QB-2018-004997 - [2025] EWHC 2301 (KB)

The Claimant’s case is that the Defendant is strictly liable to her for the fall pursuant to Section 2(2) Animals Act 1971. That section reads,

“(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.”

No judgment which dealt with section 2(2) would be complete without reference to the difficulties inherent in interpreting it. I have adopted the sequential approach to the section outlined by Lord Justice Neill in Smith v Ainger (Times 16 May 1990) and subsequently followed by, amongst others, Her Honour Judge Howells in Dennis v Voute & Another [2022] EWHC 2117, and Mr Justice Cotter in Boyd v Hughes [2025] EWHC 435. Lord Justice Neill set out his observations in 12 paragraphs, not all of which are applicable to every case and some of which have been the subject of later authority. Here, there is no issue as to whether Jazz belonged to a dangerous species, she did not; as to whether damage was caused to the Claimant by Jazz, it was; or as to whether the Defendant was Jazz’s keeper, it was. The statutory exceptions under section 5 also do not apply. That takes me to Lord Justice Neill’s paragraph (5),

“It is important that the court should consider paragraphs (a), (b) and (c) of section 2(2) in turn and that the trial judge should make the necessary findings of fact so that it is clear on what basis, if any, liability is established.”

I turn first therefore to the requirements of section 2(2)(a).

The Claimant has been consistent in the way she puts her case under this subsection. She relies on the second limb, that the damage was of a kind which if caused was likely to be severe. The damage in this case was personal injury. It is not disputed that the injury the Claimant in fact suffered was severe. Equally it is agreed that the test under section 2(2)(a) is a prospective test, turning on what was “likely”.

I am grateful to counsel for their assistance in addressing section 2(2)(a). There is a significant amount of agreement and their work has made the points at which they part company clear. I start with the matters on which they are agreed:

The parties’ respective lists of relevant context and circumstances had some differences.

Whilst acknowledging that my decision turns on the facts of this case, both parties invited me to look at how other judges had addressed the interpretation of the facts and circumstances in earlier cases involving falls from horses. The Claimant invited me to consider the decision of Mr Justice Langstaff in Lynch v Ed Walker Racing [2017] EWHC 2484 and the case of Koestler v Thomas [2024] PIQR P9 where Judge Harrison considered it a short step from a finding of a violent buck to conclude that the second limb of section (2)(2)(a) was satisfied. The Claimant further relied on the observation of Lord Justice Etherton (as he then was) in Freeman v Higher Park Farm at [34] that,

“It is obvious that, if a horse bucks on beginning to canter so that the rider falls off it is reasonably to be expected that severe injury will result.”

He drew an analogy between a horse which bucks and one which rears as the offending horse had done in Welsh v Stokes [2007] EWCA Civ 796.

The Defendant reminds me that, in the subsequent case of Turnbull v Warrener [2012] EWCA Civ 412 at [54], Lord Justice Lewison considered the observations of Lord Justice Etherton in Freeman and in Welsh to be ‘statements of fact rather than rulings on the law’. The accuracy of that is demonstrated by comparing the facts of Freeman to this case. Freeman involved much more experienced riders, hacking out, travelling at a canter (faster) and a fall occurring where there had been previous instances of the horse bucking.

The Turnbull case specific approach has been followed in later cases, see for instance Lynch v Ed Walker Racing at [32] and Boyd v Hughes [2025] EWHC 435 at [126] where Mr Justice Cotter observed,

“…The issue is fact specific and to be determined on the evidence before the Court. It is true that in some cases (Welsh being a paradigm) a fall onto tarmac with the horse then falling on top of the rider may mean that the conclusion as to likelihood can be easily reached. In other cases, and in my judgment the current case is one; matters are very far from so straightforward.”

Here there are two matters which I must determine before considering whether the circumstances were such that severe injury was reasonably to be expected. The first is the violence of the buck and the second is the point at which events become too proximate to the infliction of the severe injury properly to be taken into account when assessing its likelihood.

I turn first to the violence of the buck. In her November 2020 L/Bdr Oldfield described the buck as ‘small’. She was not cross-examined on that and I accept that it was her genuine recollection at the time she made her statement. She did not however qualify the word ‘buck’ in her accident report and I have not found her use of the word ‘small’ in a witness statement she produced five years later to be helpful. I accept equally the Defendant’s submission that the Claimant’s description of her fall in evidence is of a fall ‘forward and to the left’ as opposed to a projection upwards. The Claimant’s earliest description (the February 2016 description) is “as I turned the horse bucked and threw me off.” That could suggest some upward force but equally ‘threw me off’ might be being used in a looser sense. As she accepted in cross-examination the Claimant’s own perspective on the violence of the buck was necessarily limited. She did not see it coming. I do not find that the evidence establishes anything specific about the violence of the buck. What happened justified the use of that word, no more nor less.

On the second point of difference, I have concluded that taking into account the way in which the Claimant in fact landed is too proximate to the injury itself. The injury was caused by the contact between the Claimant’s shoulder and the ground and to take that into account would be to consider what happened not what was reasonably to be expected.

I must put myself in the position of a spectator (with an excellent view and plenty of time for analysis) at the point at which Jazz has bucked and the Claimant’s fall is inevitable. The relevant context and circumstances are

I take into account two further matters. The first is that I take notice of the general guidance provided by Ms Taylor at paragraph 9.5 of her report dated 7 July 2021,

“The majority of falls do not cause serious injury, but in saying that one is referring to a very wide range of circumstances. The likelihood of injury and the degree of injury depends on many factors. The speed and violence of the horse’s action, the height the rider falls from, how the rider lands and what surface the rider lands on.”

The second matter is that I must find that severe injury, such as that suffered by the Claimant was reasonably to be expected.

Having considered the matters set out above from the perspective I have outlined, I find that severe injury was not reasonably to be expected from the fall. The statistics favour no serious injury from a fall from a horse. The Claimant fell whilst unprepared and whilst travelling at a trot, not a canter, onto a relatively forgiving surface. She was unfortunate. It was an injury which could have been foreseen but was not reasonably to be expected. Whilst it did not play a part in my reasoning, I am fortified in my conclusions by the fact that severe injury does not appear to have been sustained by the riders in the three subsequent recorded instances of falls when Jazz bucked. Those incidents also took place at the riding school, also whilst she was travelling at a trot.

Whilst my finding as to the position under section 2(2)(a) is sufficient to dispose of the Claimant’s claimunder the Animals Act 1971, I have gone on to consider whether the Claimant would have met the requirements in section (2)(2)(b), had the position been different. Section (2)(2)(b) has two limbs. The first relates to the situation where a party can show that the likelihood of damage being severe was due to characteristics not normally found in animals of the same species. This has been distilled for the purposes of this case into the proposition that Jazz had an abnormal propensity to buck, which is acknowledged to be something not normally found in horses. As Ms Taylor told the court in evidence, all horses buck but normally for a reason and she would not expect a horse suitable for novices to buck unless there was a good reason.

Consideration of the first limb of section 2(2)(b) engages the issues that have already been explored when addressing Jazz’s temperament in the context of breach of duty. My conclusion in relation to that issue was that Jazz was a suitable horse for a novice rider such as the Claimant. She did not buck unless there was a reason for her so to do. As such she did not have an abnormal propensity to buck and the Claimant’s case under the first limb is not established.

The gateway offered by the second limb of section 2(2)(b) is a wide one as the well known decision in Mirvahedy has demonstrated. However it has limits. The likelihood of the damage being severe must be due to a characteristic not normally found in horses except at particular times or in particular circumstances. The characteristic must therefore be defined, as must the particular times or circumstances.

In his closing submissions Mr Lewers on behalf of the Claimant reminded me of the agreement of the equestrian experts,

“We agree that if the Defendant’s evidence is accepted and the three recruits were riding a manoeuvre across the school, that any horse feeling a rider’s loss of balance and lack of control, combined with the fact that the other two recruits and horses were moving away in the opposite direction, could [cause a horse to] buck.”

(Square brackets inserted by me.)

The Defendant has reminded me first that the characteristic must be one which save on particular occasions is not a characteristic of horses. It was not suggested however that it is a characteristic of horses to buck without there being particular circumstances to explain it.

It was further submitted by the Defendant that it was a necessary precondition of liability under section 2(2)(b) that I should be able to identify the time or circumstances at which the characteristic would normally be found and that for these purposes “normally” should be equated with “probably”. The fact that such a reaction was within the range of possibilities for a horse in the particular circumstances that pertained was insufficient. If it could be said that it would have been normal for a horse to buck and normal for a horse not to buck then that is not the sort of case intended to be caught by section 2(2)(b) and what happened should rather be seen as an ordinary riding incident. I reject that argument as inconsistent with the wording of the statute and the approach adopted in the authorities. When setting up the problem in Mirvahedy at [19] Lord Nicholls cited the vicious behaviour of a bitch with a litter not as probable behaviour by the species in the circumstances but as characteristic behaviour by the species in the circumstances. That accords with the wording of the statute. The Defendant’s contended for interpretation does not.

Finally the Defendant sought to draw an analogy between its case and the situation in Boyd v Hughes. It relied on the analysis of Mr Justice Cotter [182-184] which led him to the conclusion that the Claimant had not established a characteristic in that case. Those paragraphs were not quoted to me but, on examination, they are clearly not apposite to the situation here,

“182.

In my view the Claimant in this case has not established a characteristic that is normally found only at particular times or in particular circumstances; rather it is a general, normal characteristic of horses to shy/jink or move sharply (itself comprising a wide range of movement and markedly distinct to the more violent actions e.g. rearing, bucking or bolting) in response to a very wide range of sights or sounds present( or which the horse believes to be present) and which can occur at very many times and in very many circumstances which cannot be described or identified in any more detail or predicted.

183.

I consider there to be a material difference between a horse that rears, bucks or bolts in response to being startled or frightened by some identifiable external stimulus, or made to move forward when it does not want to do so, and a movement sideways in response to something which a horse sees or hears or believes it sees or hears and which it does not like or perceives to be a threat even when it is a wholly unpredictable response to an unidentifiable, ordinary and everyday part of the environment. I do not consider it a distinction without a difference. In my view it would so water down the requirement as to render it nugatory.

184.In my judgment it falls short of the line of adequate particularity. The Claimant would therefore not have satisfied section 2(2)(b) on the basis that my finding equated to a characteristic.”

(My underlining)

The distinction is drawn between a horse shying, jinking or moving sharply (the Boyd situation) and a horse bucking (our situation). One is a general normal characteristic and one is not.

The Claimant’s submissions in relation to the second limb under section 2(2)(b) are I find well founded. The characteristic not normally found in horses is bucking. The particular circumstances in which that characteristic is to be found are those defined by the equestrian experts and quoted above.

Section 2(2)(c) requires that the characteristics which fulfilled the requirements of section 2(2)(b) were known to the keeper. The issue of knowledge was considered by the Court of Appeal in Welsh v Stokes where Lord Justice Dyson observed at [70-71],

“It is not in dispute that subsection (2)(c) requires it to be shown that the keeper knew that the particular animal which caused the damage had the characteristics found to satisfy subsection (2)(b). The only question is how that knowledge can be proved. Miss Rodway submitted that it can only be proved by showing that the keeper knew that the particular animal had previously behaved in that way.

I do not agree. I do not see why a keeper’s knowledge that a horse has the characteristic of normally behaving in a certain way in particular circumstances cannot be established by showing that the keeper knows that horses as a species normally behave in that way in those circumstances. Indeed, the Mirvahedy case [2003] 2 AC 491 shows that subsection (2)(b) may be satisfied where the characteristic is displayed by the animal in the same particular times or circumstances as by other animals of the same species. It is a general characteristic of horses to bolt in the particular circumstances of the facts of the Mirvahedy case, or to rear in the particular circumstances of the present case. It makes no sense to require a keeper, if aware of that general characteristic, to have some additional and more particular knowledge.”

The passage I have quoted above from Welsh makes clear that thekeeper does not need to have knowledge of the characteristics of the particular horse. Knowledge of the characteristics of horses as a species in the particular circumstances will be sufficient. At paragraph 10.6 of her July 2021 report Ms Taylor’s observed that she would expect the keeper to have been aware that any horse might buck in the circumstances described. I interpret ‘the circumstances described’ to be a reference to the circumstances of the Claimant’s fall. Her analysis of the cause of the accident and that of Ms Ham, the Defendant’s expert, relied on their experience and knowledge of the behaviour of horses generally. I consider it reasonable to infer that the Defendant itself had a similar level of knowledge. Had it been relevant I would have found that the keeper was aware of the characteristics which fulfilled the requirements of section 2(2)(c).

I have found that the Defendant did not breach its common law duties to the Claimant and is not liable to her under section 2(2) Animals Act 1971. Those findings are sufficient to dispose of the issue of liability and I accordingly dismiss the Claimant’s claim. The Defendant however seeks a further finding that the Claimant has been fundamentally dishonest in relation to her claim and, if I am persuaded that is so, seeks my permission to enforce any order for costs ultimately made against her to the full extent.