David Boyle successfully represents Defendants in appeal, striking out claim under the Animals Act 1971.

The owners of land where horses were stabled were not ‘keepers’ of those horses for the purposes of the Animals Act 1971, notwithstanding that they provided ad hoc services in respect of their upkeep and stabling.  At the time of the accident, the horses were in the possession of the Claimant and the pleaded strict liability claim under the Act would remain struck out. 

Article: 

The Claimant kept two horses stabled at the Defendants’ premises.  The Claimant routinely turned them out in the morning and brought them in at night, but the Defendants maintained the land, the fences and paddocks, and would bring the horse in from time to time as required.  The Claimant suffered facial injuries as she was bringing in her horses. On the day in question, the Defendants had been using a tractor at the top of the big field and the Claimant’s case was that the horse was spooked by the tractor and bolted.  

The claim was pleaded on the basis of negligence, the Occupiers’ Liability Act 1957, and the Animals Act 1971 (which would, of course, give rise to a strict liability on the Defendants’ part).  The Defendants denied that they were keepers for the purposes of the Act and applied to strike out that aspect of the claim and/or sought summary judgment on the issue under CPR24.  The District Judge struck out that aspect of the claim.  The Claimant appealed, and HHJ Glen gave permission to do so.  There was no direct authority on the point. 

The Claimant argued that because the Defendants were in occupation of the field and offered stabling for the horses, they were potentially keepers for the purposes of the Act, and that such matters should be resolved at trial.  In particular, the Claimant relied on Smith v Ainger 1990 WL 754371 as authority for the proposition that there can be two keepers of an animal at any given time (in that case the father was walking his son’s dog).  Moreover, Flack v  Hudson 2000 WL 1675231 was authority for the proposition that one keeper could sue another (the rider of a horse could sue the owner).  Doolan v Cornall [2001] CLY 324 was cited as a case where the defendant, which was simply an occupier of the field, was not a keeper. 

The Defendant noted the parallel but not directly relevant cases of R (Haynes) v Stafford Borough Council [2006] EWHC 1366 (Admin) and R (Arthur) v RSPCA [2005] EWHC 2616 (Admin), as requiring material control over the animal before being deemed responsible for it, and noted that section 6(3)(a) of the Act uses the present tense, and thus requires current possession, not immediately extinguished possession.  The full text of section 6(3) is this (emphasis added):

(3)Subject to subsection (4) of this section, a person is a keeper of an animal if—

(a) he owns the animal or has it in his possession; or

(b) he is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession;

and if at any time an animal ceases to be owned by or to be in the possession of a person, any person who immediately before that time was a keeper thereof by virtue of the preceding provisions of this subsection continues to be a keeper of the animal until another person becomes a keeper thereof by virtue of those provisions.

The appeal was heard by HHJ Brownhill in Winchester County Court.  

Held: At this interlocutory stage, it was important to take the Claimant’s case at its highest, but even there the Defendants were not in possession at the material time.  The starting point was the wording of the Act, the use of the present tense, and the concluding line of s.6(3).  The Claimant was the owner of the horse, and had it in her possession.  The Defendants did not.  The Doolan case involved the potential liability of the farmer to a third party, not the owner.  Whilst there might be cases (e.g. a stablehand leading a horse) where the rider might be in possession vis-à-vis the stablehand and vice versa, this was not such a case: the Claimant was present and had physical control.  The appeal would be dismissed and the claim under the Animals Act 1971 would be struck out.  

Analysis: 

1. There does not appear to be any previous authority on this point.  That might well reflect the wording of the Act and the inherently unlikely set of circumstances which occurred. 
2. The Act is clear in its wording: current possession is required, unless the animal has been abandoned. 

3. There is a potentially interesting circumstance where two people are keepers at the same time and owe duties to each other, but such a case would be very fact specific. 

   David was instructed by Abigail Jennings at DWF