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Turnball v Warrener, Court of Appeal, 3 April 2012

17 April 2012
The issues

Animals Act – horse – voluntary acceptance of risk – grotesque drafting of parliamentary act

The facts

Nadine Turnball and Rebecca Warrener were experienced horse women. Mrs Warrener owned a horse called Gem. When she become pregnant she stopped riding Gem and made an arrangement with Ms Turnball that she would ride Gem thereafter on a regular basis. For four months Ms Turnball rode Gem at the weekends. On 26 March 2006 she fell and was injured. For some weeks before the accident there had been a problem with Gem in that he had tended to pull his head to the right. He was taken to the dentist where he had his teeth filed because the tendency was put down to the horse having a sore mouth. The dentist advised that Gem should not be ridden using a bridle with a bit for a week. Mrs Warrener borrowed a bitless bridle. Ms Turnball discussed riding Gem with a bitless bridle with Mrs Warrener. Gem had never experienced a bitless bridle before but Ms Turnball was content to ride. They commenced riding Gem in confined conditions for about five minutes in the lunging school before walking and trotting him in circles for 15 minutes in another enclosed area. They then moved to an outdoor space for 20 minutes. Ms Turnball did not indicate she was having any difficulty with Gem, and Mrs Warrener did not see Gem reacting differently to the bridle. Mrs Warrener then suggested that they call it a day but Ms Turnball said she wanted to take Gem for a canter up the field. The canter seemed to be more like a gallop and Ms Turnball was seen trying to restrain Gem. Gem suddenly veered to the right and went through a gap in a hedge. At this point Ms Turnball fell off. At trial the judge dismissed the claim bought under the Animals Act 1971. The claimant appealed.

The decision

S.2(1) provided for liability where any damage was caused by an animal belonging to a dangerous species on the part of the keeper. S.(2)(2) provided “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.”

The drafting of s.2(2) was grotesque. It had attracted four decades of judicial and academic criticism (Lord Justice Maurice Kay).

Concern was expressed about the way in which the law had developed. The Animals Act 1971 had originated in the Law Commissioners report on civil liability for animals. The purpose of that report was to make recommendation for the modernising and simplifying of the common law. It intended to provide that liability would attach to animals which had a propensity to attack, either because they belong to a dangerous species, or because the particular animal had that propensity. There was no intention to widen the existing scope of the law to the extent that would be necessary to catch an ordinary riding accident.

The judge concluded that as to the first part of s.2(2)(a), because Gem had never behaved in such a way before and because he was an ordinary domesticated horse, he was not likely to cause the kind of damage in question. That finding had not been challenged. He had also concluded on the basis of the expert evidence that the damage was not of a kind that the animal unless restrained was likely to cause. This he was entitled to do (Maurice Kay LJ dissenting on this point).

This provision had been described as being “opaque”, “tortuous” and most recently “oracular”. The interpretation that the cases has placed on s.2(2)(b) had virtually emasculated it. The Court of Appeal was bound by the view expressed by the majority of the House of Lords in Mirvihedy as expressed by Lord Nicholls: “the fact that an animals behaviour, although not normal behaviour for animals of that species was never the less normal behaviour for the species in the particular circumstances, does not take the case outside s.2(2)(b).” The judge had asked himself “whether it was normal for horses not to respond to riders’ instructions in these circumstances and said he could find no evidence to support such a contention. This approach was too simplistic having regard to the authorities. He should have considered whether refusing to respond to instructions given through the bitless bridle was a characteristic of horses unfamiliar with such equipment and such consideration would or should have resulted in the answer it was such a characteristic”. The judges finding on section s.2(2)(b) could not stand although this conclusion was shrouded in reluctance.

The judge had found no evidence to support the proposition that Mrs Warrener knew of such a characteristic whether in Gem or in horses generally. This was a questionable conclusion. Mrs Warrener knew that horses might react unpredictable on using equipment with which they were unfamiliar. The expert evidence supported the view that horses should progressively be taken through walking, trotting and cantering in an enclosed environment. This provided an evidential foundation for a finding of knowledge. The judge’s reliance on the fact that Gem had never before disobeyed riders instructions all failed to respond to a riders attempt to control him ought not to have been determinative.

The conclusion of the judge on s.2(2) were therefore flawed.

As to the statutory defence, there was no evidence to suggest that the accident was the fault of Ms Turnball within s.5(1). However, as to s.5(2) Ms Turnball knew that a horse fitted with a bitless bridle for the first time bore an increased risk of being unresponsive to instructions. In those circumstances it was plain that she had voluntarily accepted the risk which eventuated. Mrs Warrener therefore had the defence provided by s.5(2).

Appealed therefore dismissed.

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