Ayres and Holding v Independent Vetcare Limited t/a Kernow Veterinary Group Ltd


11 July 2022, Jess Swallow


On 6 May 2022, Advocates for Animals acted for Wendy Ayres and Ian Holding, whose dog, Bailey, tragically died while in the care of the defendant, a veterinary group. The claim was based in negligence and breach of contract, with the claimants arguing that the defendant had failed to provide Bailey with the standard of care expected of a reasonably competent vet, and that this resulted in his death. They further argued that Bailey was a much-loved member of their family, and that any financial award should not be measured simply by the cost of a replacement dog (which is the way such awards would typically operate), but rather, it should reflect Bailey’s true value as the claimants’ beloved family member.


The claim failed; however, the judge acknowledged that the claim was properly brought, despite never having been about money, and denied the defendant’s application for costs.


The Facts


This was a case about a dog called Bailey. Bailey was a Labrador who was rescued by the claimants in November 2017 with his companion, Missie. The claimants do not have children, and Bailey and Missie quickly settled in as part of the family. In his witness statement, Mr Holding stated that:


“Labradors like Bailey and Missie have such huge personalities; they pick up on your feelings, anxieties, fun and happiness and they are a part of your family. Bailey and I were incredibly close. He knew my commands before I spoke them. His loyalty to me [was obvious]… and I know that he would have saved my life in a heartbeat. In effect he was the son I never had.”


In late September 2019, the claimants took Bailey to a veterinary surgery operated by the defendant because he was displaying lameness in his front leg. He was prescribed some medication. However, a week later the lameness had worsened, and the claimants returned to the vet. Bailey was given an X-ray and further painkillers. Overnight on 2 October 2019, Bailey began passing blood. The claimants took him to the vets first thing the next morning, where he was given a further painkiller and an antacid. They returned home with him, but he was fading fast. The claimants rushed him back to the vets, where he was admitted as an in-patient. Tragically, at around 5:45pm on 3 October 2019, Bailey passed away.


The Claim


The claimants claimed that the defendant, negligently and in breach of contract, failed to provide an acceptable standard of care, in particular by failing to provide Bailey with adequate and appropriate examinations, pain relief and monitoring, and those breaches caused or materially contributed to unnecessary suffering by Bailey and his premature death. More specifically, the claimants argued that the defendant’s alleged breaches caused both Bailey’s suffering and his premature death, and that both of these give rise to damages.


The claimants sought to recover: (i) the cost of a replacement dog, (ii) the reimbursement of the sums paid to the defendant, and (iii) a lump sum to represent damages for loss of pleasure and peace of mind that the contract should have brought through Bailey’s recovery, and the emotional distress suffered as a result of the alleged failings.


In relation to (iii), the claimants argued that English law recognises that distress resulting from witnessing upsetting events can give rise to damages. The most well-recognised type of case in this regard is so-called “nervous shock”, which requires a very severe degree of psychiatric harm; however, there are comparable awards made in other areas of law, such as Vento awards in employment law for upset caused by a hostile work environment, damages for harassment, non-material losses caused by defamatory statements, non-financial disappointment for unsatisfactory building works, and the loss of pleasure caused by a disappointing holiday. It was argued that it was open to the court to make an award to the claimants on comparable terms, for the distress that they had suffered as a result of losing Bailey in the manner that they did.


The Defence


Relying on an expert’s report, the defendant argued that the care it provided to Bailey did not fall below the requisite standard for a breach of contract or professional negligence claim, and further argued that any failings did not cause Bailey’s death as he would likely have died whether or not there had been any breach.


Even if the defendant’s actions or omissions had caused Bailey’s death, the defendant denied that the sums claimed by the claimants were recoverable under English law. In relation to Bailey’s financial value, it argued that, due to his age and lameness, his market value was nil; in relation to the reimbursement of sums paid to the defendant, it argued that these would have been incurred whether or not there had been any breach of duty; in relation to emotional distress damages, it argued that the authorities relied on the claimants were not relevant to the present case.


The Judgment


The judge agreed with the defendant. While he was sympathetic to the claimants, he did not consider that the defendant’s care of Bailey had fallen below the requisite standards and, in any event, the expert evidence indicated that he would have died with or without acceptable care. Causation was not made out in respect of that part of the claim.


In relation to the connected claim for damages for emotional distress resulting from Bailey’s suffering (as opposed to his premature death), the judge held that, even though the expert indicated that, but for the defendant’s actions, Bailey could have been made more comfortable in the last hours of his life, no actionable cause of action arises from Bailey’s lack of comfort. In this regard, the judge said that:


“Here, I think I am at risk as coming across as rather cold-hearted. Please, I am not, but I have to apply the law correctly. English law sees a much-loved family pet in very much the same way as it sees a dishwasher; it is a ‘thing’.”


Despite finding that the claim had failed both on breach and on causation, the judge briefly considered the claimants’ claim for damages for emotional distress, and reached the following view:


“The most significant elements of this claim, were breach of duty and causation satisfied, is whether there can be a sum payable to Mr Holding and Ms Ayres for their upset. The answer to that is a firm ‘No’.


There are contracts, for example contracts for a holiday, where breach of that contract has led to a loss of enjoyment. The logic in the Court’s decision to compensate for that loss is that it was the very purpose of the contract. There was no sense in which the contract between Mr Holding, Ms Ayres, and the defendant was to give the claimants any form of enjoyment. Far from it; it was to try and have Bailey’s lameness addressed. There was no pleasure in taking him to the vet for that purpose. We are in a very different situation.”


Commentary


This was a tragic case that was founded in the claimants’ unswerving belief that the care, or lack of care as they saw it, given to Bailey led directly to his death. For the claimants, this case was never about money or financial compensation, but rather it was about getting recognition that Bailey had died prematurely and that his value could not be represented by the cost of a replacement dog, which is the current position under the law.


The court did not agree on either point; however, the case gave rise to some interesting points of law in relation to animals.


Animal suffering as a head of damage


The expert was of the view that the defendant’s actions or omissions did not cause Bailey to die, but that they may have had “serious consequences” and Bailey might otherwise have “been made more comfortable for the remaining hours of his life”. The claimants’ claim was articulated in two parts: that the claimants had suffered both as a result of Bailey’s death, and also as a result of his suffering.


In relation to Bailey’s death, the judge’s conclusion was that this was not caused by any act or omission by the defendant (and, indeed, he considered that the defendant had not fallen short of the expected standard of care in this regard), and this part of the claim failed.


In relation to Bailey’s suffering, whether or not it is a head of damage currently recognised under law, the claimants’ position was that this (and not just Bailey’s death) had caused them significant distress. However, despite being sympathetic, the judge’s view was that this distress was not quantifiable and not something which, under the law as it stands, gives rise to an actionable claim.


Emotional distress damages and the status of animals as property under law


In broad terms, the law recognises two primary categories of entities: persons and things. A “person” (such as a human, a company or a nation state) has rights, whereas a “thing” (such as land, a dishwasher or a nonhuman animal) is the subject of rights. Legal relations exist between “persons”, who can own “things”. A person might have an obligation in respect of a “thing” that they own (such as an obligation to care for a nonhuman animal); however, the “thing” has no rights or legal standing to enforce those obligations on its/their own behalf.


In this case, this meant that the claimants could bring a claim on their own behalf, arising out of their pain and suffering that resulted from Bailey’s death, but there was no legal mechanism for Bailey to have made a claim on his own behalf, or for the claimants to have made a claim on Bailey’s behalf. Similarly, when valuing any compensation that might have been payable had the claim been successful, the starting point is that Bailey was a “thing” with a market value and that he can be replaced by another dog of a similar value; as such, any damages would be limited to that market value.


As above, it was the claimants’ case that there are legal mechanisms by which a court can order damages for emotional distress and/or loss of pleasure and/or disappointment, and that these heads of damages more accurately reflect the true value of a family companion such as Bailey. In this case, the court disagreed.


Our clients are often outraged that nonhuman animals under their care are considered mere property, or “things”, under law, and they believe that this does not reflect the status or value they deserve. We will continue to represent them to challenge this property status and see the real value of nonhuman animals taken into account by the courts.


Advocates for Animals was instructed as the solicitors for the claimants, who were represented at trial by Alan Robertshaw of Coach House Chambers.



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