Tightening the Reins: horse-riding accidents and the Animals Act 1971

Judicial criticism of the Animals Act 1971 is not new. Only a few years after it came into force, Lord Denning accurately predicted the future when he said of s.2(2) “The section is very cumbrously worded and will give rise to several difficulties in the future”. (Cummings v Grainger [1977] QB 397)

In 2012 the Court of Appeal gave the Animals Act another kicking in two cases involving horse riding accidents. In both cases the Court of Appeal was keen to emphasize that horse riding was a risk sport, bringing the statutory defence in s.5(2) (voluntary acceptance of risk) into play. Additionally, in one of the cases a defendant’s argument on s.2(2)(a) succeeded. This article looks at whether the judicial approach to claims for injury arising out of horse riding accidents has changed as a result.

Goldsmith v Patchcott [2012] EWCA Civ 183 was a case where the claimant fell off the defendant’s horse called Red when it reared up and then started to buck. At trial the claimant abandoned her claim in negligence and only pursued the claim under the Animals Act. The defendant did not dispute that s.2(2)(a) of the Animals Act was satisfied. The Judge found that s.2(2)(b) was satisfied as it was a normal characteristic of horses to rear and buck in circumstances that they are startled or alarmed. She also found that this was known to the defendant and so s.2(2)(c) was proved. However the judge at first instance dismissed the claim on the basis of the statutory defence in s.5(2). This was because the claimant had accepted in cross-examination that there was a risk when riding any horse that it may rear or buck if startled or alarmed. The claimant appealed. The Court of Appeal upheld the first instance Judge’s decision, describing the language of s.2(2) as oracular and opaque.

Turnbull v Warrener  [2012] EWCA Civ 412 followed closely on the tail of Goldsmith with a different composition of the Court of Appeal. The claimant was exercising a horse called Gem for the defendant, his owner. Gem was normally well behaved but was being ridden by the claimant in a bitless bridle for the first time. Having behaved well initially in a school, the claimant decided to take Gem for a canter up the field whereupon she lost control of Gem and fell off. The claimant failed in her claims for negligence and Animals Act at first instance.  She appealed on the Animals Act point only. The defendant cross-appealed on the basis that the defence in s.5(2) also applied. The Court of Appeal disagreed with the first instance judge on almost every issue apart from the overall conclusion: the claimant failed.

Two interesting points come out of this judgment: (1) the approach to s.2(2)(a); and (2) the reinforcement of the statutory defence in s.5(2).

The judge at first instance had found that the claimant had not satisfied either the first or second limb of s.2(2)(a). The alternate second limb of s.2(2)(a) requires the claimant to prove that the damage was of a kind which, if caused by the animal, was likely to be severe. This is not proved by considering the actual injury sustained by the defendant. The claimant’s expert, Charlie Lane, had agreed in cross-examination that a fall in the circumstances of the accident might cause severe injury, but statistically it probably won’t. The Court of Appeal noted that in previous cases the second limb of s.2(2)(a) seems to have been conceded by defendants and that this was a novel point. Bucking the trend, the Court of Appeal in Turnbull upheld the judge’s finding on s.2(2)(a) but only by a majority. Burton LJ said that the finding was open to the judge on the evidence and Lewison LJ went further and disagreed that it was self-evident that someone who falls off a rearing or bucking horse would suffer severe injury. He pointed out that:

the issue that has not been squarely confronted yet is the level of generality at which you ask and answer the question in the second limb of s.2(2)(a).  For example if the question is: if you fall off a rearing horse onto a hard surface and the horse falls on top of you is the injury likely to be severe, you may get one answer. But if the question is: if you fall off a horse is the injury likely to be severe, you may get another.

The Court of Appeal also found that the defendant had made out the s.5(2) defence.  Lewison LJ expressed concern that there had been a major (and unintended) explanation in the potential scope of strict liability if the Animals Act was to cover ordinary riding accidents. He stated:

You will search the classic pre-Animals Act text book (Glanville Williams: Liability for Animals (1939)) in vain to find a case in which a horseman or horsewoman who lost control of a horse and fell off successfully sued the owner of the horse for damages. I suspect that our Georgian and Victorian ancestors, for whom the horse was a common means of transport, would have scoffed at the idea.

In two subsequent Animals Act cases arising out of riding accidents, the stricter approach to interpreting s.2(2)(a) has gained traction. In a decision of Recorder Moulder in Kublin v Jane Allison Equestrian Limited [2013] 30.04.2013 Oxford CC the claimant was an employee of the defendant and was injured while riding one of the defendant’s horses called Olly. Olly spooked and spun around, falling in the process and trapping the claimant’s leg. She brought a claim in negligence, breach of statutory duty and under the Animals Act. The Recorder followed the reasoning in Turnbull and found that the claimant’s Animals Act claim failed on s.2(2)(a) on the basis that it could not be said that serious injury was reasonably to be expected even if a horse slipped and fell on the rider. The claimant also failed in her claims for negligence and breach of statutory duty.

In a decision of Langstaff J in Lynch v Ed Walker Racing [2017] 15.06.2017 QB the claimant was a stable boy employed by the defendant who was riding a two year old colt in a string of race horses. The horse spooked, whipped around and lost its footing causing the claimant to fall off. The claimant lost at first instance and also lost his appeal. Langstaff J upheld the decision of the first instance judge that the claimant had not satisfied either of the limbs of s.2(2)(a) of the Animals Act. 

Contrast these cases with the widely reported (“Paralysed horse fall teen wins £3m compensation bid” BBC news 04.11.2016; “Paralysed teenager wins £3m legal battle with implications for every horse owner” Independent 12.11.2016) case of Harris v Miller [2016] EWHC 2438 which the 14 year old claimant fell from Polly, a horse recently purchased by the defendant.  She brought a claim in negligence and the Animals Act although she did not pursue the Animals Act claim at trial to the relief of all concerned. The majority of the judgment is given over to the factual findings but HHJ Wood QC’s decision on negligence commences at paragraph 149 of the judgment.  He found the defendant negligent for permitting the claimant, a young person she was responsible for, to ride Polly, a green thoroughbred, in an open field when she did not have enough knowledge of the horse and her behaviour.  In my view, this case is quite specific on its facts. I consider it likely that a different result would have been reached had the claimant been an adult. In Animals Act cases at least, it seems it will now be very difficult to establish liability in the case of ordinary riding accidents.