Animals Act latest: horse riders have accepted the risk

In the last few months the Court of Appeal have rejected two claims relating to a fall from horse on the basis that the Claimant had voluntarily accepted the risk. In both Turnbull v Warrener and Goldsmith v Patchcott the Defendant relied upon s.5(2) of the Animals Act 1971 which allows a statutory defence if it can be shown that the person who suffered an injury had voluntarily accepted the risk. The result has been celebrated by insurers, riding establishments and horse owners who have been lobbying for clarification of earlier “Claimant friendly” Court decisions. In Turnbull, Mrs Turnbull had been riding Mrs Warrener’s horse Gem regularly every weekend for about four months. The week before the accident Gem was taken to the dentist and Mrs Warrener was told that he should not be ridden using a bridle with a bit for the next few days. He had never been ridden with a bitless bridle before but Mrs Turnbull was happy to ride him. After about half an hour Mrs Warrener wanted to end the riding session but Mrs Turnbull wanted a canter. As she did so Gem suddenly went right and through a gap in the hedge at which point Mrs Turnbull fell off and injured herself. Mrs Trurnbull lost at trial and appealed. At appeal Lord Justice Maurice Kay found in favour of the Claimant in relation to s.2(2), saying:

1. 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 either contrary to received wisdom, or resulted from a failure to apply the correct test.
2. 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. If he had this would or should have resulted in the answer that it was such a characteristic.
3. The finding that there was no evidence to support the view that the Defendant knew of such a characteristic was questionable.

He felt that the Defendant did not have a statutory defence under s.5(1). This would have allowed Mrs Warrener a defence to any damage “which is due wholly to the fault of the person suffering it”. He said it would be wrong to find that the damage was all the Claimant’s fault. Either both the Claimant and the Defendant, or neither, were at fault in the statutory sense. However, he decided Mrs Warrener did have a defence under s.5(2). In his view it was plain that she had voluntarily accepted the risk which arose. He agreed with what was said by Lord Justice Jackson  said in the decision in Goldsmith that horses “may act out of instinct or impulse and their precise behaviour cannot necessarily be predicted”. As far as the Court of Appeal are concerned they have now made it clear that horses must be expected to behave in unpredictable ways. The decisions highlight once again the problems with s.2(2) of the Animals Act. Lord Justice Maurice one of the judges involved in Turnbull described the drafting of the Act as “grotesque”. In 2009, the Department for Environment, Food and Rural Affairs published a consultation on the Act and recommended changes but nothing has happened yet.