Mr Koetsier (C) brought a claim following an accident in which he fell from a horse and suffered a spinal injury. The claim was brought in negligence, by reference to s. 49 of the Consumer Rights Act 2015, and under s. 2(2) of the Animals Act 1971. C’s claim was dismissed.
Facts
C was taking part in a horse riding trek on a public beach. The trek was run by a riding school (D2) and led by D2’s employees. C had signed a form beforehand that included that he understood “that riding at any standard has inherent risks and that all horses may react unpredictably on occasions… I may fall off and could be injured. I accept that risk.” In addition, C was an experienced horse rider with knowledge of the associated risks.
C was part of a smaller group, led by M, that had ridden ahead of the main group. When the smaller group cantered back towards the main group, a small dog (Max) was off-lead near the main group. The dog’s owner (D1) was nearby. Max was not showing any particular interest in the horses. As the small group neared the main group, another employee of D2 gave a warning shout about the dog and M brought the smaller group to a stop.
Max then ran up to the horse C was riding (Bonfire). Bonfire reacted to this by bucking violently. This caused C to fall and suffer severe injury.
C’s claim
C alleged that D1 had been negligent in that D1 ought to have been aware of the approach of the smaller group of horses and ought to have taken some action to restrain Max. There was uncontested evidence that Max was of good temperament, and the claim against D1 under the Animals Act 1971 was not pursued.
C alleged negligence against D2, in that M led the smaller group of horses too close to the loose dog. It was common ground that reference to s. 49 of the Consumer Rights Act 2015 did not materially add to C’s claim.
C alleged that s. 2(2) of the Animals Act 1971 gave rise to strict liability against D2, in that:
(a) injury suffered by falling from a horse that violently bucked was damage was of a kind which, if caused, was likely to be severe;
(b) Bonfire had the propensity to violently buck when worried or frightened by a dog, this being a characteristic normal to horses in these particular circumstances; and
(c) D2 knew of this characteristic.
Found
Dismissing the claims against D1 and D2.
D1
HHJ Harrison accepted D1’s evidence that he regularly walked Max along the beach without a lead, that Max had previously encountered horses, and that Max had never previously demonstrated behaviour similar to that displayed during the index accident.
It was held that D1 allowing his dog off-lead did not amount to a breach of duty. The circumstances of this case would not have led a reasonable person in D1’s position to foresee the risk of injury, and D1’s failure to act before the accident was not a breach of duty.
D2, negligence
D2 had an appropriate risk assessment and process in place for when off-lead dogs were encountered on the beach, this being a regular occurrence. M was familiar with both. M had not seen the dog during the smaller group’s canter back to the main group, and was not negligent in failing to see the dog. Even if M had seen the dog, all she would have seen was a small dog “minding its own business” in the vicinity of horses. It would not have been negligent to fail to bring the smaller group to a walk or adapt the route so as to avoid the dog.
D2, Animals Act 1971
Any damage caused by a violent buck was likely to be severe, satisfying s. 2(2)(a). The violent buck was due to a characteristic common in horses in particular times and under particular circumstances, satisfying s. 2(2)(b). D2 had knowledge of this characteristic, satisfying s. 2(2)(c).
However, D2 was afforded a complete defence under s. 5(2) of the Animals Act 1971.
C was at least as experienced and knowledgeable a rider as any of D2’s staff. Bonfire had not expressed any behaviour that was uncommon among horses, or unknown to experienced riders. C was aware of the risk when he opted to go on the trek, and had voluntarily exposed himself to it. The waiver C had signed before the venture had evidential weight, although was not conclusive.
Insight
The Animals Act 1971 is much maligned, and not without justification. The wording of s. 2(2) in particular often leaves lawyers scratching their heads.
This case provides a few useful insights into the application of s. 2(2), and into negligence claims involving domesticated animals. Below is my summary and expansion on that insight.
Reasonable foreseeability
Reasonable foreseeability of injury is often an insurmountable barrier for those bringing negligence claims involving domestic animals.
The Animals Act 1971 was introduced to consolidate the common law into statute. Reflecting this, the Hansard entries concerning the Animals Act 1971 refer explicitly to the fact that most of the time domestic animals do not pose any foreseeable risk (see for example Draper & Another v Hodder [1972] 2 QB 556).
As stated by Aikens LJ in Whippey v Jones [2009] EWCA 452, a case in which injury was caused by a dog off-lead in a public place: “Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the Defendant) to anticipate it.”
Should the AA even apply to a fall from a horse?
In Turnbull v Warrener [2012] EWCA Civ 412, Lewison LJ alluded to the notion that an “ordinary riding accident” is better characterised as an injury caused by a fall from height, rather than “damage caused by” a horse such as would engage s. 2(2).
Counsel for D2 ran this argument. Accordingly, HHJ Harrison’s judgment is a rare example of (reported) judicial reasoning on the point. The argument was rejected in the circumstances of this case. Here the injury was caused by the behaviour of the horse, the violent bucking, as opposed to merely being caused by the fact of its height.
The argument may be more persuasive in other circumstances. Where a claimant has a ‘mare and falls off their high horse, it is possible that a defendant would succeed in arguing that the height is the cause of the injury, rather than any characteristic of the horse that would satisfy s. 2(2)(b).
What does “likely” mean in section 2(2)(a)?
The meaning is gleaned from Freeman v Higher [2008] EWCA Civ 1185 and was expressly set out by the Court of Appeal in Turnbull. “Likely” in the context of s. 2(2)(a) means “reasonably to be expected”, as opposed to “more likely than not”. The question is not one of principle but of fact in the individual case (per Langstaff J in Lynch v Ed Walker Racing Ltd [2017] EWHC 2484).
When will section 5(2) apply?
Section 5(2) of the Animals Act 1971 is distinct from the common law defence of volenti non fit injuria. The s. 5(2) defence arises where a claimant 1) fully appreciated the risk and 2) exposed themselves to it (Freeman).
The Court of Appeal considered the application of s. 5(2) to knowledgeable claimants twice in quick succession in February 2012. Two entirely different benches sat in Goldsmith v Patchcott [2012] EWCA Civ 183 and Turnbull. Thankfully, the two decisions are consistent in their approach to s. 5(2).
Both cases concerned characteristics that were normally found in horses in particular circumstances. Those with knowledge of and experience with horses could reasonably be expected to be familiar with such characteristics. Where there is an equivalence of knowledge of a risk, such that both claimant and defendant are aware of it prior to the claimant exposing themselves to it, claims under s. 2(2) will be defeated by the s. 5(2) defence. But importantly, actual knowledge of the risk is still required and cannot merely be implied (Ford v Seymour-Williams [2021] EWCA Civ 1848).
Section 5(2) is applied differently where the accident was caused by a characteristic unique to the animal in question, i.e. under the other limb of s. 2(2)(b). There, if the defendant is aware of said characteristic and provides no warning to the claimant, a s. 5(2) defence will not succeed (Flack v Hudson [2001] QB 698 (CA)).
