The Animals Act 1971: A guide to successfully bringing and defending claims

(upbeat music) - Hello and welcome to the latest episode of the St. John's Chambers Personal Injury Podcast. My name is Jonathan Lindfield and I am here today with Richard Stead. We're both members of the Personal Injury Clinical Negligence Teams at St. John's Chambers. And today we're going to be talking to you all about claims involving animals or perhaps better said, injuries caused by animals. - Indeed. - How are you, Richard? - I'm good, I'm good. I'm looking forward to hearing what you've got to say about this. - Oh, well, I'm sure I'm not the one that everyone's waiting to hear from on this subject, Richard, but. Okay, so let's dive straight in. I mean, I'll say probably rightly at the outset that the animals act is really tricky. We're not going to be able to touch on everything that it says and all the case law, but hopefully what this podcast will do is demystify some of the animals act and give you a roadmap into how these claims are either made or defended and the things to look out for and the sort of skeleton of how this is all put together, really. - Yeah, there's a background of a lot of judges, particularly in the Court of Appeals, saying how opaque the animals act is. And if we can lend a bit of clarity and in particular structure to the way one approaches section 22 of the act, then we will have achieved something. I certainly remember in early years, my practice having to put a damp cloth over my head when I came to look at the animals act. And then you'd get another case about a year later and have to start all over again. So it's not easy. But on the other hand, as I say, once you get the structure, it starts to become a lot easier. - Yeah, I think this act scares a lot of people off, doesn't it? So let's get into it. So we're talking about the animals act of 1971. And sort of, Richard, what is this act all about? What does it do? - Well, basically it's providing ziability in favor of claimants where an animal is dangerous. And that may fall into a number of brackets. Firstly, you may have an animal which belongs to a dangerous species. And this is covered by section 21 of the act, which provides that where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage. Now, that really impacts upon lions, tigers, things like that. One can try and stretch one's imagination, somewhat see which animals belong to an inherently dangerous species and are covered by this section. But that is very rarely brought into play. And normally one is dealing with section 22 of the act, which deals with domesticated animals, cows, horses and dogs primarily. - Okay, so pulling back just for a second, what we say is the animals act is really easy if you've got a dangerous animal. - A dangerous species, yeah. - A dangerous species, something that's not native to the UK perhaps, that's a good starting point. - Not native and is not domiciled or domesticated in the British islands. And where they have characteristics which are normally going to cause severe damage. - Okay, well, before we go any further, let me ask you this, Richard. What is sort of the weirdest animal you've ever had to deal with, either as a case of yours or the one you've defended? - Well, I mentioned ostriches and they are violent creatures when they want to be with spurs on the backs of their legs, which can go through metal sheeting. So they're quite violent, that's the worst I've had. I haven't had a lion, a tiger or an elephant, in fact. So I look forward to one of those cases if I keep working long enough. - Okay, so what we haven't said, although it's probably straightforward from the act, is that we're talking about strict liability here. So if you're injured by an animal that is dangerous under section two one, you win against the keeper of the animal. - Yes, that is right. - But as you've already said, Richard, the difficulty comes in, doesn't it, when we're not talking about animals that are sort of inherently dangerous, ones that are normally non-dangerous, as you say, cows, horses, dogs are the three main categories. - Yeah. - So do you want to start with section two, two, or should we talk about who you sue? - Well, let's start with section two, two, just to give the background that we're all working to. And I think it's just worth reading through the act. I'm sorry, it's not very exciting, but at least we start to understand what it is trying to achieve. And it says where damage is caused by an animal which does not belong to a dangerous species, the keeper of the animal is liable for the damage, except as otherwise provided by this act. So there are some statutory defences which we'll come to at the end of this talk, I expect. And then you get criteria under A, B and C. A is that the damage so caused 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 then 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. Then one goes on to see those characteristics were known to that keeper, or were at any time known to a person who at that time had charge of the animal as that keeper, servant and so on. The other point one needs to just bear in mind while we're starting to go through this is certainly the Court of Appeal in Curtis and Betts a long time ago, and it's been adhered to, has advocated that one should go through the criteria step by step. So you deal with the first criteria under A, you then go to B, you then go to C. And once you've been through those criteria, then you should end up with the answer. It's also right to say that whilst you look at them individually and separately like that, your findings in respect of B for example, as to what the causative characteristic was that caused the damage that plays into A, when you're deciding whether the damages of a kind which the animal was likely to cause, or which of course by the animal was likely to be severe. So you're looking at that question in the context of what actually happened and what characteristic was being manifested by the animal, such as you're considering in subsection B. Okay, well I think this is the problem, isn't it, with section 22, is that there's so much information in there and it makes so little sense when you take it all at once. But if you break it down into little bits, it helps you get there. - Exactly so, and probably the starting point is to say that one's got to have a keeper of the animal whom one can sue. And a keeper is defined as someone who owns or has possession of the animal and really that is the first stage to go to before you start to go through the criteria under A, B and C. - So if it's your animal, you are a keeper of it? - Yes, if I own it, I'm a keeper. If I'm a rider of a horse, I'm a keeper. And if I have cattle on my land which I feed and water, then I may well be a keeper of those animals even though I may not own them, even though I may not be the primary possessor of the cows, I may still have sufficient involvement with the animals to amount to possession of them. - So in practical terms then, if you're a claimant's listener and you're approached by someone who says I've been injured by an animal, the first step is to go and find either who owns the animal or who is in possession of them at the time. - Yes. - Very briefly, what do we do if that animal was owned by a child, say a child's horse? - Well, that is dealt with within the definition that effectively it is the parent or other person close to the child who is keeper in the place of the child. - That's it. I think that the act uses the sort of old words of the head of the household that we don't think we use anymore, do we? But that's probably the easiest way to put it. Okay, so let's say we've identified who we're going to suit. That deals with the keeper. - Yes. - So, section 2A then, the first thing we've got to establish is that the damage you suffer and for our purposes, the injuries probably. - Well, yes, it's worth saying damage may amount to property damage. So, leaving a side injury, one may have a claim for property damage as a result of the behavior of a non-dangerous species. Also, one has got a situation where we've got to ascertain what the damage is and what is caused by unless the animal is restrained. The words unless restrained is important. But on the other hand, often raise a complication for anyone coming to this act in the first instance. And my suggestion really is to ignore the words unless restrained when you're trying to understand what subsection A actually means. - Right, and so ultimately what we're looking for is that that damage, whether it be property damage or injury, was either something that that animal was likely to cause or if it was caused by that animal, was likely to be severe. - Exactly, so, what one's got to be careful here to do is understand that there are two alternative limbs to A and the claimant has got to bring his case within either the first limb of the damage is of a kind which the animal was likely to cause or second limb if damage, personal injury is caused by the animal, then that damage was likely to be severe. - Okay, so let's try and put this into a bit of context, shall we? Let's think about what's the sort of injuries that we'd be looking at that perhaps are likely to be severe if they are caused, dog bites? - Well, dog bites can cause severe injury and that was the finding in the case of Curtis and Betts where a bull mastiff bit somebody, it was said by the court of appeal to be a large dog with a large mouth and big teeth. QED damage was likely to be severe. Similarly, if you've got a cow or a heifer charging at a person and striking the person, then the damage is likely to be severe by virtue of the momentum and weight of the animal involved. So those are the kind of things one's looking at to see whether damage is likely to be severe. - And do you tend to find that more cases get through on likely to cause or likely to be severe if caused? - I don't think I really say one more than the other. In many ways, it's more obvious when it's likely to be severe because of the size of the animal involved in the particular event. But on the other hand, the first limb is sometimes easier to reach a conclusion upon because all you're trying to find is whether personal injury was likely to be caused by the characteristic that was being manifested, whether or not it's severe. So to some degree, it's easier to go under the first limb. But there are many occasions where you may have both limbs in play. - Okay, do we think that deals with 2-2-A then? We've got to establish that the animal was likely when exhibiting the characteristic. And we're gonna talk about characteristics in just a second. - What I think is worth saying before we leave it is what likely means. And to cut it short, it means reasonably to be expected under recent judgments. They've all supported that as being the definition which should be applied. - Reasonably to be expected. - Reasonably to be expected, yes. - Okay, so we've got to prove that the animal was likely to cause injury or that the injury was likely to be severe. When it is exhibiting a characteristic, now this takes us into 2-2-B. Now let's remind ourselves of what 2-2-B says. And this is really where lots of the issues and complexity comes out of this act, isn't it? Because what we're told is that the likelihood of the damage or of it's being severe, so note there, the reflection of 2-2-A was due to characteristics of the animal which are not normally found in animals of the same species or are not normally found except at particular times or in particular circumstances. So again, we've got an or. So either-- - And one has a number of negatives which really starts to make it more complicated. - Yes, and I'm sure by the end of this we'll have it all ironed out. But let's go through it then. The first, so what we have to identify is that the animal is exhibiting a characteristic. - Yes. - Pausing there, Richard, what would you say is a characteristic of an animal? Is it sort of whatever you want it to be? - Interestingly, characteristic is not defined in the act at all. A characteristic of a person or an animal is effectively a behavior that is manifested. In the case of Merba Hedy in the House of Lords, Lord Walker actually said it must refer to character or disposition as a vince by overt behavior. So that is perhaps a slightly glorified way of saying it is a behavior which may be common to the species of animal or may not be common to the species of the animal and may solely be a behavior of the particular animal with which you are dealing. And that's really what the difference is that lies in subsection B. So the first limb is considering those cases where the animal has behaved in an abnormal manner for the species as a whole. So for example, if you've got a bitch looking after puppies it's entirely normal for the bitch looking after puppies to bite somebody who comes up to look at the puppies because she's defending the puppies. If the bitch does not have puppies and is nowhere near having puppies at the time, bites a human, then that is normally abnormal behavior for dogs to just randomly bite people. But if it is something that the dog has done before or has a history of doing it over a period of time and still does it randomly, then that is a characteristic of that particular dog which is not normally found in dogs generally. And so you fall within the first limb of B. - Okay, so first limb of B, we're looking for abnormal characteristics when compared to other animals of the same species. - Exactly so. - But it goes a little bit more granular than that, doesn't it? Because for example, with dogs, we would be not comparing necessarily to dogs as a species but to the particular breed. - Yes, the subspecies effectively. - Sub species. - So you compare in the case of Hunt and Wallace that this issue arose and the comparison using the dog involved which was a collie dog was to compare it to collie dogs rather than to dogs generally because obviously collie dogs do have very different ways of behaving after being rounding up sheep endlessly and so forth than other dogs like terriers, for example. - One might say characteristics. - Characteristics even, yes, exactly that. - Yes, so I think we all know, don't we, that different dogs tend to have different behaviors. Some are more docile, some are more aggressive and so that's why you might say a particularly aggressive dog that is normally very docile might be exhibiting abnormal characteristics if it acts aggressively. So that makes more sense, doesn't it, when we're looking at abnormal characteristics. What about this second limb then? Not normally so found except at particular times or in particular circumstances. - Right, well I think I've already touched on the bitch with puppies and I think probably that is the easiest and best example of the scenario in that a bitch with puppies at the time that she's looking after those puppies may well bite people and that is a characteristic of bitches to defend their puppies and to bite if they consider it necessary to defend their puppies. So it's normal behavior for bitches at the particular time when they have puppies looking after puppies, defending puppies, call it exactly what you will, but at that time and in those circumstances. So in fact, one has this alternative of not normally so found except at particular times or in particular circumstances. So there may be a time in an animal's life when it acts in a particular way or it may just be in the circumstances of having puppies which may happen at any time in their earlier life that one's looking at. - Okay, so other examples then, because defending puppies is quite an obvious example, isn't it, in terms of you, it's an abnormal characteristic for that animal but you only find it at certain times. - Well, yeah, it's abnormal usually, but it is normal at particular times and particular circumstances. - Okay, let's go back to where we get this from. Mervaheddy. - Yes, I mean, this is Mervaheddy which really dealt with exactly what B meant because there were two different arguments being advanced by the claimant on the one side and the defendant on the other. And rather, I don't think it's necessary to go through precisely the argument. In my view, and I would say this, wouldn't I, because I was representing Mr. Mervaheddy. Mr. Mervaheddy was driving along in his motor car and several horses had broken out of a field, had barged through fencing and hedges, had gone down a track for a significant distance and then got onto a dual carriageway. And at the time of impact with Mr. Mervaheddy's approaching car, they were still countering or galloping as if frightened and trying to escape from something. So at every stage, the horses had been frightened, firstly frightened such that they escaped from the field and then subsequently frightened because they were out of their field or they were disturbed by traffic, headlights, whatever, but they were in a state of fright. And when horses are in a state of fright, they may run counter-gallop regardless of obstacles in their path. And that was a characteristic which was accepted by the expert evidence. And given that it was normal behavior for horses in circumstances where they are frightened to run without regard to obstacles in their path, then that second limb of subsection B was satisfied. I mean, you can look at cattle, you're gonna have similar scenarios. Cows looking after their young calves when they're at foot in the field, they will act aggressively to defend them. In other scenarios, when a cattle become frightened, they may charge. So if you have dogs walking with you in the field, they may become frightened of the dogs, they become aggressive and charged. So in those particular circumstances, they're acting normally for cattle and it comes within the second limb of B again. - So if in Mervaheddy, it was normal for horses, it was found that it's normal for horses to run around all the time. It wouldn't have made two to B because that would be a normal behavior at all times. - Yes, yeah. - But what made this different was that the horses were acting in that way only at the time when they had been frightened. - Yeah, I mean, the horses naturally do not run around all the time. They're standing, grazing in a field usually. So there was different behavior to the norm. And it's probably a moment to raise one of the important issues that one has to have in mind that where you have a characteristic of an animal, which is with it all the time, as you were just suggesting, then you're not going to come within either the first limb of B or the second limb of B because it's not an abnormal characteristic or a normal characteristic exhibited at particular times or in particular circumstances. It's a characteristic which is with the animal all the time. And you have this particularly highlighted in the case of a cow which stumbles, let us say, cow stumbles and falls onto the pedestrian who's walking past it and squashes the pedestrian. In that situation, the only thing that has caused the damage effectively is a stumble which is not a characteristic stumbling and then the excessive weight of the cow which falls onto the pedestrian. That is a characteristic that the cow has with it all of the time. And so it doesn't come within subsection B. - So just another quick thought experiment if you had a breed of dog which was known to be very aggressive and it was acting aggressively when it bit you and they were known for biting, might you say that's normal all the time? - No, I think that's difficult to support because the reality is it's not with them 24 hours a day because they may well bite. Like in Cummings and Granger, the very first case involving the animals act in the Court of Appeal where you have a guard dog who is aggressive when defending its territory and that's what it's there for. You do have the particular circumstances of its defending its territory but presumably your very aggressive dog is doing something similar in defending its territory because that's what the dogs defend territory. You know, whether they're Alsatians or bull mastiffs or whatever. And so they are doing it for a reason at that particular time in those particular circumstances. - Okay, good. But let's make sure that we have done what we need to do which is to tie A and B together. I think this is again, something that is often missed and is really important. Let me spell it out like this. The characteristic that you're identifying for the purposes of two, two, B must be the same one that you're relying on for the purposes of two, two, A. What I mean by that is if you are saying the characteristic of the animal, i.e. in Mervaheddy, the horse bolting across the road when it is frightened, it has to be that characteristic which is likely to cause injury or if injury is caused is likely to be severe. So you can't say the horse bolting means that that is an abnormal characteristic but it is likely to be severe because the horse has got bit teeth. - The weight of the animal and the fact it's running. Yes, absolutely. - So it has to be in exhibiting that characteristic of that it is either like-- - The case of Clark and Bolt makes it clear that there is that connection between A and B that has to be made. So it's the prime example really of while I said earlier that you've got to go through A, B and C separately and individually one after the other. You have got to have in mind the consideration of A is dependent upon the consideration of the characteristic within B and likewise when you're considering C, you have to be taking into consideration the characteristic which is being used under B because C is effectively a consideration of whether the keeper knew of the characteristic of the animal at the time the injury was caused. So you've got to ask firstly, what was the characteristic that we found under B and then did the keeper know of that characteristic? So a claimant has got to satisfy C after they dealt with A, A and B. - Does the keeper have to know the characteristic in that particular animal or just animals of that species/sub species? - They have to know the characteristic of the animal specifically if you are dealing with an abnormal characteristic arising under the first limb of subsection B. If it arises under the second limb of B in that it's a characteristic normally found in animals at particular times or in particular circumstances, then if the keeper knows that horses or dogs or cattle, whatever, have that characteristic normally in the particular circumstances and at particular times, then that is sufficient even if they've never seen their animals behaving that way before. - So it'd be no defense for that keeper to say, I know that horses bolt when they're scared, but mine doesn't. - Yeah, absolutely right. One of the critical things is if you're dealing with a first limb of B, namely an abnormal characteristic for the species, then a claimant has got to be able to prove that the animal has acted in the same way on a previous occasion to enable the claimant to say you the keeper knew of this characteristic because it had happened at least once, if not numerous times before. - Okay, so take a breather. There is the difficult bits of the animals act all put together. Two to A, likely to cause injury or if it's caused it's likely to be severe. B, characteristic is either abnormal for animals of the same species or normal for that animal, but only found at certain times or in certain circumstances. And C, that characteristic was known to the keeper of that animal. - Yes. - So all of it is tied together by an animal exhibiting characteristics. Where do we get evidence about that? - I would advise clients with a defense or claimant to get expert evidence from animal behaviorists, be they equine experts, be they experts in dogs or cattle or whatever. Because if you're trying to say that there is an animal or a species has a particular characteristic, then you need an expert to be able to tell the court that the species has this particular characteristic in these particular times and circumstances. Or to say the species doesn't have this characteristic at all. It's abnormal for the species, then you know you're playing within the first limb of B rather than the second limb. - Does the expert have to see the particular animal? - Not necessarily, no. I think in most cases, the experts don't necessarily see the animal, but quite often in horse cases, they may ride the animal to see how the animal behaves. But it's that critical expert evidence as to what are the characteristics of the particular species you're dealing with and what kind of characteristic was the animal in this particular case manifesting. And there are a number of occasions where acting for claims, I've come up short. And indeed when acting for defendants, we've been able to show that there is no real evidence as to what the characteristic was. If you've got a cow charging at you in a field, it's quite difficult in some ways to say what that animal is doing, why it's behaving as it is, what characteristic it's manifesting. You may find yourself desperately searching for some calves nearby to say, oh, they're trying to defend calves. Then if you can't find any calves in the field, why was it doing it? Was it doing it out of aggression to protect itself? Or due to anxiety? And it's quite easy for cases to fall down for lack of evidence about what the characteristic is and that it is indeed a normal characteristic or an abnormal characteristic. - Okay, and often, of course, cases can have all sorts of values and the lower the value is, the less likely you are to get that expert evidence at an early stage. Have you got any tips about where else people might look in order to get some steer on what is normal? I mean, for dogs, you might look at the Kennel Club or just Google the breed. - Yes, yes, yeah. I mean, certainly you can get information online about whether the animal is docile normally or whether there are certain types of behavior one can expect. And to some degree, I mean, one can chance one's arm in some cases to say that a court knows that a bitch may bite while it's looking after puppies, given there's so much exposure to that particular example. And likewise, there may be other cases where the court will know from documentation published by the NFU or whoever that cows with calves at foot will act defensively of those calves. But even if you got that knowledge, you've still got to prove that they were actually acting under that characteristic at the time of your accident. - Okay. Should we try and just run through a very quick example to try and put all of this into context? - You can try it. - Let me think up some facts for you, Richard. Okay, so I am a claimant. I am on a country ramble. I'm walking through a field. And let's say I have my dog with me. And I walk into a field. I don't see anything in the field. As I'm walking through the field over the brow of the hill, come a load of cows that charge at me and trample me. - Yes. Well, you're in exactly the classic scenario of trying to find out what the characteristic is there. The starting point is to get as much evidence about actually what happened and what was actually in the field by way of livestock. And then you can start to postulate some characteristics that might have been manifested in with those animals. But again, it boils down to identifying the characteristic. You had a dog with you. So that may well explain why the cattle charged you because they were frightened by the dog or they were feeling aggressive towards the dog. And if they're being aggressive towards the dog, then they may be charging at the dog and strike you regardless because you were in their path, which is all part of the manifestation of the characteristic. So I think that's the kind of line one would seek to go. Having said that, I've certainly come a cropper in one case where a cow took out a lady who was walking her dog. The dog was on the lead and there were no calves around and the postulation was that she was anxious, if not frightened by the presence of the woman, but the judge said, "Well, I can't really see any evidence of that particularly." And I had slightly lukewarm expert assistance at the time as well. So it raises a common problem. - So step one is always just evidence gathering, work out what's happened, what were you attacked by? What was the animal? What was going on at the time? And then start searching for characteristics. - And get your expert evidence. - And get your expert evidence. Okay, so if you can establish all of those things, strict liability, thanks very much. I win. - Strict liability. You win subject to, as I think I suggested earlier, the statutory defences, which- - There is something for defendants in this, is there? - Right, there is, and there is no doubt the courts have been concerned over the years about applying strict liability under the Animals Act. I think some judges have a view that it's gone too far, the law, and certainly following Merver-Headie. And one can see that in the case of Turnbull and Warriner that there's a very critical judgment within that case. And that has caused there to be a focus upon the statutory defences. And the statutory defences are used a much greater degree now, I think, than they were. And perhaps the threshold of establishing the defences has dropped to some degree in order to counter the perceived unfairness of the strict liability that can be imposed upon a animal owner who has themselves done absolutely nothing wrong. They haven't been negligent. They are just strictly liable under the terms of the Act. And so one comes to the statutory defences. And if we start with Section 5.1, I'm sure you're going to tell us about it. - Yes, Section 5.1, a person is not liable under Section 2 of the Act for any damage which is due wholly to the fault of the person suffering it. So it's all your own fault. You can't blame anybody else. So for example, if you kick a dog and it bites you back, you've deserved it. - Yes, I mean, the critical word in this section is wholly. So do you wholly to the fault of the person suffering it? And one can have significant arguments about whether the claimant is wholly at fault or only partially at fault. So for example, if one just takes the cattle being in a field with calves out with a footpath going through it, one can wholly legitimately say that the farmer is at fault there. And so Section 5.1 could never be satisfied because one can't say that the claimant was wholly at fault in the circumstances of walking on a public footpath, even though she might have known that there were some cattle in there. - And that's it, isn't it? To be clear, this isn't a sort of contributory negligence apportionment of liability argument. This is all or nothing. - All or nothing. But that it's worth just reminding everybody that Coneg is still relevant to the Animals Act. So even if one can't apply Section 5.1, contributory negligence is still available to defendants to argue. - Okay, let's move on. Section 5.2, second sexuality defense. A person is not liable under Section 2 for any damage suffered by a person who has voluntarily accepted the risk thereof. Help us break that down, Richard. What does it mean if someone has voluntarily accepted the risk of being injured by an animal? - Well, the subsection was looked at by the Court of Appeal in Cummings and Granger and what they said has stood the test of time. Where they said the defendant must show, firstly, that the claimant fully appreciated the risk and to exposed him or herself to that risk. Now, I mean, one can often perceive as a risk. Take, for example, the case of Goldsmith and Patschkott, where the rider of the horse, which she was trying out prior to possibly purchasing the horse, reared up and reared up in a very aggressive way such that the rider, who was very experienced and was trying to ride out the rearing, fell off and she was then stamped on her face and suffered very serious injuries. She said, look, I know that horses can rear. I know that they can buck, whatever. But I never anticipated riding a horse which bucked and reared with this severity. Court of Appeal said the fact that you didn't expect the severity is not to the point that the fact is you knew of the risk of the horse bucking and rearing and therefore you appreciated the risk. Now, that may, to some degree, ignore the word fully of the claimant should fully appreciate the risk. So probably in the definition should be slightly altered following Goldsmith and Patschkott to simply the claimant appreciated the risk and providing somebody riding a horse does know that horses can buck and can rear. Then the defense is open against those claimants. - Let's very briefly then talk about our cow scenario. If I'm about to walk into a field and I know that cows charge to defend their young and I see cows with young in a field and I walk into the field and I'm trampled. The Section 5-2 bite. - Well, I think it may well do. The question is whether you know that the calves are young enough. If you know they are very small calves then yes, and you know that the cows may attack to protect their young calves, then Section 5-2 seems to me applies. If you've got calves which are six months old where there may still be the maternal bond but that maternal bond may not be known to the walker who's gone into the field and the length of that maternal bond is not known to them, then it's more arguable. So these are issues that can be argued for quite a long time. - So sort of the more familiar you are with animals or those particular animals, the more likely you are probably to know of the risks associated with them. - Yes, I mean, I think one other comment that's been made by Lord Justice Jackson was that if the claimant knowing of the risk which subsequently eventuates, proceeds to engage with the animal, his or her claim under the act will be defeated. So one has this issue of are you engaging with the animal? So can one say that somebody is engaging with the cows, with the calves, just by going into the field, particularly if you're walking around the outside of the field and trying to avoid them? In the particular case, Lord Justice Jackson was considering there, it was where a horse was involved in a yard and the claimant didn't go near the horse, but the horse came towards her, whereas if she had been actually going up to the horse to engage with it and the acts occurred, her having engaged with it, then section five two would apply. - Okay, all right. And one very important qualifier to this defense, isn't it, is that if you are interacting with the animal as a result of your employment, you will not be taken to voluntarily and have accepted the risk, presumably, because there's no longer any voluntary element you're being told to do so by your employer. - Absolutely, section six five makes it plain. Interestingly, it says, "Where a person employed as a servant "by a keeper of an animal incurs a risk, "incidentally his employment, "he shall not be treated as accepting it voluntarily." So there is a certain amount of discussion about who is a servant. And I think it's fairly straightforward that a servant means an employee, but outside of that, who else might it involve? So there are situations where one can argue about that, but I'm not going to go there at this stage. I think one quite good case worth mentioning when talking about the statutory defenses is the case which involved a dog where someone in the pub stopped the landlord's dog running out of the pub into the road outside and stopped the dog by grabbing the dog between his two legs. The dog then proceeded to bite this customer who grabbed hold of the dog. And the court found that, after evidence, obviously, that the person in the pub who grabbed the dog knew that dogs would bite if they were, or could bite if they were restrained by people. Therefore, he appreciated the risk. He exposed himself to that risk by grabbing hold of the dog and holding it to stop it go outside. Likewise, under section 51, the court found that it was due wholly to his fault by grabbing the dog and holding him as he did. And that's the case of Presky and Sutcliff, which deals with that. But it's quite a good example how a claimant can come unstuck in some pretty ordinary circumstances. - Absolutely. Well, I think there are a number of other sort of defenses under section five. We probably don't need to cover them all unless there are any others, Richard, you think that we ought to cover before we... - Well, I... - I think those are the two most often encountered. - They are. Those are the two critical ones. And I don't think it's... certainly I have very rarely come across the other defenses in the normal run-of-the-mill animals act cases. - So the theme of all of this is really evidence, evidence, evidence, isn't it? Get expert evidence, evidence of what happened, work out which particular animal you're talking about and what characteristics they are exhibiting. And the characteristic really is the starting point for all of that. And get your damp cloth, put it over your head and go through the structure of the statute. And if you go through this structure, one by one, you'll get to the answer at the end. - And then if you get stuck, you can ask Richard Stead. - Exactly. You're very, very welcome. - Well, I think that probably wraps up our summary of the animals act 1971. I hope that anyone listening is leaving with more knowledge than they started with. And hopefully that has helped to demystify the process. Thank you very, very much, Richard, for helping us with all of your expertise about the act. - Thank you, Jonathan, I enjoyed it. - And it leaves us with that eternal question, to be or not to be interested in the animals act 1971. That is equestrian. - Oh, God. - Well, thank you everyone for listening to this episode of the Personal Injury Podcast from St John's Chambers. Keep subscribing and look out for future episodes to come. Thank you very much for listening.