The opening paragraph of the facts in this case just says: “The cow’s escape was extraordinary”. However, from that gripping start, it becomes a very sad case.
A cow, seemingly driven wild by its maternal instinct to bond with its recently weaned and separated calf, left the field in extreme agitation, hours after it had been left in a relatively calm state. It somehow managed to clamber over a six-bar gate and then cross a 12-foot cattle grid either by jumping the length of it or tip toeing across.
It then charged in the road where it collided with a car. Two people died in the crash.
We outlined the provisions of how the Animals’ Act works in the December 2007 Law Bulletin: Welsh -v- Stokes. This is not repeated here save to go through the criteria:
- Damage … likely to be severe
This was easily fulfilled.
- Likelihood of damage due to characteristics of the animal which are not normally found in animals of the same species.
Held that the maternal instinct to bond with her recently weaned calf is a normal characteristic of a cow. So this could not apply. Nor was it the characteristic which had caused the accident.
OR are not normally so found except at particular times or in particular circumstances.
Here, the dangerous and causative behaviour was quite exceptional and exaggerated agitation resulting from her maternal instinct that caused her to be able to get over a high gate and then over a long cattle grid. This was completely unknown and unprecedented behaviour and way beyond the extreme limits of agitation expected when weaning. In other words it was not behaviour normally found at particular times or in particular circumstances. The case of the bolting horse in Mirvahedy could be distinguished as a horse bolting when scared is known characteristic behaviour at this particular time (being scared or spooked ).
Moreover: c. The owner could not possibly know of this characteristic.
There was no common law claim as the field was secure.
McKenny -v- Foster, Court of Appeal