DAVID LYNCH v ED WALKER RACING LTD (15.6. 2017)
Langstaff J upheld on appeal a first instance decision dismissing a claimant’s claim for injury when he fell from a horse.
The appellant had been a stable boy employed by the respondent. He had been riding a two-year-old colt, “Wolfofwallstreet,” at walking pace in a string of nine race horses along a track beside a road. To the left of the string was a grassy bank. The horses became spooked by something which caused some, if not all, of them to whip around. The appellant’s horse whipped left and then right, lost its footing and fell over. The appellant fell off of the horse and hit his head, leaving him unconscious. The injury affected his powers of memory and concentration and he submitted a claim for over £1m.
The claim was brought under s.2(2) of the Animals Act 1971, which imposes strict liability for damage caused by animals of a non-dangerous species where certain conditions are met. Importantly, because the claimant was an employee, s.6(5) of the Animals Act excludes the statutory defence of volenti under s.5(2).
The drafting of s.2(2) is notoriously opaque. This particular claim turned on s.2(2) (a) of the Animals Act 1971, which comprises a two — limbed test: “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/appellant submitted that (1) it was obvious that if a two-year old racehorse was spooked and whipped around that some form of personal injury might happen and (2) if personal injury was caused as a result of the horse being spooked and whipping around, it might well be severe.
Following a 3 day trial of liability at first instance, HHJ Davies held that neither limb of s.2(2)(a) had been satisfied and dismissed the claim. The judge accepted the arguments for the defendant that, on the evidence of both the lay witnesses and the equine experts, injuries were rare as a result of a horse whipping around and that people rarely fell off a horse because it whipped. Therefore the court held it was unlikely that an injury would be caused by a horse whipping. (limb one). It was noted on appeal that an accident had not happened with the other riders whose horses had also been spooked and whipped around. The Judge’s conclusion had not been perverse.
On appeal it was held that, at first glance, it seemed that the judge might have erred. It appeared that she had looked at the first limb of s.2(2)(a) but not the second. The difficulty here was that the evidence on the likelihood of injury and the severity of the injury overlapped. The fact that a rider would usually be able to step off the horse when it whipped around and fell over, led to the conclusion that it was unlikely that a rider would suffer serious harm. Therefore, when the judge looked at the facts of the case and said that it was not common for a fall of the instant type, she might have been addressing the severity, as if an injury was unlikely at all then it was unlikely to be severe. (see comment.) The judge emphasised the speed, circumstances and seriousness; that went not only to the likelihood of an injury but its severity too. In any event, it was for the appellant to prove if an injury was likely to occur and whether it was likely to be severe. There was simply nothing other than the fact of the accident to take the appellant that far. Although there were reservations concerning the judge’s approach, the evidence before the judge was that if an injury occurred it was unlikely to be severe.
This article is written without the benefit of the transcript which is not yet available. It seems that the court at first instance benefited from expert and lay evidence on behalf of the defendant but it does not appear that the claimant had their own expert evidence. There is often expert evidence in Animals Act claims concerning the characteristics of the animal in question and it is not clear why the claimant did not call expert evidence. It would also appear that the submissions made by the claimant were in more general terms than those proposed by the defendant. The claimant’s submissions concerned injury caused by horses being spooked and whipping around whereas the defendant appears to have referenced the precise circumstances in which the injury occurred including speed, circumstances and seriousness.
It might have been thought that the two limbs of s.2(2)(a) were to be considered separately with second limb of seriousness of injury being considered as a distinct issue on the assumption that an injury occurred, no matter what the likelihood of that injury. That interpretation would be consistent with the claimant’s submissions set out above. However, the case note suggests that the court found that if an injury is unlikely to occur then injury is unlikely to be severe. If correct, it would seem that if a defendant can prove that an injury was unlikely, it must follow that injury was unlikely to be severe and s.2(2)(a) cannot be satisfied. Considering the two limbs in combination may result in a fairer outcome which enables a defendant to successfully defend a claim where an injury is unlikely to occur. The court, certainly on appeal, clarified that the Judge had considered the second limb and found injury was unlikely to be severe as a rider will normally be able to walk away if a horse falls over and therefore the second limb of s.2(2)(a) was not satisfied. The findings in relation to consideration of s.2(2)(a) in combination may become clearer when the transcript is available.
Caroline Wood is an experienced personal injury practitioner. She acts for both claimants and defendants in personal injury claims, including disease and clinical negligence claims. She successfully represented the defendant in Craig Michael Preskey v Carl Sutcliffe and Emma Sutcliffe, a dog bite claim, reported on lawtel.