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Equine: Likelihood of damage or severe damage - experience matters

With the transcript of the recent judgment in Lynch v Ed Walker Racing Limited [2017] now available, Amy Jeffs, a member of the Equine Group at DWF LLP, looks at the decision in more detail.

In the High Court, Langstaff J upheld on appeal the first instance decision dismissing a claimant stable lad's claim for injury under the Animals Act 1971 s.2(2), after a fall from a race horse. Lynch continues the trend seen in Turnbull v Warrener away from likelihood of injury or severe injury being taken for granted by both judges and the parties. A claimant will need to adduce evidence as to likelihood to succeed under the Act. Any solicitor acting for a claimant injured by a horse should consider whether, at the very least, their client can support his or her own case on likelihood of damage.  A potential claimant's own history of dealing with horses may be sufficient on its own to defeat a claim.

Facts

The Claimant was a stable lad who in 2014 was riding a horse, Wolfofwallstreet, in a string of nine horses.  Something spooked the lead horse resulting in the others spooking and whipping around.  Whilst the Claimant was able to stay on the horse as it whipped to the left and right, the horse then fell having lost its footing on a grassy bank causing the Claimant to fall and hit his head. The Claimant's claim was brought under s.2(2) of the Animals Act 1971, which imposes liability for damage caused by animals of a non-dangerous species where certain conditions are met.  S.2(2)(a) of the Act provides that a keeper of an animal will be liable for the damage if "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."

The Claimant had approached likelihood of damage on the basis that it was obvious and did not require evidence to be established, referring to previous decisions and the concessions made by defendants in many cases on the point.

At first instance, the judge dismissed the claim holding that likelihood of damage or severe damage were not matters of law which must be followed from case to case but would be determined by a review of the facts in each case. The judge was persuaded by the lay witness accounts of their own experiences. The witnesses all described a low likelihood of suffering injury based on similar past events. The first instance judge heard expert evidence to the effect that injury may occur but was not to be expected.

Appeal Findings

The appeal concerned the first instance approach to section 2(2)(a) dealing with likelihood of damage or likelihood of severe damage in the event that damage is in fact caused. A claimant must satisfy at least one of the two limbs of 2(2)(a).

The Act relies on the interpretation of "likelihood" for both limbs of 2(2)(a). After much historic judicial debate and following Lord Scott's review in Mirvahedy v Henley [2003] HL, likelihood is equated to "such as might well happen" or "reasonably to be expected" rather than an approach which requires events to be more likely than not to occur.  

On appeal, the Claimant argued that the judge had misapplied the test in 2(2) (a).  In relation to the first limb, the Claimant argued that the judge had been selective in her examination of the evidence and should not have reached the conclusion that some injury was not "reasonably to be expected".  Further, the Claimant argued that the trial judge had failed to address the second of the two limbs – if damage did in fact occur, was it likely to be severe?

Langstaff J found that the evidence from the witnesses, including the Claimant and expert, allowed the trial judge to reach the decision that injury from a falling horse was not likely.   

He took the view that although perhaps not fully examined in the judgment, the first instance judge's review of likelihood of damage had also covered the second limb - was severe damage likely? The expert and lay witnesses had given evidence that, for instance, in the case of a horse whipping round, the rider would not normally fall or would be able to jump from the horse. On this basis, injury was unlikely but if it did occur, was then unlikely to be severe. 

Comment

The incident involved a horse becoming spooked, whipping to the left and right and then falling over. As in most cases involving animals, there was a chain of events and action leading to the damage. The Animals Act requires a detailed consideration of the particular events and circumstances both for ss.2(2)(b) and 2(2)(a). (s.2(2)(b) deals with the likelihood of the damage or of its being severe being due to characteristics of the animal which are not normally found in animals of the same species or are not normally found except at particular times or in particular circumstances.)

Lynch considered the likelihood of damage and severe damage both from the whipping round but also from the horse falling. Claimants are required to identify the characteristic relied on in the animal. The defendant's representative should require the claimant to identify the characteristic relied upon under 2(2)(b), which must then be shown to be the cause of the likelihood of damage or severe damage under 2(2)(a). Defendant representatives will also want to bear in mind the chain of events since the courts may look at the whole in assessing likelihood.

The decision emphasises the importance of lay witness evidence. Where, as in Lynch, the witnesses have long experience of the particular animal or species and are commonly engaged in the same type of activity, their evidence as to what has happened in the past and what happened to other animals at the time of the incident, will be significant to the determination of likelihood.  Witness evidence from various sources was used in Lynch to build a picture of the normal course of events.  What would normally happen if a horse whips around? What was "reasonably to be expected"? That picture did not favour the Claimant's case.

In our experience, whilst witnesses acknowledge they were aware of a risk, and there can be little cogent argument against the idea that horse riding carries risks, they do not regard injury or serious injury as likely or "reasonably to be expected".  There is an obvious distinction between engaging in an acknowledged risky activity and engaging in it expecting to suffer injury or severe injury.  As the witness evidence demonstrates in Lynch, those working with and riding horses do so expecting that they will not suffer injury or serious injury. Their experience demonstrates that statistically these expectations are justified.  If anything, the recent case law would suggest that any assumption as to likelihood has shifted to one favouring defendants.

Likelihood of injury or severe injury by a horse is not obvious and is to be established on the facts in every case.   Lynch demonstrates that the lay and expert evidence of those dealing with horses makes likelihood a difficult hurdle for a claimant to jump.

The Claimant in Lynch sought to rely on the concession of likelihood under s.2(2)(a) in other cases, the inference being that likelihood should be assumed.  A review of Animals Act cases shows that concessions are often made on one or more of the subsections or not defended with any vigour.  The case law should be viewed by both sides in that context and Lynch demonstrates that potential claimants should not take comfort from concessions or poorly pursued defences elsewhere. 

 

Contact

DWF's Equine Group is lead by Kieran Walshe.

To discuss the implications of the decision, liability for damage caused by horses (or other animals) or the work of DWF's Equine Group please contact Amy Jeffs on 0151 907 3303 or  email amy.jeffs@dwf.law.

 

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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