UK: Animals Act 1971, Section 5(2) - Not A Dangerously High Horse!

As reported in our previous newsletter, defendants are starting to have considerable success in defeating claims brought under the Animals Act 1971 by relying on one of the three statutory defences to strict liability under section 2 of the Act. The recent Court of Appeal decisions in Goldsmith v Patchcott and Turnbull v Warrener continue the trend of success for defendants relying on the statutory defence, whilst also providing some useful guidance as to the manner in which section 5(2) of the Act, and the often criticised section 2(2)(b) of the Act, should be interpreted.

In Goldsmith, the facts were relatively straightforward. The defendant was the keeper of a horse called Red. He was looking to dispose of Red, and hoped to find someone to whom he could give the horse away for no charge.

The claimant was introduced to the defendant in March 2008. They discussed the horse and the claimant expressed some interest in taking it. She visited the defendant at his home on three occasions in short succession and rode the horse in the company of the defendant.

On 24 March 2008 she went for a ride on Red by herself. During that ride, Red reared up then bucked violently. The claimant was thrown to the ground and then struck by the horse's hoof, suffering severe facial injury.

During trial, the claimant agreed that she was an experienced, confident rider and that she knew the horse could be spooked for no apparent reason. She denied that she knew that Red had a tendency to rear and buck violently and claimed that, had she known this fact, she would not have ridden Red. She accepted, however, that she knew that horses could buck when startled or alarmed. The trial judge held that Red's bucking was a normal characteristic of horses in the particular circumstances of being startled or alarmed. The defendant had relevant knowledge of the characteristic and so, subject to the statutory defences, strict liability attached.

However, turning to the statutory defences, the trial judge found that the claimant was aware of the risk that horses would rear and buck if startled or alarmed and therefore had voluntarily accepted the risk of that happening.

The Court of Appeal was asked to consider whether or not the claimant had, in fact, voluntarily accepted the risk of injury for the purpose of section 5(2) of the Animals Act. It also reviewed the effect of section 2(2)(b) of the Act and in particular, considered the submission that the phrase "at particular times or in particular circumstances" denotes times or circumstances which can be described or predicted. As horses do not only buck when startled or alarmed, the Court of Appeal was asked to agree that bucking does not fall within the second limb of section 2(2)(b). The Court of Appeal rejected that argument, section 2(2)(b) should not be given a restrictive interpretation. The court accordingly agreed that the behaviour of Red in bucking fell within section 2(2) and that strict liability, subject to the statutory defence, applied.

The Court of Appeal considered the statutory defence. Having indicated that a non-restrictive approach must be taken to the interpretation of section 2(2), it indicated that, similarly, a non-restrictive interpretation should be applied to section 5. The claimant could not seek to differentiate between voluntarily accepting the risk of "normal" bucking, but not accepting the risk of the type of "violent" bucking that occurred in this case. The claimant foresaw the possibility of bucking and voluntarily accepted the risk. The fact that Red bucked more violently than anticipated could not take the case outside section 5(2) so as to defeat the defendant's defence.

In Turnbull the claimant and defendant were equally experienced horsewomen. The defendant, when she became pregnant, allowed the claimant to ride her horse, Gem. Following equine dental treatment, the defendant was advised that Gem should be ridden for a week with a bitless bridal. The defendant borrowed such a bridal and discussed its use with the claimant, as Gem had never experienced a bitless bridal. Gem had been ridden in an enclosed area to make sure that she was comfortable with a bitless bridal but was not cantered in that area.

The claimant then took Gem out on a canter. The horse pulled to the right, and veered onto a road where the claimant fell and sustained injury. At first instance, the trial judge considered that the claimant failed to establish liability under section 2 of the Animals Act, and that the defendant had a defence under section 5(1) in that the accident had been wholly caused by the claimant's negligence. The first instance trial judge indicated, however, that he could not accept that, for the purpose of section 5(2), the claimant had voluntarily accepted the risk of the injury which she eventually sustained.

The claimant appealed against the dismissal of her claim, and the defendant served a respondent notice arguing that the trial judge wrongly found that the claimant had not voluntarily accepted the risk for the purpose of section 5(2). The Court of Appeal was unable to agree as to whether or not, on the evidence, the claimant succeeded in arguments under section 2 of the Animals Act (the majority view being that she did not). The court unanimously agreed, however, that:

a) Defence under section 5(1) of the Animals Act, namely that the accident was wholly the fault of the claimant, should fail; and

b) Defence under section 5(2) of the Animals Act, namely that the claimant voluntarily accepted the risk of injury, should succeed

In respect of section 5(1), the court considered that, as both the claimant and defendant were equally experienced horsewomen, the defendant was in a position to insist that Gem should be cantered in an enclosed space before being allowed to canter in a field. Accordingly, in a statutory sense, the incident could not be said to be wholly the fault of the claimant. In respect of section 5(2), however, the court noted that the claimant knew that a horse, just fitted with a bitless bridal, bore an increased risk of not being responsive to a rider's instructions. That was the whole point of the initially cautious approach in the enclosed area. The claimant also knew that Gem had not cantered when fitted with the bitless bridal. In those circumstances, it was plain that she had voluntarily accepted the risk which occurred. As put by Lewison LJ "an individual who chooses to ride horses for pleasure no doubt derives enjoyment from being able to control a powerful beast. But inherent in that activity is the risk that on occasions the horse will not respond to its rider's instructions, or will respond in a way that the rider did not intend. That is one of the risks inherent in riding horses. That is all that happened in the present case."

Key points for defendants

  • Courts are prepared to support defendants who seek to rely upon the statutory defences in the Animals Act 1971
  • If the claimant is an experienced horse rider, always seek evidence as to the knowledge that one would expect to find in a horse rider of the claimant's general experience
  • Always seek evidence about the claimant's actual knowledge
  • Do not accept "fine distinctions on the facts". The courts will interpret section 5(2) by giving the words their ordinary meaning, in a non restrictive manner

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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