In an equine context insurers are usually confronted with claims involving: (1) horses escaping or causing a collision on a road; (2) horse riding accidents in a riding school or competition; and (3) everyday handling of horses causing injury.
It’s been a grey area deciding whether or not to run these cases, particularly with the fall out from the House of Lords decision of Mirvahedy v Henley  ascribing Animals Act 1971 liability. In this case Mr Mirvahedy suffered serious personal injuries when three of the Henley’s horses strayed out of their field, onto the road, and collided with his car. Both parties agreed that the resulting blind panic in the horses was an entirely “normal” reaction in the circumstances. However, the courts confirmed that strict liability under the Animals Act 1971 could arise under s2(2) which provides:
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 if:
(a) There is a likelihood of damage or if there is damage then it is likely to be severe and
(b) Where damage is caused by an animal which although not behaving at the time of the accident in a way that is normal for the species, is nevertheless normal for animals of this species in the particular circumstances and
(c) The characteristics in question must be known to the keeper.
In this instance neither the claimant nor the defendant did anything blameworthy but this decision ruled out the possibility of an accident. Most horse owners lovingly accept that their horses are, by their very nature, reliably unreliable and the outcome seemed that horse owners would now became liable for incidents even when their animals displayed “normal behaviour”. On the face of it this decision seemed manifestly unfair. Whilst the claim of an innocent motorist such as Mr Mirvahedy under the Act may have been fair as a policy decision, the claims of horse riders and users seemed less justifiable given that such people are generally aware of the risks they run. The application of strict liability in these circumstances was also out of line with other areas of the law where legal liability can be mitigated by the taking of reasonable precautions. Equestrians braced themselves for a hike in premiums and insurers braced themselves for a wave of claims against stables/ horse owners in the event of injury. There is no doubt that public liability premiums have gone up, but closer examination shows that the courts are exhibiting a mercurial like tendency in their interpretation of the legislation. A few cases of note include the following.
In Elliot v Town Foot Stables  the rider was thrown from a pony injuring her shoulder and fracturing her arm. It was held that this pony was normally reliable and the damage in this case was not of a kind, which a pony was likely to cause or, if caused, was likely to be severe. Such injury may have been a mere possibility but it was not reasonably to be expected or as such which might happen. Actual damage was irrelevant. Therefore the claimant had not satisfied the first requirement of s2(2)(a) - and as such the claim failed at the first hurdle.
In Plum v Chorley Equestrian Centre  the claimant maintained that she had been allocated an unsuitable horse which had a tendency to bolt. The court held that, as with any horse, if a rider pulled too suddenly or sharply on it’s mouth the horse would object by bucking. However, in this instance, the court concluded that the damage was not, on the balance of probabilities, per s2(2)(a) likely to be severe “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”. The damage caused was not of a kind which an animal, unless restrained, was likely to cause.
In Clark v Bowlt  a horse (ironically called “Chance”) and its rider veered into a vehicle on the highway. At first instance the judge found that the claimant’s claim under s2 succeeded having considered pursuant to s2(2)(a) that if the horse had caused damage it was likely to be severe because the horse was 600lbs. In respect of s2(2)(b) he said that horses generally follow the direction of their rider but the relevant characteristic in this case was the tendency of Chance to move backwards. This was overturned on appeal because the linked requirements of either s2(2)(a) and s2(2)(b) were not satisfied. Instead it was felt that the damage was not due to the horse behaving in a particular way, but rather due to the size and weight of the animal.
In Dennet v Wain  a horse decided to jump out of its training arena and over a gate injuring the claimant who was standing nearby. The claimant satisfied both s2(2)(a) and 2(2)(b) of the legislation in that she proved that the damage was of a kind likely to cause severe damage and, if caused, was likely to be severe. The tendency to jump out of the ring was not normal behaviour (the horse was a show jumper). However, the case failed because the claimant was unable to prove that its keeper knew of this temperament.
There are some defences. Under s5(1) a person is not liable for any damage which is due wholly to the fault of the person suffering it. This is quite straightforward, eg if you stand behind a horse and pull its tail then you have deservedly asked for it to kick you.
Under s5(2) a person is not liable for any damage suffered by a person who has voluntarily accepted the risk. In Plum v Berry, it was held that any person who was competent to canter would accept the risk of being unseated by such event and in such a manner. In Elliot v Townfoot Stables, the case was said to fall within s5(2) on the basis that the accident was “precisely the type of risk which a rider undertakes” .
That said, in Flack v Hudson  a horse spooked when he saw a tractor on the road and bolted resulting in fatal injuries to his rider. The judge concluded that, although it was well known that this horse could become upset when it saw a tractor, the rider was unaware of its tendency to bolt. Damages were therefore recoverable.
S5 provides some scope for insurers attempting to defend such claims but there is no doubt that this is a complex area of the law which requires a degree of careful and proper analysis. On the one hand the ambit of this legislation has been gradually narrowed by these ad hoc judicial decisions, but it still remains finely balanced for insurers with marginal cases.
The British Horse Society has campaigned to persuade the Government to amend the 1971 Act by introducing a defence to keepers of animals that they take reasonable care. In fact, a recent attempt by an MP has just failed at second reading. That said, some believe that because of these cases there is little need to change it.
Whatever changes are proposed, the law must not absolve the owners of horses from their responsibility to take every reasonable effort to prevent the occurrence of damage. Full liability for such damage should still apply in any cases where negligence is proven.
The most recent formula for testing whether a duty of care in negligence arises has recently been provided by the judgement in Catherine MacClancy v Jillian Carenza (t/a the vine riding and livery yard . The claimant suffered very serious head injuries with consequential brain damage and facial disfigurement because of a fall from a riding school horse. The court held that the defendant riding instructor had not been negligent in failing to warn her student of low overhanging branches on a riding school cross country course, as it was not dangerous and it was not foreseeable that anyone would perceive it as dangerous. There was no evidence that the claimant was riding too fast or that there was anything that the defendant could reasonably have done.
The judge held that “riding … is not risk free” and that “ riders do sometimes fall from horses, even during lessons, it does not follow that the reason for their fall can always be identified, still less that the riding instructor is to blame”.
The Animal Act has long been a source of contention for insurers. That said, the sensitive approach of the judiciary suggest that there is increasing scope for argument as to the application of strict liability. For common law negligence MacClancy v Carenya is seen by many as a breakthrough for common sense. Although one should not gloss over the difficulties inherent in these cases, positive case law is evolving. Insurers should be encouraged that it is not all doom and gloom attempting to defend these claims.