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FREE BOOK SAMPLE: Knowledge of the Animal’s Characteristics: S.2(2)(c) Animals Act (from 'A Practical Guide to Personal Injury Claims Involving Animals' by Jonathan Hand)

05/10/17. Paragraph (c) of s.2(2) is concerned with the keeper’s knowledge of the animal’s characteristics as identified under paragraph (b). It requires either actual knowledge of the relevant characteristics on the part of the keeper, or actual knowledge on the part of another person which is imputed to the keeper in two limited situations, as explained below. The requirement of knowledge of the animal’s dangerous characteristics is derived from the scienter action under the old common law rules, which required knowledge of the animal’s propensity to cause the damage. It seems that where necessary it would be appropriate to refer back to the common law and the cases on knowledge decided under the old rules for assistance in applying paragraph (c).1

In practice, however, the determination of whether paragraph (c) is satisfied tends to turn more on evidential matters than on the legal interpretation of the wording of the paragraph. In this sense, paragraph (c) is rather more straightforward than the previous two paragraphs of s.2(2).

The significance of paragraph (c) as a limit on the scope of strict liability was emphasised recently in Goldsmith v. Patchcott [2012] EWCA Civ 183.2 Although the policy reasons for imposing a requirement of knowledge are clear (i.e. it is because a keeper has chosen to keep an animal in the knowledge of its dangerous characteristics that he or she should be responsible for any damage which results from those characteristics), from a claimant’s perspective it can sometimes seem like something of an evidential lottery. In order to prove knowledge on the part of a keeper, a claimant frequently has to rely on evidence about that knowledge which can only come directly from the keeper (i.e. the defendant) or from someone with experience of the animal in question who will often have some connection to the keeper. It may therefore be difficult for a claimant, at least at an early stage of investigation, to identify whether or not the keeper is likely to have the relevant knowledge. A potential defendant may well not volunteer evidence about this; and other witnesses may be unwilling to assist if they have still have some connection with that defendant. As mentioned in Chapter 3 above in the section dealing with the definition of a keeper, for claimants the ability to prove knowledge is an important consideration when deciding on whether to bring a claim under s.2(2) of the Act and on the identity of the defendant(s) where there is more than one keeper.

It is convenient to deal first with who must have knowledge of the relevant characteristics, before turning to consider what knowledge is required to satisfy paragraph (c).


Who must have knowledge of the characteristics?

Paragraph (c) requires that the relevant characteristics:

  • Were known to the 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 the household and under the age of sixteen.

The first of these three provisions is straightforward. It refers back to the start of s.2(2) which states that “a keeper of the animal is liable for the damage” caused by an animal. So there can be more than one keeper of an animal, and knowledge on the part of the keeper against whom the claim is brought is required.

The other two provisions allow actual knowledge on the part of someone else to be imputed to the keeper. In these two situations the keeper is fixed with knowledge, even if he or she has no actual knowledge of the relevant characteristics.

The second provision applies to someone who both (i) had charge of the animal and (ii) did so in their capacity as an employee of the keeper at the time that person acquired the knowledge of the relevant characteristics.3 What amounts to being “in charge” of an animal is not defined in the Act, but would seem to denote an element of close control which is more than transient. The time at which the knowledge is acquired, and is imputed to the keeper, does not have to be at or immediately before the time of the claimant’s injury. It seems clear that it would not matter if, by the time of the claimant’s injury, the employee was no longer in charge of the animal or indeed had left the keeper’s employment altogether.

The third provision applies to someone who (i) is also a keeper of the animal, (ii) is a member of the household of which the other keeper (to whom the knowledge is imputed) is the head, and (iii) is under the age of sixteen. Thus, outside this quite narrowly defined situation, relevant knowledge on the part of members of a family or household will not be imputed as a matter of law to a keeper who is a member of the same family or household, and will have to be proved. In practice, this might of course not be very difficult to prove by inference alone. Under the old common law rules there was authority for a presumption to this effect in certain circumstances, which would seem still to be applicable.4

North makes the point that where an animal is sold and the previous keeper parts with possession, the previous keeper will no longer have any liability under s.2(2). But the previous keeper may have knowledge of the animal’s dangerous characteristics which he or she chooses not to pass on to the new keeper. No liability can attach to the new keeper in this situation unless and until he or she acquires knowledge of those characteristics. A claimant who was injured during this time would thus have no recourse under the Act against either the previous or the new keeper.5


What knowledge is required?

It is clear from the wording of paragraph (c) that actual knowledge of the relevant characteristics is required. Thus a claimant cannot seek to get around any deficiency in the keeper’s actual knowledge by relying on constructive knowledge (i.e. knowledge which is presumed by law on the basis that it could have been obtained with the exercise of reasonable care).6 So it is not enough for a claimant to say that a keeper ought to have known of the dangerous characteristics of the animal in question.

The question of what knowledge is required to satisfy paragraph (c) is best considered by reference to whether the relevant characteristics relied on by the claimant relate to the first or the second of the two limbs of paragraph (b). As a general proposition, it is usually easier to prove knowledge of characteristics which relate to the second limb of paragraph (b) than those which relate to the first limb. This is something that claimants need to have in mind when considering how to formulate a claim under s.2(2) and specifically the characteristics relied on for the purpose of paragraph (b).

 

Knowledge where the first limb of paragraph (b) is relied on

Where characteristics under the first limb of paragraph (b) are relied on, it is necessary to show knowledge of the animal’s characteristics which are abnormal for its species in general. For example, the horse in Flack v. Hudson [2001] Q.B. 698 which (unlike horses generally) had a propensity to be frightened and take off when it encountered agricultural machinery. The best evidence is likely to be one or more similar incidents in which the animal has behaved in the same way and someone has been injured. It will also of course be necessary to show that the keeper was aware of the incident(s) either at the time or learnt of them prior to the subsequent incident which forms the subject of the claim. In Flack there had been a similar incident in which the horse took off on coming across a large agricultural machine. The defendant was present at the time, and her husband who was leading the horse was dragged and suffered a broken leg. Not surprisingly, the trial judge regarded this incident as being of “the greatest significance”.

But knowledge of previous incidents which demonstrate the animal’s abnormal characteristics may also be sufficient, even if these did not result in any damage. In Wallace v. Newton [1982] 1 W.L.R. 375 there was evidence of a number of previous incidents when the horse had shown its unpredictable and unreliable behaviour, even though it appears that no one suffered any injury as a result. Nonetheless, knowledge of these abnormal characteristics arising from the previous incidents involving the horse was sufficient to satisfy paragraph (c).

The absence of any previous incidents demonstrating the animal’s abnormal characteristics (or at least any incidents of which the keeper is aware) will though be fatal where a claim is brought under the first limb of paragraph (b) (it may also present difficulties in relation to other aspects of s.2(2)). This is illustrated by Dennett v. Wain (18 March 2004, Preston County Court: unreported) in which the defendant’s horse, which she was loose-schooling in an indoor arena, suddenly jumped over a gate to the arena and landed on the claimant, who was injured. The claimant alleged that the defendant had cracked a whip and that it was this which caused the horse to jump out of the arena, but this allegation was rejected. Having regard to the expert evidence, the judge concluded that the horse must have had an abnormal propensity to behave in this way, such that the first limb of paragraph (b) was satisfied. But there was no evidence that the horse had ever behaved in this way before. The claim under s.2(2) therefore failed because paragraph (c) was not made out.


Knowledge where the second limb of paragraph (b) is relied on

Where characteristics under the second limb of paragraph (b) are relied on, it is necessary to show knowledge of what are normal characteristics for the species at the particular times or in the particular circumstances when the damage was suffered.

This makes an important difference, as compared to a claim where characteristics under the first limb of paragraph (b) are relied on, because a claimant does not need to rely on previous incidents involving the animal (in the way outlined in the previous section) in order to prove the necessary knowledge under paragraph (c). Instead, the requirement of knowledge may be made out by showing that a keeper knows that in general animals of the species normally behave in a certain way at the particular times or in the particular circumstances when the damage was suffered.

Welsh v. Stokes [2007] EWCA Civ 796 is authority for this proposition, although knowledge was established on this basis in previous cases, including in Mirvahedy v. Henley [2003] UKHL 16. In Welsh the relevant characteristic was rearing in circumstances where the horse did not want to go forward and the rider lacked the necessary to skill to control it. The question arose about how knowledge on the part of the defendant keepers should be proved. The trial judge found that paragraph (c) was satisfied based on their knowledge, as experienced keepers of horses, of the behaviour of horses in general, i.e. that it was normal for horses to behave in this way in these particular circumstances. The Court of Appeal rejected the defendants’ argument that the necessary knowledge can only be proved by showing that the keeper knew the particular animal had previously behaved in that way, and that knowledge of the behaviour of the species in general was not sufficient to satisfy paragraph (c). Dyson L.J. said this at [71]:

I do not see why a keeper’s knowledge that a horse has the characteristic of normally behaving in a certain way in particular circumstances cannot be established by showing that the keeper knows that horses as a species normally behave in that way in those circumstances. … It makes no sense to require a keeper, if aware of that general characteristic, to have some additional and more particular knowledge.”

There are two important practical points that follow from this. First, a claimant can expect to find it easier to establish knowledge on this basis where a defendant is experienced in keeping animals of the species in question than where a defendant is not. As Lord Scott put it in Mirvahedy at [119]: “a professional keeper of animals will have a more extensive strict liability than an ignorant amateur.” 7

Second, there are though some limits on the assistance that this approach to proving knowledge may provide to a claimant. For the more unusual the characteristic the more difficult it may be for the claimant to establish knowledge based on a keeper’s general knowledge of the species; and a defendant may say that, notwithstanding some experience with animals of the relevant species, he or she has no knowledge of the relevant characteristic. Thus in Smith v. Harding (26 November 2013, Manchester County Court: unreported), where the claimant was injured when the defendant’s horse kicked out as she went to clip its head, the claim failed under paragraph (c). It appears that the defendant had some experience with horses but his evidence, which the judge accepted, was that he had never experienced a horse kicking out when about to be clipped. The judge made the point that, whilst it is no doubt true that all horsemen know that all horses will kick in some circumstances, that was not the test. The question was whether all horsemen know that all horses will kick out in the particular circumstances pertaining in that case. Having accepted the defendant’s evidence that he had never experienced a horse kicking out when about to be clipped, the necessary knowledge under paragraph (c) was not established.

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1See Charlesworth & Percy on Negligence (13th Ed.) at para. 14-21 and the cases referred to at paras. 14-22 to 14-31.

2See Jackson L.J. at [41]-[43].

3See Wallace v. Newton [1982] 1 W.L.R. 375 in which knowledge on the part of the head man in charge of the defendant’s horses was imputed to the defendant (the judge also found that the defendant had actual knowledge, on the basis that it was inconceivable that her head man would have failed to tell her about the horse in question being unreliable and unpredictable in its behaviour before the claimant’s accident).

4See North, Civil Liability for Animals at paras. 2.119 to 2.121.

5See North, Civil Liability for Animals at para. 2.17. The only exception would be where characteristics under the second limb of paragraph (b) are relied on, and the claimant can establish knowledge based on the new keeper’s knowledge of the characteristics of the species in general (see below).

6See Hunt v. Wallis [1994] P.I.Q.R. 128 per Pill J. at page 140.

7In Mirvahedy the defendant keepers were described as experienced horse owners and knowledge was established on this basis. See also, for example, Goldsmith v. Patchcott [2012] EWCA Civ 183 where knowledge was established on this basis.