Goldilocks and the three possible judicial findings relating to particularity under s.2(2) of the Animals Act 1971: too little, too much and just right

It is nothing new that insurers, judges and lawyers should grapple with the Animals Act 1971 (“the Act”). The drafting of the Act has been referred to, uncharitably by judges, as “cumbrously worded”; “opaque” and “obscure”. Much of the tension in recent reported case law has related to the degree of particularity with which one should apply the factual matrix of the accident to the two limbs of s.2(2)(a); another area in which different interpretations are hypothesised depending on which side of the fence a claims handler sits. Whilst this is no new phenomenon, it is a noticeable trend stemming from recent high-profile cases.

Dennis v Voute sales: how much particularly is enough?

Over three and a half years have passed since Her Honour Judge Howells’ judgment in the case of Dennis v Voute Sales [2022] WLUK 360; a case I handled whilst working for another law firm. In Dennis, the claimant alleged that the horse she was leading at the Tattersalls Sales “spooked” and “shied away” “violently”, dragging her with it and causing a significant injury to her knee. It was her case that the court should follow the approach adopted in Lynch v Ed Walker Racing [2017] EWHC 2484 where the first limb of s.2(2)(a) had been considered “by reference to the characteristics relied on for the purpose of s.2(2)(b)”. The defendant said that the claimant was wrong about that (and that the concessions made in Lynch were wrong too). The defendant argued that Smith v Ainger [1990] WLUK 192 and Curtis v Betts [1990] 1 WLR 459 (both Court of Appeal decisions) meant that s.2(2)(a), (b) and (c) should be considered sequentially.

What does all that really mean? In essence, both parties agreed that a degree of factual circumstance needs to be baked into the reckoning on both limbs of s.2(2)(a) albeit to differing extents. Really the question for everyone is to “how much” of an extent? The claim in Dennis failed on the facts and so HHJ Howells’ judgment in relation to s.2(2)(a) was obiter. However, it is a reasoned and detailed walk through the various requirements. Further, the liability experts had agreed that the damage caused by the horse was not likely to be severe. Thus, most of the submissions centred on the first limb of s.2(2)(a).

The claimant wanted the judge to bake in the very circumstances of what happened to her, and perhaps it’s understandable that a claimant would like a judge to answer a question “was injury likely” by considering everything that happened that day to cause the injury they sustained. When asking whether injury is likely against a claimant’s sensationalised version of events, naturally the answer is more likely to favour them. The defendant wanted that question to be asked in the context of what the claimant was doing immediately before the accident happened. Again, perhaps that is understandable for a defendant whose business was in repeating the act which resulted in the accident. The defendant wanted the judge to consider whether injury was likely in showing a horse at Tattersalls. Given the sheer number of occasions that occurs uneventfully, surely the answer would be no.

HHJ Howells applied the test: “was the damage which this yearling caused damage of a kind that this yearling, unrestrained, was likely to cause”. She found that to introduce the s.2(2)(b) characteristics would give too much particularity to s.2(2)(a) such that it would render s.2(2)(b) “largely redundant”. Dennis, I would say (although I am biased) might therefore look “just right” for the defendant Animals Act practitioner.

Boyd v Hughes: a contrasting approach to s.2(2)(a)

Dennis was mentioned in Boyd v Hughes [2025] EWHC 435 (KB), heard two and a half years or so later. The claimant in Boyd was represented by the same solicitor as Dennis and a largely similar approach to s.2(2)(a) was argued (that which HHJ Howells had found was too much): that the particular circumstances of the accident and also the relevant characteristic under s.2(2)(b) should be considered in relation to both limbs of s.2(2)(a). Unlike in Dennis, the defendant argued in Boyd that no particularity needed to be applied to the first limb of s.2(2)(a), although a degree should be applied to the second limb. Cotter J rejected the first element of the defendant’s argument, finding that “the first limb of s.2(2)(a) obviously cannot be considered with the animal within a factual vacuum” and thus one might say that to argue no particularity of the factual matrix at all need apply at the first limb of s.2(2)(a) is too little.

Cotter J went on to assess the first limb by considering whether “a sudden jink/shy/sidestep to the right whilst a horse is moving” was likely to cause injury. This judgment does not sit particularly neatly alongside the judgment of HHJ Howells in Dennis. HHJ Howells was conscious not to introduce the s.2(2)(b) characteristics in considering the likelihood of injury. By considering the jink, Cotter J did just that (although, again, the claim failed in general).

Where the legal teams for the defendant in Dennis and Boyd adopted similar approaches was in agreeing that more particularity should apply to the second limb of s.2(2)(a) compared to the first. The starting point for the second limb is that damage has actually been caused. Again, it becomes a question of “how much?”

O'Connell v MoD: refining the second limb

Seven months or so after Boyd came O’Connell v The Ministry of Defence [2025] EWHC 2301 (KB), a case which drew headlines for a fundamental dishonesty finding. However, it too developed themes of interest for the Animals Act 1971 practitioner after the claimant fell from a horse that bucked. The claimant did not bring her case under the first limb of s.2(2)(a) – focussing her efforts entirely on the second limb. DHCJ Christopher Kennedy KC found that the correct approach in determining the likelihood of severe injury was to consider firstly the “violence of the buck” (so, applied to other cases, perhaps the energy in the movement causing the injury) and then “the point at which events become too proximate to the infliction of the severe injury properly to be taken into account” i.e. it is not that the entirety of the accident circumstances would be brought into this reckoning. The judge added that “[he] must put [himself] in the position of a spectator (with an excellent view and plenty of time for analysis) at the point at which [the horse] bucked and the claimant’s fall is inevitable”. He then listed 6 distinct contextual circumstances from the individual case, which did not include the precise nature of the fall.

Ultimately the search for Goldilocks’ perfect bowl of porridge goes on. Temptation remains, it seems, on both sides of the litigation to seek to persuade a trial judge that all the circumstances of the accident should be brought into the reckoning (too much, too hot) or that barely any (even none at all) should (too little, too cold). The skill remains in drawing that line in precisely the correct location – and even recent case law on the issue remains inconsistent with each other. That said, there is a reason for optimism: a possibly turning tide of judgments on liability under s.2(2) suiting defendants in some respect. 

References

• Dennis vs. Voute Sales – 2022 WLUK 360
• Lynch vs. Ed Walker Racing – 2017 EWHC 2484
• Smith vs. Ainger – 1990 WLUK 192
• Curtis vs. Betts – 1990 1 WLR 459
• Boyd vs. Hughes – 2025 EWHC 435 (KB)
• O’Connell vs. The Ministry of Defence – 2025 EWHC 2301 (KB)