EWJ Dec 2023 - Journal - Page 61
riding horses came with risks; that they may well come
across dogs on the ride; and, indeed, he had seen the
dogs on the beach when the group arrived on it. Their
presence did not make him question proceeding and
given his knowledge that any horse might buck in an
unpredictable way; a horse could be provoked into
that by loose dogs; and if a horse reacted in that way
he might fall and suffer serious injury, section 5(2) was
engaged. Accordingly, the claim was dismissed.
Findings and outcome
HHJ Harrison found that Max had not previously
behaved in a way around horses that amounted to a
cause for concern and up to the time of the accident
he had been minding his own business. There was
therefore no reason for the first defendant not to let
Max off the lead or to take a different approach. Having regard for Max's temperament and how he appeared to be behaving in proximity to the horses prior
to the incident, HHJ Harrison said it was difficult to
see how the reasonable person in the first defendant's
position would be required to act differently. He could
see how some dog owners in this situation would take
action by calling their dog or placing them on the lead,
particularly where they could see a cantering group
of horses were going to pass close to their dog, however, the question in this instance was whether it would
be negligent not to do so. HHJ Harrison confirmed
that the answer to this question would to some extent
depend on what an owner knows of their dog. If, as
was the case here, there was no background of similar
behaviour and if there was nothing more than a mild
interest being displayed to the horses during the walk,
then a failure to step in by the dog owner did not
amount to a breach of duty. On this basis he was not
persuaded that a reasonable person in the first defendant's position would have anticipated injury and, accordingly, the claim against the first defendant was
dismissed.
As an evidential point, the signing on form completed
by the claimant before the ride was not conclusive in
this respect but it had evidential weight.
Learning points
The judgment provides useful guidance on both the
law relating to the standard of care of dog owners who
are walking their dogs off the lead and on the applicability of section 2(2) and section 5(2) of the Act.
In relation to negligence against the dog owner, whilst
other owners may have stepped in and put their dog
back on a lead when faced with cantering horses on
the same beach, taking into account the owner's
knowledge of this specific dog and the dog's actions in
the lead up to the accident, there was not sufficient evidence to prove negligence. As confirmed in Whippey,
the court must be satisfied that a reasonable person in
the position of that dog walker would contemplate
that injury is likely to follow from their acts or omissions and 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 claim in negligence against the second defendant
also failed. The court was not persuaded that the lead
rider noticed Max in order to take a different line
across the beach or even that had she noticed Max,
given he was minding his own business, that she
should have taken a different line. HHJ Harrison confirmed that to require lead riders to assume a threat of
sufficient magnitude in these circumstances is to make
riding at a canter on beaches virtually impossible.
The judgment provides a useful reminder (and
indeed itself adds to) the growing case law on section
5(2) of the Act, which is particularly relevant when
dealing with cases involving those experienced in riding horses who continue to ride where they are aware
of a risk of injury.
Whilst the claim against the second defendant
succeeded under section 2(2) of the Act, it failed given
the defence afforded under section 5(2). In short, for
the purpose of section 2(2), as a result of a fall from a
violent buck, the damage was likely to be severe (for
the purpose of section 2(2)(a)) and it was accepted by
the second defendant that if the fall was found to be
from a violent buck, then (b) and (c) would be satisfied given this resulted from a characteristic of the
horse reacting to Max and the second defendant
would have knowledge of such a characteristic in
horses. However, the claim failed as, pursuant to section 5(2), the second defendant was able to establish
that the claimant voluntarily accepted the risk of what
occurred. Following a useful review of the case law that
has developed on the applicability of section 5(2), the
court concluded that there was nothing about the
horse in question that the second defendant could
have passed on to the claimant that would have
heightened his awareness of the risk and here the relevant risk was one of loose dogs, something that was
controlled by the actions of the lead rider who it had
been found was not negligent. The claimant was an
experienced horse rider with at least an equivalent
knowledge of the lead rider and he understood that
EXPERT WITNESS JOURNAL
Our Casualty Injury Team deals with cases like this on
a regular basis. For more information or advice, please
contact one of our experts.
www.dacbeachcroft.com/en/gb/people/richard-rowe/
Author
Richard Rowe
Partner
Richard advises insurers and corporate clients
defending Employers and Public Liability claims.
He has over 20 years’ experience advising across a
range of sectors including claims that arise within the
sporting arena, in which he specialises. In this area he
acts (and has acted) on behalf of sports governing bodies, sporting occupiers, motorsport teams, clubs and
participants in a wide range of sports, although predominantly Motorsport (both two and four-wheeled),
Football and Rugby. Richard also specialises in advising insurers on claims involving animals.
www.dacbeachcroft.com
59
DECEMBER 2023