Horse riding accident claims fuelling the compensation culture myth?
The Animals Act 1971 and in particular Section 2(2) is renowned for the difficulties which judges have in its interpretation. Since the Acts introduction there have been numerous cases, predominantly involving dog injuries or those injured in horse riding accidents, where judges have been critical of the drafting of the Act. Lord Justice Jackson recently highlighted the difficulties in the case of Goldsmith v Bradley Patchcott in which he stated The language of section 2(2) is both oracular and opaque. Judges and jurists have spent the last forty years seeking to elucidate its meaning
The leading authority on the interpretation of Section 2(2) is Mirvahedy v Henley, which has bound the lower courts since. However, in the recent decision of Turnbull v Warrener, Lord Justice Lewison was vocal in his criticism of the approach set by Mirvahedy and in particular the supposed apparent favouritism it affords to claimants. He implied that injured people pursuing claims arising from horse riding accidents are fuelling the so-called compensation culture which he perceives, is developing in this country. Lord Justice Lewison is wrong. There will be claims that are bound to fail and it is questionable why two recently reported cases were even brought, but there are and will continue to be viable riding accident claims to be made, where claimants often have suffered catastrophic, life-changing injuries.
Claims brought within the ambit of the Animals Act tend to be ordinary riding injuries, but Lord Justice Lewison questioned whether that was the intention of parliament. He thought not, but in his view the law, following Mirvahedy, has developed to allow such claims. The Act imposes strict liability for injuries caused by an animal that falls within the definition of dangerous. This has no relevance to riding accidents. Horses are classified as non-dangerous, domesticated animals. Consequently strict liability is imposed only if all three conditions set out in Section 2(2) are met. This legislation states:-
“(2) 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.”
The problem lay in Section 2(2)(b) and specifically what is defined as a normal characteristic in “particular circumstances. In the lead judgment in Mirvahedy Lord Nicholls stated:-
“The] requirement (b) will be satisfied whenever the animal’s conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal’s behaviour was characteristic of the species in those circumstances.”
The courts have been bound since by this relatively broad interpretation and some judges, such as Lewison, see it as pro-claimant.
Consequently, in Goldsmith v Bradley Patchcot, when the claimant, an experienced and knowledgeable horse rider, fell from the horse because it bucked violently when startled by something, the Court of Appeal found that the conditions imposed by section 2(2) were met. The Court, adopting the approach in Mirvahedy found that bucking and rearing were normal characteristics of horses in particular circumstances, i.e. when they were startled or alarmed. Similarly, when the horse in Turnbull v Warrener, did not respond to instructions when taken out in a field for the first time wearing a bitless bridle and the experienced claimant fell, the Court of Appeal again found that the conditions imposed by Section 2(2) were met and strict liability ensued. The court found that a horse taking off when using a new piece of tack was normal behaviour in those particular circumstances.
On the face of it therefore, it is possible to understand why Lewison is so critical of the interpretation placed on Section 2(2)(b) when, as he states, review of the common law cases before the Animals Act would leave one hard-pushed to find a case where a claimant in an ordinary riding accident was successful and so arguably the interpretation must not have been the intention of parliament. Many would say that the rider has chosen to take part in a sport which carries with it an inherent risk of injury and consequently claims should not be successful. However, as the actual outcomes in both Goldsmith and Turnbull make clear, another section of the Act Section 5(2) – deals realistically and appropriately with claims where the risk has been accepted.
Section 5(2) affords a defence. A claim will be defeated if it can be shown that the claimant voluntarily accepted the risk. Consequently, whilst the Court of Appeal found in both Goldsmith and Turnbull that Section 2(2) was made out, both claims failed as Section 5(2) applied. Both claimants were experienced horsewomen and knew of the type of risks that could arise in particular circumstances.
A trawl of the case law identifies that this defence holds strong. In the unreported case of Plum v Berry (Preston County Court, 5 November 2004) the defence was made out where the rider was unseated due to the horse bucking for no apparent reason. The Court held that the risk of being unseated in such a manner was precisely the risk that a rider undertook and accepted when riding. Further in Freeman v Higher Park Farm, a horsing bucking when going into canter was a risk known to that claimant before she rode the horse. It did not matter that the horse bucked more violently.  Section 5(2) was made out.
Consequently, the realistic application of Section 5(2) means that the Lewison’s implication that such cases fuel the compensation culture myth is wrong. It is not borne out by the case law. Whilst such cases are not straightforward, claimants should not be prevented from bringing appropriate claims and should be protected from reckless horse owners who fail to warn of unusual characteristics (as in Flack v Hudson) or who allow inexperienced riders, with no real understanding of the nature of horses, to ride in an uncontrolled environment. Such people are entitled to bring claims and if, in doing so they reduce the number of unscrupulous owners, then this can only be a positive.