O'Shea v Tilman Anhold & Horse Holiday Farm Ltd

• Jurisdiction: Ireland
• Judge: Keane J.,O'Flaherty J.
• Judgment Date: 23 October 1996
• Neutral Citation: 1998 WJSC-SC 2817
• Docket Number: 200/94
• Court: Supreme Court
• Date: 23 October 1996

O'SHEA v. TILMAN ANHOLD & HORSE HOLIDAY FARM LTD

AN CHUIRT UACHTARACH

BETWEEN/

PATRICK O'SHEA

Plaintiff/Respondent

.V.

TILMAN ANHOLD AND HORSE HOLIDAY FARMLIMITED

Defendants/Appellants

1998 WJSC-SC 2817

200/94

THE SUPREME COURT

Words & Phrases:

CEF

Subject Headings:

*

Citations:

HANRAHAN V MERCK SHARPE & DOHME (IRL) LTD 1988 ILRM 629

ANIMALS ACT 1985 S2(1)

SEARLE V WALLBANK 1947 AC 341

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 518

ANIMALS ACT 1985 S2(2)

LINDSAY V MID-WESTERN HEALTH BOARD 1993 2 IR 147

SCOTT V LONDON & ST KATHERINE DOCKS CO 3 H & C 596

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 142 – 144

1 Judgment delivered on the 23rd day of October,1996 by O'Flaherty J.

2 On the 2nd 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 appears that the first-named defendant, Tilman Anhold, 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 plaintiffsustained quite serious injuries.

3 In his judgment delivered on the 26th April, 1994, Costello J. (as he then was) 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 appeal.

4 At the outset, Mr. Nugent S.C., 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. I disagree. 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 crashes onto the roof of his car. Mr. Fergus O'Hagan S.C., for the plaintiff, has said that this horse resembled Pegasus, the wingéd horse of Greek mythology, in performing such a feat and, he asks: how was the plaintiff expected to cope with that? There is certainly substance inthissubmission. So, in my judgment, there was no negligence on the plaintiff's part. But, from the plaintiff's perspective, he still has to prove negligence on the defendants" part. Was there suchnegligence?

5 The first-named defendant, Tilman Anhold, gave evidence that he had purchased the lands adjacent to the highway from which the horse strayed in or about 1984. He runs a holiday company. This 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. Mr. Anhold 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 closed 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. Mr. Anhold said that he was involved with horses for the past twenty five years. Previously he had a horse removed from his lands.

6 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 somebody 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 orforced.

7 Section 2(1) of the Animals Act, 1985, provides:-

8 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 on to a public road is herebyabolished.

9 The "rules of the common law" are well summarised for our present purposes in the decision of the House of Lords in Searle .v.Wallbank [1947] A.C. 341. For example, Lord du Parcq, in the course of his speech in that case said, at p. 361:-

"Counsel disclaimed any suggestion that the respondent was bound to maintain a fence, and he recognised that for centuries both the law and the general sense of the community have sanctioned the depasturing of cattle on unfenced land. He contended, however, that one who keeps his cattle on land adjoining the highway behind an apparently secure fence must see to it that it is in fact secure, for otherwise (he said) a deceptive feeling of safety will be induced in the passing cyclist or motorist. My Lords, I should have thought that, on principle, where there is no duty to maintain a fence at all, it cannot be a breach of duty to maintain one which is imperfect. But, however that may be, the argument takes little account of rural conditions. A stray horse, even if it has come from the nearest field and not from one a mile or more away, may have escaped, not through a gap in the fence, but through a gate left open bya trespasser. Moreover, the suggested duty could only be to take reasonable care to maintain a reasonably secure fence, and it must be a very high fence which a horse cannot jump; indeed, we have it on the authority of Byles J. that, in or about the year 1858, it was proved that a bull had leaped over an iron fence six feet high (Bessant .v. Great Western Ry. Co. [(1860) 8CB (N.S.) 368,372]. 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. An underlying principle of the law of the highway is that all those lawfully using the highway, or land adjacent to it, must show mutual respect and forbearance. The motorist must put up with the farmer's cattle: the farmer must endure themotorist."

10 The position as recounted in Searle .v. Wallbank also represented the law in Ireland: see McMahon and Binchy, The Irish Law of Torts (2nd ed.) pp. 518 – 521 and the cases cited therein. But then the legislature stepped in to change the law. This was a recognition, no doubt, that public roads had got muchbusier with the increase in motor traffic and so, from everyone's point of view, it was best to impose a duty on landowners 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" (see s. 2(2) of the Animals Act, 1985).

11 The trial judge was faced with the question: in the circumstances, were the owners of the horse liable to the plaintiff? He concluded:-

"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."

12 There is no doubt that having regard to the statutory provision an onus rested on the defendants to show that they had taken reasonablecare;nonetheless, that is the extent of the burden that rested on them. They disproved any negligence on their part through...