Published: Wed, 07 Mar 2018
Lowery v Walker  AC 10
Tort law – Negligence – Liability of owner
The defendant was the owner of a savage horse which he knew had the potential to cause damage to other individuals and without warning; he placed into a field to graze, knowing that members of the public cross on their path to a local railway station. The plaintiff crossed the field that contained the horse and was attacked, bitten and stamped on by the horse. The plaintiff sued for damages by way of the injury. The trial judge found the defendant to be negligent for creating this danger and found in favour of the plaintiff and ordered damages. The decision was appealed on the basis that the land had been used as a shortcut for many years, as well as those buying milk from the defendant, who had not taken any steps to remedy the trespass.
The key legal issue in this instance was whether the defendant was liable to the trespasser for the injury that was caused. It was important to weigh whether the claimant had a right to be on the property. The defendant had not taken action to prevent people from crossing the land previously, particularly as some were customers who purchased milk from him.
The defendant was liable to the claimant in this instance. The court held that whilst the plaintiff did not have express permission to use or cross the defendant’s land, a licence to be on the land could be implied from the repeated trespass which had occurred and the acquiescence of the defendant to this.
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