STRICT LIABILITY

Strict Liability



Strict Liability

The vast majority, if not all, of you will have heard some rather disturbing stories in the press or from friends or colleagues about horse owners or 'keepers' having to pay compensation for damage caused by their horse to a third party or a third party's property in circumstances in which there has been no evidence to indicate that the keeper acted unreasonably or carelessly in their efforts to prevent the damage occurring. This type of 'strict liability' case does indeed exist and there will undoubtedly be some truth in the stories you have heard. However, it is a myth to say that there is no defence to cases of this type, as the Court of Appeal has reminded us very recently.

Animals Act 1971

These strict liability cases are brought under the Animals Act 1971 and the rules under the Act operate in addition to the ordinary principles of common law negligence. For domesticated animals, including horses, liability under the 1971 Act turns on the complex provisions of section 2(2). The courts have struggled over the years to determine the meaning and scope of the section as it is so inadequately drafted.

Section 2(2) of the Act states as follows:

“2(2)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-

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

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 so found except at particular times and in particular circumstances; and

those characteristics were known to that keeper or were known to a person who at that time had charge of the animal as the 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 sixteen.”

None of you should feel in any way embarrassed if you have had to read that section several times before acquiring a vague idea as to its meaning. Indeed, if you have given up trying to extract any logical meaning from it, that too is understandable. I have fought several Animals Act liability cases to trial only to find on the day of the hearing that even my opponent, and sadly therefore his paying client, have little understanding of the operation of this important section of the Act.

Section 2(2), for those of you who are brave enough to read on, sets out three requirements that a claimant must satisfy in order to establish strict liability against the animal's keeper, subject to the availability of three statutory defences which I shall address below.

1.Kind of Damage

Due to the size and strength of horses ...