DEFRA - Changes to the Animals Act 1971 to clarify the application of strict liability to the keepers of animals

THOMPSONS SOLICITORS’ RESPONSE - June 2009

About Thompsons

Thompsons is the largest and most experienced claimant personal injury firm in the UK with a network of offices in England and Wales and the separate jurisdictions of Scotland and Northern Ireland.

We have a specialist animals claim unit and are currently running over 100 cases.

The Animals Act and the proposed amendments

We do not intend to respond in detail to the questions in this consultation. We agree that there is a case for amending section 2(2)(b) of the Animals Act 1971. However, we do not agree with the proposed amendments.

S2(2)(b) has proved problematic and has led to costly litigation. There is conflicting case law. It is already necessary for claimants to have to prove that an animal has certain characteristics the keeper should have been aware of in order to succeed in their claim. As a result the Act has become almost unusable in compensation claims for injured people.

Unless the Act is amended to impose strict liability on the keepers of animals then the uncertainties will remain and the innocent injured will continue to face an uphill struggle to secure compensation in the face of aggressive and well funded counter litigation by defendant insurers.

The proposed amendments make the Act more complicated and more likely to lead to such litigation to clarify its meanings. They will not remove the need for a claimant to prove that the behaviour of the animal was normal or for the keeper to prove that it was conditional on the circumstances.

We do not in fact think that the amendments would have made any difference in Mirvahedy v Henley since there was nothing unusual or conditional about the behaviour of the horses after they had been startled (whatever the circumstances in which they were startled). Horses are prone to do anything when startled.

We acted for a postal worker who was attacked by an Alsatian-cross. There was no evidence of previous aggression. The dog was a cross-breed. How is the character of the species determined in such circumstances?

Insurance industry

There has been some powerful lobbying by the equestrian insurance industry since Mirvahedy. The Country Land and Business Association (CLA) and British Horse Society (BHS) sought to represent Mirvahedy as part of a so-called compensation culture and tried to get the Compensation Act 2006 amended so that owners of “normal” animals behaving “normally” are not liable for the injuries those animals cause to people.

When they failed they turned their attention on to the Animals Act. The campaign to have the Act amended so as to explicitly limit owners’ liability is part of the insurance/defendant driven agenda that the cost of personal injury claims is too high.

The insurance industry told Horse and Hound magazine on 8 December 2008 that it was looking for a “suitable substantial case with which to overrule the Mirvahedy case” and Simon Machaness, director of THB Equestrian Group said: "Anything that helps reduce the legal liability of the assured or the horse owner has to be of benefit," but could not say that such a move would reduce premiums.

This is no surprise. The insurance industry consistently portrays the costs of personal injury claims as being responsible for higher premiums, yet refuses to be drawn on whether reduced costs of litigation will reduce premiums.

Insurers impose high premiums on equestrian businesses or refuse them insurance altogether for the simple reason that, as one insurance industry insider said, they would rather insure roofing contractors to lay flat roofs using bitumen and blow torches than insure riding schools. Quite simply, equestrian accidents are highly likely to result in serious injuries.

Insurers are unlikely to take a softer approach or on premiums simply because riding stable owners are only liable for those serious injuries when the horse displayed “unusual characteristics”.

Any animal has a tendency to behave dangerously. The only way to clarify the law is for strict liability to apply in all animal cases, regardless of the characteristics the animal displays in the circumstances.

Owners should be responsible for their animals. If the injured party is in some way to blame for the accident, then a solicitor will advise whether the case is likely to succeed. But the principle should be that the owner of the cow that attacks someone on a right of way or the horse that bolts due to the young rider being unable to control it should be liable to the injured person.