Flack v Hudson [2000] EWCA Civ 360 (06 November 2000)

Mrs Flack was thrown from a horse owned by Mrs Hudson and died from her injuries. The horse had a known propensity to bolt near agricultural machinery. The Court of Appeal upheld liability under the Animals Act 1971, confirming that a bailee (person in possession) can sue the owner for strict liability despite both being 'keepers' under the Act.

Facts

Mrs Shirley Flack responded to an advertisement to exercise Sebastian, a horse owned by Mrs Salli Hudson. Mrs Hudson had stopped riding the horse when she became pregnant in May 1993. Mrs Flack rode Sebastian approximately three times a week until July 1993 when, while riding along a road in Norfolk, the horse encountered a tractor with a trailing sprayer. Sebastian became agitated, bolted, and Mrs Flack fell off and died two days later.

Evidence established that Sebastian had previously bolted when encountering agricultural machinery, including an incident in January 1992 when Mr Hudson was injured. Mrs Hudson had also told a neighbour that Sebastian had bolted with her and she was too frightened to ride alone. Shortly after the accident, Mrs Hudson told the tractor driver that Sebastian was frightened of farm vehicles.

Issues

First Issue

Whether a person who has possession of an animal (bailee/keeper) can maintain an action under section 2 of the Animals Act 1971 against the owner (also a keeper) of that same animal.

Second Issue

Whether the horse’s propensity to bolt near agricultural machinery constituted an abnormal characteristic within section 2(2)(b) of the Act.

Third Issue

Whether Mrs Flack had voluntarily accepted the risk of injury under section 5(2) of the Act.

Judgment

The Court of Appeal dismissed the appeal. On the first issue, Lord Justice Otton held there was nothing in the Act that expressly or by implication deprives a bailee of a cause of action against a bailor. If Parliament had intended to deny such a right, it would have expressly provided for this.

On the second issue, the court found ample evidence supporting the trial judge’s finding that Sebastian had an abnormal characteristic. The 1992 incident with Mr Hudson, conversations with Mrs Newton and Mr Custance, all demonstrated the horse’s propensity to bolt near agricultural machinery.

On the third issue, the court upheld the finding that Mrs Flack had not voluntarily accepted the risk. She was not informed of Sebastian’s specific aversion to agricultural machinery or the incident with Mr Hudson. The risk referred to in section 5(2) was the risk of injury caused by the animal’s particular dangerous characteristic.

Implications

This case establishes that one ‘keeper’ of an animal under section 6(3) of the Animals Act 1971 can sue another keeper under section 2. The owner’s protection lies in the requirement that knowledge of the dangerous characteristic must be proved and in the section 5 defences. The case also clarifies that section 5(2) requires the claimant to have accepted the risk of the specific dangerous characteristic, not merely general risks associated with the activity.

Verdict: Appeal dismissed. The claimant succeeded in his claim under the Animals Act 1971 against the horse’s owner. Judgment for the claimant in the sum of £175,000 was upheld.

Source: Flack v Hudson [2000] EWCA Civ 360 (06 November 2000)