Turnbull v Warrener [2012] EWCA Civ 412

An experienced rider was injured after a horse fitted with a bitless bridle for the first time failed to respond and she fell. Her Animals Act 1971 claim failed because, although section 2(2) conditions were effectively satisfied, the Court of Appeal held she had voluntarily accepted the inherent risks of riding under section 5(2).

Facts

Nadine Turnbull and Rebecca Warrener were both experienced horsewomen. Mrs Warrener owned a horse, Gem, which she had ridden regularly between 2001 and July 2005 without incident. When she became pregnant, she arranged in November 2005 for Ms Turnbull to ride Gem regularly so that Gem could exercise and Ms Turnbull could have additional riding.

For some weeks before 26 March 2006 Gem had a tendency to pull his head to the right, thought to be due to a sore mouth. A dentist treated Gem by filing his teeth and advised that he should not be ridden with a bitted bridle for a week. Accordingly, Mrs Warrener borrowed a bitless bridle, which Gem had never previously worn.

On 26 March 2006 the parties discussed using the bitless bridle. Both were aware that new tack should prudently be tried in enclosed conditions. They tacked up Gem together and Ms Turnbull rode him in a lungeing school for about five minutes, then walked and trotted him in circles for 10–15 minutes in another enclosed area. They then moved to an outdoor space for 15–20 minutes. No difficulties were reported or observed.

After this, Mrs Warrener suggested ending the ride but Ms Turnbull wished to canter Gem up the field. Mrs Warrener said that if Ms Turnbull felt safe, she could do so. When Ms Turnbull set off, Gem went faster than expected, more like a gallop, and she visibly tried to restrain him. Gem then veered suddenly to the right, went through a gap in a hedge and Ms Turnbull fell onto a tarmac area, sustaining injuries.

Gem had never previously disobeyed riders’ instructions or failed to respond to attempts to control him. Expert equine evidence was called for both parties. The experts agreed, among other things, that horses are inherently unpredictable, that riding is a risk sport, that first use of a bitless bridle should be in an enclosed area, and that the rider is best placed to assess how a horse is responding to new tack. A manual, “The Bitless Bridle” by Dr Robert Cook, warned that some horses may show exuberant “free at last” behaviour when first introduced to such equipment and advised initial use in a small paddock or covered school.

Issues

At first instance, Ms Turnbull’s negligence claim failed because the judge rejected parts of her evidence as untruthful. On appeal she did not pursue negligence. The remaining issues concerned liability under the Animals Act 1971 and the availability of statutory defences:

Section 2(2): liability for non-dangerous species

• Whether the conditions in section 2(2)(a)–(c) were satisfied in relation to Gem, a horse which does not belong to a dangerous species.
• Section 2(2)(a): whether the damage was of a kind which Gem, unless restrained, was likely to cause, or, if caused by him, was likely to be severe.
• Section 2(2)(b): whether the likelihood of such damage or its being severe was due to characteristics of Gem not normally found in horses of the same species, or not normally so found except at particular times or in particular circumstances.
• Section 2(2)(c): whether those characteristics were known to the keeper, Mrs Warrener.

Section 5 defences

• Section 5(1): whether any damage was “due wholly to the fault” of Ms Turnbull.
• Section 5(2): whether Ms Turnbull had “voluntarily accepted the risk” of the damage.

Judgment

First instance decision

The county court judge rejected the negligence claim and also held that section 2(2) was not satisfied. He found that Gem was an ordinary domesticated horse, had never previously behaved as he did immediately before the accident, and was not likely to cause injury unless restrained or to cause severe injury. He considered that Gem had not technically “bolted”, but had simply gone faster than Ms Turnbull wanted, and that her inability to stop him was due to her use of a bitless bridle to which Gem was unaccustomed.

The judge concluded that Gem had no abnormal characteristics and that there was no evidence that it was “normal” for horses not to respond to riders’ instructions in these circumstances, nor that Mrs Warrener knew of such a characteristic. He also expressed that it was difficult to see that Parliament intended strict liability in such circumstances. He added that, if he were wrong on section 2(2), he would nevertheless hold that the injury was wholly due to Ms Turnbull’s fault in cantering off using the bitless bridle without further testing, thereby engaging section 5(1). He declined to find voluntary acceptance of risk under section 5(2).

Court of Appeal: approach to section 2(2)

Lord Justice Maurice Kay, with whom Lewison and Stanley Burnton LJJ agreed on the result, analysed the statutory framework and relevant authorities, including Mirvahedy v Henley, Welsh v Stokes, Freeman v Higher Park Farm, Clark v Bowlt and Goldsmith v Patchcott. He described the drafting of section 2(2) as “grotesque” and noted longstanding judicial criticism.

Section 2(2)(a)

On the second limb of section 2(2)(a) (likelihood of severe damage), Maurice Kay LJ noted that previous cases had usually treated severe injury as obvious or self-evident in comparable contexts. Here, however, the judge relied on expert evidence that most falls from horses do not result in severe injury:

“Q: So a fall in the circumstances such as this may possibly result in severe injury but its not likely?
A: It might occur, but statistically it probably won’t.”

Maurice Kay LJ held that this did not justify departing from the established understanding that serious injury is reasonably to be expected when a rider falls in such circumstances, and considered that the judge’s conclusion on section 2(2)(a) was not permissible, either because it was not supported by the evidence as properly understood or because the wrong test of “likely” had been applied. He therefore considered the second limb of section 2(2)(a) satisfied.

Lewison LJ and Stanley Burnton LJ, however, took a different view. Lewison LJ treated the expert evidence as properly supporting the judge’s factual conclusion that severe injury was not “likely” and would have upheld the judge on section 2(2)(a). Stanley Burnton LJ also considered it open to the judge to find that section 2(2)(a) was not satisfied on the evidence.

Section 2(2)(b)

Maurice Kay LJ reviewed authority establishing that section 2(2)(b) is to be interpreted broadly in favour of claimants, following the majority in Mirvahedy, and that “normally” in the provision means “conforming to type” rather than “usually”. He concluded that the trial judge’s question—whether it was “normal” for horses not to respond to riders’ instructions in these circumstances—was too simplistic.

Given the judge’s own finding that Ms Turnbull could not stop Gem because she was using a bitless bridle to which Gem was unaccustomed, Maurice Kay LJ considered that the proper enquiry was whether failing to respond to instructions when first ridden in a bitless bridle was a characteristic of horses unfamiliar with such equipment. He accepted the submission that:

“… by refusing to slow down on command or at all when using new equipment, specifically the bitless bridle, Gem was displaying a characteristic normal to horses in that he was conforming to type and displaying a natural characteristic, even if one unusually occurring. It was an effect of the equipment which the users’ manual specifically warned against.”

He held that the judge’s conclusion that section 2(2)(b) was not satisfied could not stand. Nonetheless, he expressed strong reluctance, noting that existing authority had “virtually emasculated” section 2(2)(b) and that Parliament likely did not intend strict liability in such circumstances.

Stanley Burnton LJ questioned whether section 2(2)(b) was in fact satisfied, pointing to the manual’s statement that such exuberance on first fitting a bitless bridle occurs in less than 1% of horses and doubting whether a one-off action could be called a “characteristic”. Lewison LJ also found it “questionable” whether section 2(2)(b) was met on the facts, while not dissenting from Maurice Kay LJ’s general interpretation.

Section 2(2)(c)

On keeper knowledge, Maurice Kay LJ held that the trial judge’s conclusion—that there was no evidence that Mrs Warrener knew of such a characteristic, whether in Gem or in horses generally—was also questionable. Referring to Dyson LJ’s statement in Welsh that knowledge of a general characteristic of horses can suffice, he pointed out that Mrs Warrener:

• knew that all new tack should be tried in an enclosed environment because horses may react unpredictably;
• ensured that Gem was initially ridden in an enclosed space;
• and, as an experienced rider, shared the expert understanding that a horse might react unpredictably to unfamiliar equipment.

He considered that these matters provided a proper evidential basis for finding that Mrs Warrener had the requisite knowledge under section 2(2)(c).

Section 5(1): damage due wholly to claimant’s fault

The trial judge had stated that, if he were wrong on section 2(2), he would hold that the injury was:

“wholly due to her own fault in cantering off on Gem as she did using a bitless bridle before testing him adequately with that piece of equipment at that speed in closed and/or open conditions.”

Section 11 defines “fault” by reference to negligence or acts or omissions giving rise to contributory negligence. Maurice Kay LJ identified a fundamental difficulty: the judge had found that there was “no material distinction” between the riding abilities of the claimant and defendant, and did not find that Mrs Warrener was negligent in allowing the canter. The experts agreed that Gem should first have been cantered in an enclosed area; Mrs Warrener could have insisted upon this but did not.

Maurice Kay LJ held that it was not open to find that the damage was “wholly” due to Ms Turnbull’s fault whilst absolving Mrs Warrener of negligence on the same factual matrix. Either both or neither were at fault; accordingly, the section 5(1) defence could not apply.

Section 5(2): voluntary acceptance of risk

By respondent’s notice, Mrs Warrener argued that the section 5(2) defence was available. Maurice Kay LJ adopted Etherton LJ’s formulation in Freeman:

“The words of section 5(2) are simple English and must be given their ordinary meaning and not be complicated by fine distinctions or by reference to the old common law doctrine of volenti … what must be proved in order to show that somebody has voluntarily accepted the risk is that (1) they fully appreciated the risk, and (2) they exposed themselves to it.”

He noted the factual similarity with Goldsmith v Patchcott, where both parties knew that horses could buck when startled but did not foresee the precise violence of the bucking; nevertheless, the section 5(2) defence succeeded.

In this case, Ms Turnbull knew that a horse first fitted with a bitless bridle bore an increased risk of not being responsive to instructions, which was why Gem was initially ridden in an enclosed arena. She also knew that Gem had not yet cantered in the bitless bridle when she chose to canter him in the open field. Maurice Kay LJ concluded that she had voluntarily accepted the very risk that materialised.

He cited with approval the Recorder’s observations in Plum v Berry (quoted in Goldsmith):

“… the risk of being unseated by such an event is one which any rider who is competent to canter and hack accepts. Riding is a pursuit involving the control by a rider with the wind and the aids of rein, leg, seat and crop of a horse with its own mind and physical attributes. That relationship and activity involving two living beings cannot be precisely predicted or judged to the second or the centimetre. The occurrence of an accident in such a manner as I have found is precisely the risk and type of risk which a rider undertakes.”

He also emphasised the symmetry of knowledge and experience between the parties: if, as he considered, Mrs Warrener’s knowledge sufficed under section 2(2)(c), it would be difficult to deny that Ms Turnbull possessed similar knowledge for section 5(2) purposes. On that basis he held that the section 5(2) defence was made out.

Stanley Burnton LJ “entirely” agreed that section 5(2) succeeded and that section 5(1) did not. Lewison LJ, though differing on some aspects of section 2(2), also relied on section 5(2) as providing an appropriate balance, drawing an analogy with Lord Hobhouse’s warning in Tomlinson v Congleton BC against undermining individuals’ liberty to engage in inherently risky but otherwise harmless activities:

“They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk … The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly the interference with the liberty of the citizen.”

Lewison LJ concluded that inherent in horse riding is the risk that the horse will not respond as intended to the rider’s commands, and that this is precisely the type of risk a rider accepts.

Implications

The Court of Appeal unanimously dismissed the appeal, though by differing routes. Maurice Kay LJ regarded the county court’s conclusions on section 2(2)(a)–(c) and section 5(1) as flawed but held that section 5(2) provided a complete defence because the experienced rider had voluntarily accepted the inherent risks of riding a horse, particularly when using unfamiliar tack.

Stanley Burnton and Lewison LJJ expressed strong reservations about the breadth and development of strict liability under section 2, especially as applied to ordinary riding accidents, and emphasised the importance of voluntary assumption of risk in maintaining a fair balance between riders’ autonomy and keepers’ liability.

The case confirms that:

• In experienced-rider cases, even where section 2(2) conditions may be satisfied, section 5(2) can negate liability where the rider fully appreciates and accepts inherent equestrian risks, including unpredictability with new equipment.
• Section 5(1) requires that the damage be wholly due to the claimant’s fault; where responsibility is potentially shared, that defence will fail.
• Courts remain critical of the drafting and judicial interpretation of section 2(2), and legislative clarification has been mooted but not implemented.

Verdict: Appeal dismissed; the claimant’s Animals Act 1971 claim failed and the defendant was not liable, principally because the claimant had voluntarily accepted the risk under section 5(2).

Source: Turnbull v Warrener [2012] EWCA Civ 412