An accident waiting to happen?

Michael McNally discusses various outcomes of accidents involving horses and the consequences of such accidents for the horse’s owner.

Accidents involving HorsesAccidents and injuries are of course part and parcel of keeping horses and riding them. Most accidents are minor, but some are serious. Suppose you run an equestrian facility, providing lessons and/or horses on which customers can ride out. Could you be liable for compensation if one of your horses kicks, rears or bucks, causing a serious accident? If you own horses privately and you allow friends to ride your horse, could you be liable if the horse spooks and the rider is seriously injured?

Determining negligence

There are two possible areas of law under which you could be liable. The first is common law negligence. This is fairly self-explanatory: were you negligent in some way – perhaps in providing to a customer a horse which was a known “problem”? In these circumstances, it is perhaps not unreasonable that you should be liable if the unwitting rider was injured when the horse did what it usually does and bucked its rider off. A sensible horse owner will not of course put someone out on a horse like this and so a negligence claim should fail.

There is, however, a further area of law under which you could be liable: s.2(2) of the Animals Act 1971, which provides for qualified strict liability in certain circumstances. This sounds complicated and unfortunately it is. A proper explanation as to how s.2(2) works would take up most of the pages of this magazine and so I will instead summarise as briefly as possible. To succeed with a personal injury claim under s.2(2), the victim must satisfy three tests in relation to the accident:

  • The likelihood test: was the damage likely?
  • The characteristic test: was the horse a dangerous “problem” horse or was it a normal horse but, at the time of the accident, behaving in a dangerous way because of the circumstances in which it found itself?
  • The knowledge test: were the horse’s characteristics known to its keeper?

In brief, therefore, s.2(2) makes the keeper of a horse liable where the horse’s behaviour was predictable.

Liability for accidents under s.2(2) became much better known following the decision of the House of Lords (now the Supreme Court) in the case of Mirvahedy -v- Henley and Henley [2003] UK HL 61. Following this case, many thought that the keeper (i.e. usually the owner, but it can cover more people than just the owner) was always liable where a horse caused an accident – but that is wrong and subsequent cases confirmed this; victims of accidents after 2003 often lost their cases.

Be clear with the facts

This was thrown into particularly sharp relief by three cases in the Court of Appeal in Spring 2012 and in particular the case of Goldsmith -v- Patchcott [2012] EWCA Civ 183. In this case, the victim tried out the horse with a view to acquiring it. The owner explained that the horse required an experienced rider. While the victim was trying out the horse, it became startled, reared up, then bucked violently and caused serious injuries to the rider. She sued, claiming that the owner of the horse was strictly liable under s.2(2). On the face of it, she appeared to have a good claim – but she failed. The reason is that the keeper of the horse has a good defence to such claims under s.5(2) of the Animals Act where the victim has “voluntarily accepted the risk…”. Here, the Court of Appeal decided that the rider was reasonably experienced and had accepted in the witness box that a horse could buck or rear whenever one got on it. The Court of Appeal therefore decided that this was enough to amount to “consent” and so the claim failed.

This case therefore is very good news for those who own horses, whether commercially or privately: as long as the rider is at least reasonably experienced and the horse does not have any hidden dangerous traits which you fail to tell the rider about, then the rider is very likely to “consent” in law to the risk of injury – and so would have no injury claim in the case of an accident.

Importance of Insurance

There is, however, one important caveat: the “consent” defence clearly can’t apply if the accident happens as a result of, for example, the horse escaping from a field when fleeing in panic from say a barking dog and causing an accident on the road. That is what happened in the Mirvahedy case – and the owners of the horses were found liable for the car driver’s serious injuries.

DEFRA has been considering reform of s.2(2) of the Animals Act since 2009, but nothing has happened so far and it is my view that nothing will happen. Consequently, it remains the case that, if you keep horses, you may be liable for any injuries they cause. The solution, however, is straightforward, make sure that you are insured for whatever your horse might do! While insurance may not stop accidents, it will save you from financial disaster.

If you would like more information about topics discussed above, please contact Michael McNally 01732 770660 or email [email protected]

“First published in LocalRider Magazine, February 2015”.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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