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Clyde & Co partner and equestrian specialist, Clare Garnett, has successfully defended civil proceedings brought against a bovine farmer under Section 2(2) Animals Act and in negligence – providing a much needed and encouraging decision for farmers and defendant insurers.
A claim for personal injuries was intimated against the defendant farmer after the claimant was trampled by the defendant’s cow whilst walking her dog through a local nature reserve, accessible to the public via permissive paths. The defendant’s herd of British Beef Shorthorns were grazed on the reserve under a license agreement with the local authority.
On the day in question, the claimant entered the field where the herd were grazing and walked along the permissive path. As the field levelled off, the claimant saw a cow to the right of the path, which she estimated was about 14 feet away from her, and immediately turned around to retrace her route. The sequence of events that followed were a matter of some dispute; however, the claimant was ultimately trampled by the lone cow and sustained injury.
The behaviour of the cow before, during and after the incident was considered by expert evidence. The only area of disagreement between the experts was how the cow came to knock the claimant over – whether it was the claimant being in the path of the cow returning to the herd or the cow moving forward inquisitively and knocking the claimant over.
The claimant’s case in negligence (absence of electric fencing and inadequate signage) was dismissed. Evidence given by the defendant and a countryside officer from the local authority was accepted in that (1) they were aware of the relevant HSE guidance (2) they assessed the risks of the nature reserve including factors such as the breed of the herd, the history of the site and erecting temporary and/or electric fencing (3) an additional sign was posted when the cattle was released into the field.
Mr Recorder Bebb QC remarked that, on the evidence he had heard about the terrain of the reserved “any attentive member of the public would have realised that there were cattle present in the field shortly after entering the field. The fact that the Claimant did not see a cow until she was only 14 feet away can only be explained by the fact that her attention was elsewhere.”
Section 2(2)(a-c) of the Animals Act 1971 requires each of the three limbs to be successfully made out in order to establish strict liability. Section 2(2) provides that a keeper of an animal (which does not belong to a dangerous species) will be strictly liable for damage caused, if:
Section 2(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
Section 2(2)(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 so found except at particular times or in particular circumstances; and
Section 2(2)(c) – those characteristics were known to that keeper.
The claim fell on the construction of section 2(2)(b). Ben Bradley, for the defendant, argued that section 2(2)(b) should not apply on the basis that the cow was displaying normal characteristics, it did not act aggressively and the accident did not arise due to the cow displaying a particular (but normal) characteristic that arose at particular times or particular circumstances.
It was the claimant’s case that the presence of the claimant triggered an anxious or aggressive response as the cow returned to the herd with no regard to obstacles in its path. Counsel for the claimant, Richard Stead, argued that the cow remained in a state of high anxiety causing it to keep its head up and return to the herd with fixed intention regardless of going through or over the person or dog.
The claim under section 2(2) Animals Act 1971 was dismissed by Mr Recorder Bebb QC. Section 2(2)(b) of the Act had not been successfully made out due to the absence of direct evidence on the behaviour of the cow after the claimant had turned her back.
Commenting on the outcome of the case in an interview with Horse & Hound magazine, Clare said:
"If this case had gone the other way, it could have set a dangerous precedent; there’s always the worry it could affect ponies on Exmoor and Dartmoor, and it could have created more claims, which is why my client was determined to fight it.”
Click here to read the article in full in Horse & Hound.