EWJ Dec 2023 - Journal - Page 60
Koetsier v Thomas &
Nolton Stables [2023]
Richard Rowe, Partner and expert in claims involving animals acted on behalf of the
successful dog owner in a claim for significant damages brought in the High Court by a
horse rider who was seriously injured after the horse he was riding reacted to a dog that had
approached it. The case provides useful guidance on the duty of care owed by those who exercise
their dogs off the lead and on the provisions of the Animals Act 1971.
defendant were negligent. He argued that the first
defendant should have been aware of the presence of
the cantering group and should have taken action to
restrain or control Max. He was close enough to recall
Max (who was an obedient dog) but chose to do nothing. As against the second defendant, he argued that
the lead rider of the group rode too close to Max and
instead should have followed a different line along the
beach. He also argued that the second defendant was
in breach of section 2(2) Animals Act 1971 ("the Act").
At trial he withdrew allegations that the first defendant was in breach of this and pursued the claim in
negligence only against him.
The facts
While on holiday in the UK, the claimant booked a
beach horse ride with the second defendant stables.
The claimant was an experienced horse rider who
had competed in dressage, show jumping and cross
country in his native country, and after he completed
the signing-on process for the ride in question, he was
allocated an appropriate horse that was owned by the
stables. He was also allocated to the experienced
group with three other riders who would be led by a
lead rider employed by the stables.
During the signing-on process, each participant
completed a form that included confirmation they understood riding at any standard had inherent risks,
that horses may act unpredictably and that they could
fall off and be injured. This was well known to the
claimant given his own experience.
The law
Whippey v Jones [2009] EWCA 452 confirms that when
considering a claim based on the actions of a dog that
was off the lead, before holding that the person in control of the dog had fallen below the standard of care
and had acted negligently, the court must be satisfied
that a reasonable person in the position of that person
would contemplate that injury is likely to follow from
their acts or omissions. The remote possibility of injury
is not enough; there must be a sufficient probability of
injury to lead a reasonable person in the position of the
person in control of the dog to anticipate it.
The beach where the ride in question took place was
a public beach on which dogs are permitted to be
walked off the lead. After the groups rode from the
stables and entered the beach, dog walkers were present. This was not unexpected and the stables own risk
assessment provided controls that should be applied
by lead riders where any dog took an interest in or
approached the horses.
Section 2(2) of the Act provides that where damage is
caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable if:
The first defendant was on the beach at the time
walking his West Highland Terrier named Max. Max
was off the lead. He was regularly walked on the beach
and he had encountered the horses from the stables
previously without incident.
l 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
After cantering along the beach, the experienced
group, with the claimant riding his horse at the rear of
the group and the lead rider at the front, drew level
with Max. To this point, Max had not been particularly engaged by the horses but on this occasion, as the
group passed him, he took an interest and ran towards the back of the group. Noticing Max's presence,
and on the instruction of the lead rider, the experienced group slowed to a stop. Max continued to run
towards the back of the group and when he was at the
heels of the horse being ridden by the claimant, the
horse violently bucked, causing the claimant to be
thrown and land on the sand. As a result he suffered
serious spinal injuries.
l The likelihood of the damage or of it 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 time or in
particular circumstances; and
l Those characteristics were known to that keeper.
Section 5(2) of the Act provides that a person is not liable under section 2 for any damage suffered by a person who has voluntarily accepted the risk thereof.
Freeman v Higher Park Farm [2009] PIQR P6 confirms
that what must be proved in order for someone to
have voluntarily accepted the risk is that, (1) they fully
appreciated the risk and (2) they exposed themselves
to it.
The claimant subsequently pursued a claim for
personal injury alleging that both the first and second
EXPERT WITNESS JOURNAL
58
DECEMBER 2023