Turnbull v Warrener [03.04.12]
Court of Appeal gives judgment in second claim in two months relating to fall from horse; claim dismissed as Claimant had voluntarily accepted the risk.
This decision will be welcomed by horse owners, riding establishments and their insurers. It follows less than two months after the Court of Appeal’s decision in the similar case of Goldsmith v Patchcott. In both cases, the claim was defeated by a s.5(2) Animals Act 1971 statutory defence, that the Claimant had voluntarily accepted the risk. The Court of Appeal has made it clear that horses must be expected to behave in unpredictable ways.
The case again highlights the complexities involved in applying s.2(2) of the Animals Act. In this latest decision, Lord Justice Maurice Kay says that the drafting is “grotesque”. Back in 2009, the Department for Environment, Food and Rural Affairs published a consultation on the Act. Maurice Kay LJ comments that "It contained modest proposals which would breathe life into section 2(2)(b)". In Kennedys’ response to the consultation, we agreed with the Government that there is a case for amending s.2, and put forward our own proposed wording in this regard. However, no changes have so far resulted from this consultation.
The Defendant was the owner of a horse called Gem. In November 2005 she made an arrangement with the Claimant that the Claimant would ride Gem on a regular basis. For about four months the Claimant rode Gem most weekends. On 26 March 2006 the Claimant was riding Gem when she fell and sustained injuries.
A few days before the accident, Gem was taken to the dentist, who advised that he should not be ridden using a bridle with a bit for the following week. Gem had never experienced a bitless bridle before but, on the day of the accident, the Claimant was content to ride. After a period of around half an hour riding him in an enclosed area, and then in an outdoor space, the Defendant suggested that they call it a day. The Claimant replied that she wanted to take Gem for a canter up the field. It was as she was doing so that Gem suddenly veered to the right and went through a gap in a hedge, and at this point the Claimant fell.
The claim failed at first instance before His Honour Judge McIntyre.
Maurice Kay LJ disagreed with the trial Judge about almost everything relating to statutory liability, but came to the same ultimate conclusion.
He found in favour of the Claimant in relation to s.2(2), making the following findings in relation to the relevant sub-paragraphs:
- The trial Judge should have found that the damage was of a kind which, if caused by Gem, was likely to be severe. His decision that this was not the case was not really supported by the evidence and was contrary to received wisdom, or resulted from a failure to apply the correct test.
- The Judge should have considered whether refusing to respond to instructions given through the bitless bridle was a characteristic of horses unfamiliar with such equipment. Such consideration would or should have resulted in the answer that it was such a characteristic.
- The finding that there was no evidence to support the proposition that the Defendant knew of such a characteristic was questionable.
The Defendant did not have a statutory defence under s.5(1). This provides that the keeper of an animal is not liable under s.2 for any damage “which is due wholly to the fault of the person suffering it”. The Judge was wrong to find that the damage was wholly due to the Claimant’s fault. Either both the Claimant and the Defendant, or neither, were at fault in the statutory sense.
However, the Defendant did have a defence under s.5(2). The Judge was wrong to find that the Defendant could not establish that the Claimant had “voluntarily accepted the risk”. It was plain that she had voluntarily accepted the risk which eventuated. It is a fact that, as Jackson LJ said in Goldsmith, horses “may act out of instinct or impulse and their precise behaviour cannot necessarily be predicted”.