the basis of the change to the wording under s2.(2) of the Act if the recent DEFRA consultation is implemented. The change would concentrate on the owner’s knowledge of the animal’s characteristics and its likelihood to cause damage. Thereby creating liability to the owner for damage caused, only if it was reasonably likely/foreseeable at that time.
The proposed new wording (in bold) would find the keeper of the animal liable for damage if:
(2)
(a) the damage 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 damage was due to an unusual or conditional characteristic of the animal; and
(c) that characteristic, in the case of an unusual characteristic, was known to that keeper…
(3) A characteristic of an animal is unusual if it is not shared by animals of that species generally.
(4) A characteristic of an animal is conditional if it is shared by animals of that species generally, but only in particular circumstances.
(5) Subsection (2):
(a) applies by virtue of a conditional characteristic only if the damage was caused in the particular circumstances by reference to which the characteristic is a conditional characteristic; and
(b) does not apply by virtue of a conditional characteristic if the keeper of the animal at the time when the damage was caused shows that there was no particular reason to expect that those circumstances would arise at that time.
It would seem that had this wording been in place in 2003 it would have affected the outcome of the Mirvahedy case. Nevertheless, the law has moved on since Mirvahedy and subsequent case law already seems to have established a forseeability test in the original wording of the Act, which has proved successful as a defence for animal owners against third party liability claims. However, the new wording will provide clarification on this section of the Act by introducing a statutory forseeability test, which should strengthen the position of animal owners and their Insurers in defending claims where the appropriate level of care has been taken and where there is no evidence of negligence.
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