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The mad, the bad and the merely dangerous. Liability for personal injury caused by horses: Part II

After the ruling in Mirvahedy v Henley1  it was feared that the strict liability test set out in the Animals Act 1971 would routinely render horse owners and keepers liable for what was essentially normal equine behaviour.  There is ample scope for horse riders to be injured or killed.  Every person who puts their boot in a stirrup is mounting a large, unpredictable animal with a mind of its own.  The risk of being sued affects every horse owner who has allowed someone else to ride their horse: whether a friend going for a trot around a field, someone who has loaned your horse, or employees of a livery yard.  The risk of being found liable for rider injury particularly threatens riding stables, such businesses regularly face claims from people who have fallen off during a lesson or hack. 

However, in recent cases, it has been apparent that the courts have been reluctant to award damages to injured horse riders as a result of natural equine behaviour.  Reassurance has been obtained from judicial comments such as Lord Justice Sedley’s in Clark v Bowlt [2006]2 when he said:

Section 2(2) is not intended to render the keepers of domesticated animals routinely liable for damage which results from characteristics common to the species.  It requires something particular...

Contested cases which result in a reported decision usually concern a horse with a particular characteristic such as bucking or rearing, which has resulted in personal injury.   

As a reminder, the test set out in s.2(2) of the Animals Act is:

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.

A claimant has to prove each step of this 3 stage test.  Judges have been advised to take a methodical approach and consider each stage of the test in turn3.  Therefore the first stage to consider is s.2(2)(a) which has two alternate limbs.

Section 2(2)(a)

In a riding accident which has resulted in injury, it is usually the second limb of this test which is relevant. The Court of Appeal has recently reminded the lower courts4 that the characteristic and circumstances defined in s.2(2)(b) have to be taken into consideration when considering the question in s.2(2)(a). The two are linked.

In Clark v Bowlt [2006] the defendant was counter claiming in a claim brought against her by a car driver who had been injured when the defendant’s horse, Chance, moved into collision with his car as he passed.  The Court of Appeal overturned the first instance decision that the claimant succeeded in his claim under s.2 of the Animals Act.  The judge had found that the second limb of s.2(2)(a) was satisfied because if Chance caused damage (in this case minor whiplash and damage to a car), it was likely to be severe because Chance was a heavy animal.  The Court of Appeal said that the characteristic in s.2(2)(b) was relevant to the exercise carried out in s.2(2)(a).  The weight of Chance was a normal characteristic, and was not the characteristic that was being considered in s.2(2)(b), which the judge defined as the propensity of the horse to assert an inclination to move otherwise than as directed in (undefined) particular times and in particular circumstances.  The Court of Appeal considered that it was not likely that Chance would cause the damage that he did because, in general, horses follow the direction of their rider. 

So the second limb question can be expressed this way “is personal injury the kind of damage which, if caused by the horse’s relevant characteristic (eg bucking when going into canter/bolting/rearing up), was likely to be severe?”

This question is not answered by looking at the kind of injury actually caused.  To do so would be to ignore the use of the word “likely 5.  The use of the word “likely” has been defined as “reasonably to be expected” or “more probable than not”.  A mere possibility of severe injury is not enough 6.

This leads to two questions:

  • How have the courts approached interpretation of s.2(2)(a)?
  • Is expert evidence necessary to prove injury is likely?

Two County Court decisions in the immediate aftermath of Mirvahedy show the court’s unwillingness to award damages to injured riders using the reasoning that the claimant has not satisfied s.2(2)(a):

  • In Elliott v Townfoot Stables [2003]7  8 year old Emma was riding a pony called Jewel in a class lesson in an outdoor arena.  She was being led on a lead rein when Jewel made a sudden movement, probably not quite a buck.  Emma fell off and broke her arm.  In a short judgment the judge concluded that damage in this case is not of a kind which a pony is likely to cause or which, if caused is likely to be severe.  Damage was, in my judgment, a mere possibility but it was not “reasonably to be expected”... or “such as might well happen”.
  • In Plum v (1) Berry and (2) Berry T/A Chorley Equestrian Centre [2004]8  the claimant was riding a horse called Digby on a supervised group hack.  When the group reached a field to have a canter, Digby bucked when going into canter and the claimant fell off.  When considering s.2(2)(a) the Recorder referred to the case of Elliott.  Finding that the claimant had not satisfied s.2(2)(a) he said there is no evidence before me to show that accidents occurring in this way are likely to result in severe damage.  Mr Compton’s (Counsel for the Defendant) submission is that there are many accidents caused when people fall off a horse in a trot or a slow canter or even slightly faster when no severe damage at all occurs.


Although decisions of fact made on the evidence in each case, these County Court decisions have since been somewhat overshadowed by later Court of Appeal judgments: 

  • In Welsh v (1) Stokes (2) Stokes [2007]9  the claimant was a trainee riding the defendant’s horse Ivor when he reared up on a road and she fell off.  At first instance the judge said the second limb of s.2(2)(a) was satisfied because anyone falling off a horse that has reared up and falling onto a tarmac road is likely, in my judgment, to suffer severe injury; still more so is this likely to be the case, in my judgment, if the horse falls backwards onto the rider.  The finding in respect of this aspect of the strict liability test was not appealed.
  • In Freeman v Higher Park Farm [2008]10  the claimant was on an escorted hack riding a horse called Patty.  Patty put in two or three large bucks as she went into canter and the claimant fell off.  Lord Justice Etherton referred to Welsh v Stokes and said it is obvious that, if a horse bucks on beginning to canter so that the rider falls off, it is reasonably to be expected that severe injury will result. 


In all of these cases the courts felt able to reach a conclusion without needing expert evidence to assist. In Plum, the Recorder seems to have been persuaded by Counsel’s submissions as to the unlikely fact of injury. The Court of Appeal in Freeman said it would be unrealistic and unnecessary to require a claimant to submit evidence of injuries throughout the country sustained by riders who fell off horses, with an analysis of the range and degree of severity of the injuries sustained.  However, relying upon the common sense of the judge in each individual case can lead to surprisingly different results as can be seen from the different conclusions reached in Plum and Freeman: cases involving very similar facts.  Therefore, in a case where s.2(2)(a) is in issue, a claimant should carefully consider whether to obtain expert evidence on the issue of likelihood of injury.

Section 2(2)(b)

If a claimant has met s.2(2)(a), the next test is s.2(2)(b).  The claimant has to identify the characteristic he relies on. Then the claimant has to prove that either the characteristic is not normally found in horses or that the characteristic is normal only in certain circumstances.  Those circumstances also have to be identified.  

The Court of Appeal has previously said that the definition of “normal” is “conforming to type”11 .

Flack v Hudson [2000]12  was a rare example of the first limb of s.2(2)(b) being satisfied.  This was a fatal accident which happened when Mrs Flack was exercising the Defendant’s horse, Sebastian, along a road.  A tractor overtook them and Sebastian bolted.  Mrs Flack fell off and died as a result of her injuries.  The characteristic was pleaded as a propensity to be upset by and difficult to control and/or bolt when in the vicinity of agricultural or similar vehicles and/or machinery.  The Court of Appeal upheld the lower court’s decision that Sebastian’s behaviour fell within the first limb of s.(2)(b), having heard evidence from 3 experts that not all horses bolt in such circumstances. 

When overturning the first instance decision in Clark v Bowlt the Court of Appeal said I am afraid that in this rather difficult area of the law the judge has got into a muddle.  Lord Phillips of Maltravers doubted that what the judge defined as a propensity occasionally to move otherwise than as directed could constitute a characteristic.  It was also fatal that the judge did not identify the particular times and circumstances. 

In Welsh v Stokes, the rearing case, the court found that it was a normal characteristic of horses to rear in the particular circumstances that the horse did not want to go forward and its rider was unable to handle him.  Hence the second limb of s.2(2)(b) was satisfied. 

All of the successful cases mentioned above involved expert evidence on the issue of the normal/abnormal behaviour of horses in particular times and circumstances.  Expert evidence is likely to be critical to success.  Cases tend to fail where the claimant has decided not to obtain (or been unable to) supportive expert evidence.  An example of a case that failed on this point was the bucking case of Freeman.  There was no expert evidence of any kind about the characteristic of bucking and whether it was abnormal or normal in particular circumstances.  Consequently the Court of Appeal supported the first instance judge’s decision to dismiss the claim.

Section 2(2)(c)

Assuming that a claimant has succeeded in establishing that personal injury is likely as a result of a characteristic which is either abnormal or normal in certain circumstances, the final hurdle is s.2(2)(c).  This requires knowledge by the keeper, or owner, of the characteristic of their horse.

Knowledge can either be actual or inferred.  So in Flack the first instance finding that the owner knew of Sebastian’s characteristic to bolt when confronted with agricultural machinery was not challenged on appeal. The evidence revealed that it could not have been.  The year before Mrs Flack’s accident, Sebastian was being led by the owner’s husband when he encountered a tractor.  Sebastian bolted and dragged the husband along the road for some distance, breaking the husband’s leg.  

However, in line with Mirvahedy, the Court of Appeal in Welsh considered that s.2(2)(c) was satisfied by showing that the keeper knows that horses as a species normally behave in that way in those circumstances.... it is a general characteristic of horses to bolt in the particular circumstances of the facts of Mirvahedy, or to rear in the particular circumstances of the present case.  It makes no sense to require a keeper, if aware of that general characteristic, to have some additional and more particular knowledge13 This decision seems harsh, particularly as it seems Ivor had not previously displayed the characteristic of rearing when he did not want to go forward.

Defences

The Act provides statutory defences.  These defences are very important and ought not to be whittled away14

Relevant to riding accidents are:

  • s.5(1) if the damage is wholly due to the fault of the person who suffered it
  • s.5(2) if the person has voluntarily accepted the risk of damage (although by virtue of s.6(5) this defence does not apply if the injured person was an employee and the risk was one incidental to the employment)

For a s.5(2) defence to apply the two matters which must be proved in order to show that somebody has voluntarily accepted the risk are (1) that they fully appreciated the risk and (2) that they exposed themselves to it15.

In Freeman, the judge at first instance and the Court of Appeal agreed that, even if the claimant had satisfied the 3 stage test in section 2, the defendant was not liable by virtue of the defence in s.5(2).  The claimant had voluntarily assumed the risk that she may not have been able to stay on Patty if she had bucked. The Court of Appeal’s reasons are set out by Etherton LJ in paragraph 51 of the judgment:

  • The claimant wanted an exciting ride with a forward going horse
  • She had been told that Patty tended to buck when beginning to canter
  • Patty had already bucked once on the ride on the day of the accident
  • The claimant was then asked if she wanted to continue on Patty and she said she did

However, contrast this with the case of Flack, heard some 8 years previously.  The defendants raised this defence on the basis that it was uncontested evidence that, 3 days before the accident, Mrs Flack had been riding Sebastian when he became agitated at the sight of a tractor.  There was also the suggestion that Mrs Flack knew of the incident when Sebastian pulled Mr Hudson down the road and broke his leg.  The judge at first instance rejected that Mrs Flack knew of the incident a year earlier.  He also rejected the contention that Mrs Flack knew enough to alert her to the specific risk to which she was being exposed.  Therefore the s.5(2) defence failed.

Conclusion

Although strict liability under the Animals Act requires something particular, the case of Welsh is an example of quite common circumstances which led to a finding of strict liability against the horse owner.  Consequently it is vital that all horse owners are covered by adequate third party insurance, even if your horse is on loan. 

Riding schools will inevitably face claims and should ensure that they carry out a detailed assessment, not only of riders, but of their horses as well.  If an accident does happen, full details of what exactly happened should be recorded in an accident report.

1 [2003] 2AC 491
2 EWCA Civ978
3 Curtis v Betts [1989] CA
4 See Clark v Boult and Freeman v Higher Park Farm below
5 Mirvahedy para 96
6 Mirvahedy para 97
7 Newcastle-upon-Tyne County Court 3 September 2003 Mr Recorder Goss QC
8 Preston County Court 5 November 2004 Mr Recorder Ryan
9 EWCA Civ 796
10 EWCA Civ 1185
11 Welsh v Stokes [2007] EWCA Civ 796
12 Court of Appeal
13 Paragraph 71 LJ Dyson
14 Cummings v Grainger
15 Cummings v Grainger