Over the years I have dealt with, what I thought, was a broad array of road traffic accidents that include the small shunt in a car park, vehicles coming together on roundabouts, motorbikes not being seen by car drivers and various claims involving buses and HGVs. But recently I was instructed on a claim involving a cow that caused a road traffic accident.

The incident started like many others, the claimant was driving down a country lane in the evening, up a head, a farm hand opened up a gate so cattle could make their way across the highway to another field. Upon seeing this, the claimant driver slowed down but one cow decided to leave the group and wander up the road and promptly decided to run into the car causing damage.

In circumstances like this the Animals Act 1971 applies. Section 2(2) of the 1971 Act states:

Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if:

(a) the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and

(b) the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and

(c) those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.

For the purposes of section 2(2)(a), ‘likely’ means reasonably to be expected. In this case, a cow, when unrestrained, would likely cause damage to a car.

In regards to section 2(2)(b) (likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species), that can be satisfied if the behaviour of the animal is abnormal for its species or was not normally found save for in the particular circumstances of the case. Abnormal would include cases where the individual animal had a known abnormal characteristic such as an individual dog that is known to bite or attack. In other words, was the cow exhibiting a normal characteristic in the circumstances? Unfortunately, the case was settled before the hearing therefore a finding was not reached, I shall leave it for you to decide if a cow wandering away from its heard and into a car was normal. The other aspect of section 2(2)(b) to consider is that the likelihood of damage cannot be a characteristic present at all times. In this case, cows are dangerous because they are heavy but because that is a characteristic commonly found in cattle, it does not satisfy section 2(2)(b).

Pursuant to section 2(2)(c), an abnormal characteristic needs to be known to the keeper or person in charge of the animal. In this case, there was no known abnormality in respect of the individual cow that was involved in the collision.

If section 2 of the 1971 Act is satisfied, there are still defences available to the keeper of the animal. Pursuant to section 5 of the 1971 Act, no liability is attached to the keeper if the other party is at fault and (in slightly different circumstances) there is no liability if the claimant voluntarily assumes the risk. Therefore, in road traffic accident claims, the keeper of the animal can defend the claim on the basis of the claimant’s negligent driving