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Court Success: Dismissal of a personal injury claim

At a glance

  • Zurich welcomes a court success following a personal injury claim at a riding stables.
  • Based on the evidence, the defendant was not liable for injuries sustained by the claimant, when falling off a horse during a led beach hack.

The Claimant was taking part in a led beach hack, when they claimed to have been thrown from the horse whilst riding due to firstly, the approach of wild ponies that startled it and secondly, an allegation that the saddle had not been properly fitted to the horse. A second horse also threw its rider from whom a separate non-litigated claim has been presented, with the claimant in that matter having suffered a fracture to their leg.

Legal arguments

At the start of the trial, the Claimant abandoned the Animals Act. This followed discussion between Counsel at Court, finding that the Insured would likely be able to make out the ‘statutory defence’ at Section 5 of the Animals Act, in that the Claimant had consented to the risk of injury, and that horse riding can be a dangerous activity.

The claim instead focused on allegations of negligence, maintaining that the saddle had been incorrectly fitted, insisting that as the horse turned to avoid the approach of the ponies the saddle was too loose and slipped, causing the claimant to fall. Our witnesses were impressive, explaining the manner that saddles are fitted and are not ‘fixed’ to the horse, and the weight of the rider can cause a saddle to move, whilst confirming that appropriate checks are in place to ensure the saddle is ‘tight’ enough. The judge accepted our witnesses’ evidence and found that the saddle had been properly fitted, and any movement was within normal tolerance.

The Claimant criticised the route taken, stating that it was foreseeably dangerous to choose a route past wild ponies. Our evidence was that that the insured had no prior knowledge of the wild ponies. The paddock had stood empty for many years, and whilst they had been told that there was a general plan to reintroduce ponies to the paddock, they had not been told when that was due to happen. The judge accepted the evidence of our witnesses.

Decision

The claim was dismissed. With the Animals Act abandoned, liability was focused on common law negligence only. The Judge accepted that the saddle was properly fitted, and that the insured had no knowledge of the wild ponies when planning the route for the day. As such, the Insured were not negligent.

Commentary

The Animals Act 1971 imposes strict liability and that can be an intimidating prospect. However, Section 5 provides a strong defence where the accident is nothing out of the ordinary, and it can realistically be said to be ‘part and parcel’ of horse riding. It is key to ensure that the form of consent is clearly worded and risks properly understood. In this case, it should be restated that the claim under the Animals Act was abandoned at Trial.

Insofar as negligence is concerned, liability will turn on a case by case basis, but we should not be concerned to set the bar too high, and must acknowledge that accidents can and do happen when willing persons are engaged in high risk activities. Clearly it was important in this case to conduct thorough enquiries with the relevant witnesses and ascertain the insured’s knowledge of foreseeable dangers.

On this occasion we took a commercial decision and agreed to meet the travel and accommodation costs of the witnesses, noting their attendance was vital and the cost of the second claim involving a leg fracture could be expensive and the chances of it being further pursued depended highly on the outcome of the litigated claim. Therefore, it was in the best interests of both Zurich and our Policyholder that the witnesses were able to attend. The hearing was held at a court 250 miles away from their home address. The customer was very happy with our commercial approach that they would be reimbursed these costs.

We are optimistic that the dismissal of the litigated claim will deter the second claimant’s solicitors from pursuing their claim, as the matter of foreseeability in respect of the wild ponies has already been dealt with and there is no reason to suspect the Court will find that the saddle of the horse which threw the second claimant was not as securely fitted as the other.

This claim was handled by Oliver Evans in our Birmingham Casualty Claims Team. Our panel solicitors Weightmans, represented us at court.

The law

The claim brought against the Riding Stables, consisted of three main parts: firstly, that the insured was negligent because they failed to fit the saddle correctly, such that it was loose and slipped. Secondly, the route was unsuitable and had not been adequately risk assessed, by allowing it to run past the wild ponies. Thirdly, the horse was dangerous and unsuitable by reason of its reaction to the approach of the other horses.
The claim set out to establish a breach of Section 2(2) of the Animals Act 1971 and the Claimant has to satisfy the 3 criteria set out in subsections (a) to (c):

(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

There is judicial disagreement as to whether being thrown from a horse is sufficient to establish breach of S2(2)(a). In the matter of Turnbull v Warrener [2012] EWCA Civ 183, the Court of Appeal was split, the majority finding that it is not. Maurice Kay LJ stated that where a rider is thrown from a horse, severe injury is reasonably to be expected; in these circumstances, breach would be established. However, Lewison LJ and Burnton LJ disagreed, holding that it is not self-evident that a rider falling from a rearing horse is likely to suffer severe injury – many such accidents occur without injury. Establishing breach will therefore turn on the specific facts of the case, and in this regard further investigation is required. The second incident involving a throw from a horse does cause some concern, as two incidents occurring in almost identical circumstances within moments of each other both caused injury.

(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

In the judgment of Mirvahedy v Henley [2003] UKHL 16, the House of Lords found that to rear or bolt when ‘spooked’ by another animal is a characteristic of horses which was normal ‘in particular circumstances’. As such, we believe the Claimant is likely to convince the court that this requirement is satisfied.

(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.

As the Court in Mirvahedy found that the characteristics are normal in certain circumstances, we do not believe it can realistically be argued that such characteristics were unknown.

 

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