Patrick - O'Shea - (plaintiff/ respondent) v Tilman Anhold and Horse Holiday Farm Ltd (defendants/ appellants).

Animals - Horse in collision with plaintiffs motor vehicle on highway - Duty of care - Whether contributory negligence - Onus of proof - Whether doctrine of Res Ipsa Loquitur applies - Whether reasonable care taken - Animals Act 1985 (No 11), s 2.

The Supreme Court (the Chief Justice, Mr Justice Hamilton; Mr Justice O'Flaherty and Mr Justice Keane); judgments delivered 23 October 1996.

UNTIL the enactment of the 1985 Act, Irish courts applied the law as laid down in England by the House of Lords whereby it was held that the owner of animals which strayed onto the highway was not liable for damages which they caused. Section 2 of the 1985 Act has abolished the somewhat anomalous immunity from the ordinary law of negligence which the owners of land from which animals stayed on to the highway previously enjoyed. It has not however, imposed any form of absolute liability on such persons.

There is no doubt that having regard to the statutory provision an onus rests on a defendant to show that he has taken reasonable care; nonetheless, that is the extent of the burden which rests on him. In the instant case, the defendants disproved any negligence on their part through the evidence of their expert witnesses that the fencing was adequate. They were not required to take the further step of proving how the animal came to be on the highway. The most that is required of a defendant in this situation where the onus of proof rests on him is to disprove any negligence on this part

The trial judge's essential task is to decide whether reasonable care has been taken by the owners of the animal in the circumstances of the case as required by the Act.

The Supreme Court so held in allowing the appeal.

Fergus O'Hagan SC and Gerard Clarke SC for the plaintiff/ respondent, James Nugent SC and Colm Smyth BL for the defendants/ appellants.

THE CHIEF JUSTICE, MR JUSTICE HAMILTON, said that he had read the judgments of Mr Justice O'Flaherty and Mr Justice Keane and agreed with them. He wished however to reserve his position with regard to the suggestion contained in Mr Justice Keane's judgment that the restatement of the doctrine of Res Ipsa, Loquitur by the Supreme Court in Hanrahan v Merck Sharpe & Dohme (Ireland) Ltd [1988] ILRM 629 may need to be reconsidered.

MR JUSTICE O'FLAHERTY said that on 2 January 1990 the plaintiff was driving his motor car on the public road at Moneygold, Cliffoney, Co Sligo, travelling from Bundoran in the direction of Sligo, when he collided with a horse which was owned by the second-named defendants. While it appeared that the first-named defendant had a controlling interest in the second-named defendant company, it came to be accepted in the course of the trial that the horse in question was owned not by him but by the defendant company. The plaintiff sustained quite serious injuries.

Mr Justice O'Flaherty said that, in his judgment delivered on 26 April 1994, Mr Justice Costello found in favour of the plaintiff; he found that the second-named defendants were negligent; that there was no contributory negligence on the part of the plaintiff and the judge awarded a sum in damages for the injuries that the plaintiff had sustained. The defendants appealed.

Mr Justice O'Flaherty said that at the outset, counsel for the appellants, submitted that even if there was negligence on the part of the defendants (which of course he disputed) there should, nonetheless, have been a finding of contributory negligence against the plaintiff. Mr Justice O'Flaherty disagreed. He said that here was a man driving his motor car along a busy highway, on a dark night, on dimmed headlights, and out of the blue a horse crashed onto the roof of his car. Counsel for the plaintiff said that that the horse resembled Pegasus, the winged horse of Greek mythology, in performing such a feat and, he asked: how was the plaintiff expected to cope with that? Mr Justice O'Flaherty said that there was certainly substance in this submission. So in his opinion, there was no negligence on the plaintiff's part. But, from the plaintiff's perspective he still had to prove negligence on the defendants' part.

Mr Justice O'Flaherty said that the first-named defendant gave evidence that he had purchased the lands adjacent to the highway from which the horse strayed in or about 1984. He runs a holidays company which is the second named defendant company. The horses are the only assets of the company. There were four horses in the field at the time. The first-named defendant fed the horses on the evening of the accident at about 4.30pm. The horses were in a concrete portion between two gates when they were fed. The gate leading into the field was open. He left the horses on the concrete portion. He walked out through the roadside gate and dosed it. The gate was spring-loaded. He had to lift up the gate and only then could the bolt be moved freely. He was sure that he had closed the gate. The first-named defendant said that he was involved with horses for the past 25 years. Previously he had a horse removed from his lands.

Dr Joe Hart, an agricultural consultant, gave evidence that he was satisfied that the fencing was adequate for ordinary Commercial horse purposes. He said that the horse would not itself have got out. It would not jump over the wall onto the road. On the public road, the horse would have been in a panic and would behave differently. He believed that someone must have let it out onto the road. In a similar vein, Mr Ray Gallagher, an equestrian expert, testified that the only way that the horse would get out was for someone to have opened the gate. While he agreed that a horse could jump from three to seven feet, he said he would be surprised if a horse would do so without being urged or forced.

Mr Justice O'Flaherty then referred to the Act of 1985 whereby section 2(1) provides that so much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying onto a public road was abolished. He said that the "rules of the common law" are well summarised in the decision of the House of Lords in Searle v Wallbank [1947] AC 341 where Lord du Parcq in the course of his speech said:

"That the truth is that, at least on country roads and in market towns, users of the highway, including cyclists and motorists, must be prepared to meet from time to time a stray horse or cow, just as they must expect to encounter a herd of cattle in the care of a drover. He said that an underlying principle of the law of the highway was that all those lawfully using the highway, or land adjacent to it, must show mutual respect and forbearance; the motorist must to put up with the farmer's cattle and the farmer must endure the motorist."

Mr Justice O'Flaherty said that the position as recounted in Searle, v Wallbank also represented the law in Ireland. (See McMahon and Binchy, The Irish Law of Torts (2nd edition) pages 518-521 and cases cited therein.) But then the legislature stepped in to change the law. This was a recognition, no doubt, that public roads had got much busier with the increase in motor traffic and so, from everyone's point of view, it was best to impose a duty on land-owners to provide proper fencing adjacent to the highway to prevent animals from straying thereon except where the land is situated in an area where fencing is not customary

Mr Justice O'Flaherty said that the trial judge was faced with the question: in the circumstances were the owners of the horse liable to the plaintiff. The learned trial judge concluded that:

"The situation was that either the fencing on the laneway or field was inadequate or someone had opened the gate, let out one horse and closed the gate again. On balance the first possibility was much more likely than the second. The problem of fencing is a difficult one and the defendant was unable to discharge the onus of proof on it. The plaintiff has shown a breach of duty. There was no contributory negligence on the part of the plaintiff.

Mr Justice O'Flaherty said that the defendants had disproved any negligence on their part through the evidence of their expert witnesses that the fencing was adequate, which testimony was not contradicted by the plaintiff's engineer. They were not required to take the further step of proving how the animal came to be on the highway: whether through an act of a trespasser or however. The most that was required of a defendant in this situation where the onus of proof rested on him was to disprove any negligence. The learned trial judge approached the matter on the basis that one possibility was more likely than another. The trial judge's essential task was to decide whether reasonable care had been taken by the owners of the horse in the circumstances, of the case, as required by the Act. The judge, in effect went close to imposing strict liability on the defendants. This was to go too far.

Mr Justice O'Flaherty said that; in any event, as between the two possibilities, he would regard the possibility that someone opened the gate and let the horse out as less unlikely than that the horse cleared the fencing and in the circumstances he allowed the appeal.

MR JUSTICE KEANE said that the facts had been summarised in the judgment of Mr Justice O'Flaherty.

He said that on the hearing of the appeal, counsel on behalf of the defendants submitted that even if the defendants had been guilty of negligence, there was clear evidence on which the trial judge should have found the plaintiff also guilty of contributory negligence, since he had admitted never, having seen the horse before it, collided with his car. Counsel said that, if a motorist had given that evidence in the case of a pedestrian walking on the roadway, no one would seriously consider exonerating him from any degree of contributory negligence. The plaintiff's own evidence was consistent only with his having failed to keep a proper look out and the trial judge should have so found.

Mr Justice Keane said that as to the question of the alleged negligence of the defendants, counsel while not conceding that the onus was necessarily on his clients to establish that they were not negligent, submitted that, in any event the finding by the trial judge that they had not discharged the onus of proof was so manifestly unsupported by evidence that it should be set aside by the Supreme Court. Counsel said that Ms Kelly although called on behalf of the plaintiff, had not suggested that the fencing was in any way inadequate. The other evidence was that of Dr Harte and Mr Gallagher, both experts in this area, who had testified that the defendants had taken all reasonable precautions in the fencing of the lands. In addition, there was the evidence of the first-named defendant himself, who had lengthy experience of the horse business and who, it could reasonably be assumed, would be particularly concerned with the safety of his own horses, altogether apart from any question of the damage they might do to users of the road if they escaped.

Mr Justice Keane said that counsel on behalf of the plaintiff submitted that the findings of the trial judge as to the negligence of the defendants and the possible contributory negligence of the plaintiff were findings of fact with which the court should not interfere. Once it had been established that the second-named defendant's horse had escaped from the first-named defendant's land onto the highway and had collided with the plaintiff's car, the onus rested on the defendants to satisfy the trial judge as a matter of probability that the accident was not due to any negligence on their part. Counsel had said that the trial, judge was entitled to conclude, as he did, that it was more probable that the accident had been caused by the horse jumping over the fencing than by someone having deliberately let the horse out on to the road. Counsel further submitted that the trial judge was entitled to conclude, as he had done, that the plaintiff had not been guilty of contributory negligence.

Mr Justice Keane then turned to the legal principle as set out in Searle v Wallbank [1947] AC 341 which had been repealed by the 1985 Act. He said that in the present case, it was accepted that the horse, which collided with the plaintiff's motor car was the property of the second-named defendants and had escaped, in some fashion, from the first-named defendant's land on to the highway. Although counsel for the defendants was reluctant to concede the point, it seemed clear that at that stage, as the trial judge ruled, the onus shifted to the defendants to prove, on the balance of probabilities, that they had taken such care as was reasonable to see that damage was not caused by horses escaping from the land on to the public road. Mr Justice Keane said that that seemed to be a case in which the Res lpsa Loquitur principle clearly applied.

Mr Justice Keane then referred to Scott v London and St. Katherine Docks Company (1865) 3 H&C 596 where Chief Justice Erle said:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the Defendant or his servants, and the accident is such as in the ordinary circumstances does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the Defendants, that the accident arose from want of care."

Mr Justice Keane said he had used that classic formulation rather than the recent restatement of the doctrine by the Supreme Court in Hanrahan v Merck Sharpe & Dohme (Ireland) Limited [1988] ILRM 629 which has been criticised and may need to be reconsidered at some stage. (See, for example, McMahon & Binchy, The Irish Law Of Torts (2nd edition) at pages 142 to 144.)

Mr Justice Keane said that in the instant case, the defendants were the persons who brought the horse into the field adjoining the highway and provided such fences and gates as were there. Matters were accordingly, essentially under their control and the first element of Res Ipsa Loquitur was present. As to the next requirement - that the accident was such as in the ordinary circumstances did not happen if those who had the management used proper care - it was self evident that a horse would not normally escape from lands on to the public road if adequate fencing is provided and any gates are kept in a closed position. He said that at the close of the plaintiff's case, there was, accordingly, reasonable evidence, in the absence of explanation by the defendants, that the accident arose from their want of care. He was accordingly, satisfied that the trial judge was correct in refusing to accede to the application for a non-suit made on behalf of the defendants.

However, Mr Justice Keane said that an explanation was offered by the defendants. The evidence both of the first-named defendant and the experts called on his behalf was that all the standard precautions in the way of fencing and gates had been taken by the first-named defendant to ensure that horses did not stray from the land onto the road. In addition, the first-named defendant gave evidence, which the trial judge appeared to have accepted, that, having fed the horses in the feeding area, he then left the gate into the field open and closed the gate leading from the feeding area into the public road. The explanation offered by him as to how the accident happened was that someone had opened the gate and allowed the horse to get on to the road. The trial judge considered it more likely that the fencing was "inadequate" and accordingly, he found that the defendants had been negligent.

Mr Justice Keane said that there was, with respect, a lacuna in this reasoning. Even if the trial judge was satisfied as a matter of probability that the horse had managed in some fashion to surmount the obstacle presented by the fencing, - it would not necessarily follow that this was due to any want of reasonable care on the part of the defendants. If it were the case that the defendants had taken all the precautions which a reasonable person in their position ought to have taken to prevent the horse escaping, then the fact that the horse succeeded in getting on to the road was not the result of any negligence on their part.

Mr Justice Keane said that as to whether the defendants had taken all the steps which a reasonable person in their position would have taken, the evidence before the trial judge was all to the same effect. Two experts, whose qualifications were not challenged, gave evidence that the fencing was adequate for its purpose and that they would be surprised if any of the horses in the field either attempted to jump over it or succeeded in jumping over it on to the road. They never resiled from that evidence and there was no evidence to suggest that they were wrong in that view. On the contrary, the experienced accident engineer who gave evidence on behalf of the plaintiff notably refrained from expressing any view as to the adequacy of the fencing.

Mr Justice Keane concluded by saying that to hold the defendants liable for negligence in the circumstances of the case where the admitted evidence was that they had taken all the precautions which a reasonable person would take to prevent the particular animals, a herd of horses, from straying on to the road, would be to impose a higher duty than the duty "to take such care as is reasonable" recognised by the Oireachtas as applying to such persons.

Mr Justice Keane allowed the appeal.

Solicitors: Johnson & Johnson (Sligo) for the plaintiff/ respondent; Howley Carter & Co (Sligo) for the defendants/ appellants.